Seventh Circuit Rejects “Character Completion Theory” And Confirms Sherlock Holmes Is In Public Domain

In a case of potentially great significance to copyright law and the entertainment industry, the Seventh Circuit has issued its long-awaited decision (authored by Justice Richard Posner) in Klinger v. Conan Doyle Estate, Ltd. The decision can be found here: 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

The issue in Klinger was whether the characters of Sherlock Holmes and Dr. Watson continue to be protected by copyright even though 50 of the 60 works by Sir Arthur Conan Doyle that feature the characters are now too old to qualify for copyright protection in the United States. The case began when the Conan Doyle Estate threatened to prevent the distribution of a proposed anthology of new Holmes stories by contemporary writers unless it received a license fee for the proposed uses of elements from the writings of Sir Arthur Conan Doyle.

The plaintiff asked the court to find that the 50 Holmes novels and stories published in the United States before 1923 (the current copyright cut-off date in the United States) now are in the public domain and no longer protected by copyright so that anyone could use any elements of those old stories, including the characters of Holmes and Watson, for any purpose in any new artistic works without having to ask anyone’s permission or pay a license fee to anyone.

The Conan Doyle Estate defended by raising a copyright theory known as the “character completion theory,” which says that characters who are developed over a series of stories, some of which still are protected by copyright, may remain protected by copyright even though some of the stories in the series may have passed into the public domain.

In the Klinger case, the Conan Doyle Estate relied on the fact that 10 Holmes stories published by Sir Arthur Conan Doyle still were protected by copyright, and argued that the Holmes and Watson were “unified works of art” because Conan Doyle used the last 10 stories (published as “The Casebook of Sherlock Holmes”) to further the development of the Holmes and Watson characters and such characters were based in part on the creative development in the final 10 stories. In fact, Conan Doyle did discuss events from the youth of Holmes and Watson in the 10 stories still protected by copyright so the Estate’s argument had some basis in the stories themselves.

Unfortunately for the Estate, the Seventh Circuit rejected its “character completion theory” argument. Emphasizing that the Estate’s argument would mean that the Holmes and Watson characters would receive an unprecedented 135 years of copyright protection, the Seventh Circuit held that “from the outset of the series . . . Holmes and Watson were distinctive characters and therefore copyrightable,” and the “additional features” which Conan Doyle added to their portrayals in later works only resulted in
“somewhat altered characters” which “were derivative works, the additional features of which that were added in the 10 late stories being protected by the copyrights on those stories.”

Going forward, it will be interesting to see how the opinion in Klinger is applied when characters such as those in series such as Star Wars, Star Trek, Harry Potter, The Hunger Games, Twilight, etc. first enter into the public domain.

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