It’s Elementary: Federal Judge Confirms Sherlock Holmes Is Still Firmly Within the Public Domain

Despite it being more than 125 years since Sir Arthur Conan Doyle introduced Sherlock Holmes to the world, he is still as fascinating to the public in 2014 as he was back then. And, more to the point, he is as much of a money maker. Sherlock Holmes: A Game of Shadows, the 2011 film starring Robert Downey Jr. grossed over $500 million. Doyle would be happy to know that Holmes is still so appealing so many years after being written.

Moreover, Holmes lovers currently have two television series running to satiate their love for the great detective. There is CBS’s Elementary, starring Jonny Lee Miller as a modern NYC Holmes and Lucy Liu as Joan Watson, the female analog to John Watson in the original story. Elementary is currently running its second season. And then there is also Sherlock, the BBC version of the modern Holmes, starring Benedict Cumberbatch as the detective and Martin Freeman as Watson. This version is currently on its third season if you are watching in America on PBS.

So, with so many popular Sherlock spin-offs running, it might seem a reasonable question to ask: how much of the proceeds are going to the estate of the late Sir Arthur Conan Doyle? In most jurisdictions, the answer is none. Copyright law in England and every jurisdiction aside from the United States used a “life-plus” model in 1930 (the year when Doyle died). This meant that copyright protection ended 70 years after the death of the author. America eventually reformed its copyright rules in 1978 to fit this model. The works of Doyle, however, are still under the old rules in the United States, which fix a 95 year term from first publication. This means that in the United States, there are still ten Holmes short stories which have protection until January 1st, 2023.

This complicated copyright history was the subject of a recent lawsuit, Klinger v. Conan Doyle Estate, LTD. Leslie Klinger, the co-editor of A Study in Sherlock, sought this declaratory judgment in the Northern District of Illinois to fight requests by Doyle’s estate for licensing fees associated with the use of Holmes’s name, identity, and characteristics in his anthology of original short stories inspired by Doyle’s work. Doyle’s estate argues that because 10 short stories are still protected, use of any aspect of the Sherlock Holmes canon should be subject to fees because “a literary character really does not become entirely formed until the author has put down his pen and finished with the last story that develops that character.”

Klinger, who had previously paid a $5,000 licensing fee to Doyle’s estate for A Study in Sherlock, told The New York Times in February, “enough is enough.” He argued that the elements of Sherlock Holmes that are used in A Study in Sherlock were introduced in the first Holmes stories, which everyone agrees are now part of the public domain.

The Illinois federal court agreed with Klinger, ruling that Holmes, Watson, and other elements of the original stories are within the public domain, and that only details from the stories published after January 1st, 1923 are protected from use. However, Benjamin Allison, the attorney representing Doyle’s estate, stated that the estate is considering an appeal to the decision.

The lawyers associated with Elementary, the film adaptations of Sherlock Holmes, and the printed works of Doyle should take careful note of this decision to assure their clients that no licensing fees to the Doyle estate are necessary.

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* John Hodnette is a second year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in English, with a minor in Philosophy, from Auburn University. Upon graduation, he intends to practice in the Chicago area.