Public Domain – It’s Elementary by Robin Roberts

*I’m sorry, I meant to write a post about what is art and why it can’t be stifled by cliques, but I had some distressing news this morning.  Nothing personal, or at least nothing pertaining to me except in the sense that it happened to a friend.  I’m sitting here feeling gutted. So, I am putting up the oldest of the guest posts I have, and also a useful one. – SAH*

Public Domain – Its Quite Elementary

Last summer, the Seventh Circuit gave us a ruling in the Sherlock Holmes case. The case was initially brought as what is called a “declaratory judgment” case. This means that that plaintiff was someone who wanted to use Sherlock Holmes stories without paying a license to the Conan Doyle Estate and asked the court to rule that he could. Sort of the opposite of being sued for infringement, he wanted a ruling in advance. Federal courts will only do this kind of thing in narrow circumstances.

Here’s the link to the appellate court ruling if you want to follow along:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D06-16/C:14-1128:J:Posner:aut:T:fnOp:N:1363624:S:0

There are 56 stories and 4 novels in the Sherlock Holmes canon. Ten of those were published between 1923 and 1927, and so are still in copyright in the United States (we are only discussing US copyright law today) until between 2018 and 2022. You might want to go back to my earlier postings to see a longer discussion of copyright term but for now, just realize that the current scheme of calculating copyright term – life of the author plus 70 years – does not apply to works created back then.

The plaintiff, Leslie Klinger, edited an anthology of stories by other authors writing stories using the Sherlock Holmes / Dr. John Watson characters believing that he did not need a license for the public domain stories. Klinger never argued he could use the material that appears solely in the later 10 stories. The Conan Doyle estate told the publisher that it needed a license, and that publisher paid the estate for such. Klinger then started a second anthology and was negotiating with a second publisher to publish it when again, the estate threatened to stop publication in the absence of a license. So eventually Klinger decided to ask the court for a declaration that the works did not need a license. The Conan Doyle estate responded to the lawsuit, and argued that since some of the stories were still in copyright that all of the “characters” of Sherlock Holmes and Watson were protected. As one could not separate out the protected portions of their characters from the non-protected portions of their characters as expressed in the earlier, now public domain, stories. There argument was “ …copyright on a “complex” character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain.”

The trial court agreed with Klinger and issued a declaratory judgment. The Conan Doyle estate appealed that judgment and the appeal was heard by a Seventh Circuit panel that included Judge Posner – who is a rather famous appellate court judge. The estate had two arguments before the appellate panel. The first was a technical argument about whether or not the court had jurisdiction – those narrow circumstances where a Federal court is allowed to make a declaratory judgment – and the second was the argument about the characters spanning public domain and protected stories. We won’t discuss the technical argument as its boring to just about everyone but suffice it to say that the appellate court found that there was jurisdiction in this case.

One of the arguments that the estate made to support their argument regarding the protection of the characters was that an author might be discourage from creating new works if his character was not protected beyond the expiration of the copyright of the earliest stories containing that character. The court found this a pretty silly argument given that A.Conan Doyle is dead now some 84 years and that similarity other authors going forward are unlikely to themselves be above room temperature when this circumstance occurs. Difficult enough to incentivize live authors to write, isn’t it? The completely dead ones have no resistance to writers’ block at all.

Judge Posner also wrote that the opposite was true, that if the estate’s argument was successful that authors would be incentivized to keep writing derivative works based on their earlier works to extend copyright protection rather than write entirely new works with new characters. An interesting point, but perhaps the weakest of Posner’s argument given the copyright term structure today.

Posner had more fun with an estate argument that attempted to create a distinction between “flat” and “round” characters. Discussing the estate’s argument that a character that was thinly developed in earlier stories became more “round” in later stories and so deserved longer protection, Posner ridiculed plaintiff’s attorney saying “Repeatedly at the oral argument the estate’s lawyer dramatized the concept of a “round” character by describing large circles with his arms.” You will have to take my word for it that attorneys never like their clients to see a court opinion that ridicules their rhetorical work.

After that bit of fun, Posner tells us rather plainly and clearly that the elements in a story that has reached the end of its copyright protection and entered the public domain are completely in the public domain and that the existence of later, still protected, stories do not alter that.

And so Klinger gets his declaratory judgment affirmed by the appellate court, and he can publish without license stories that incorporate elements from the 50 public domain Sherlock Holmes stories – but not the later 10 stories.

Robin Roberts is an attorney practicing in Denver Colorado. The firm’s website is http://www.robertsandroberts.net