Do you have a restless urge to write Sherlock Holmes mystery stories? If so, the U.S. District Court for the Eastern Division of the Northern District of Illinois has some good news for you: Holmes, Watson, and even Professor Moriarty are now in the public domain. In fact, all Arthur Conan Doyle detective stories published before 1923 are in the public domain. This means that you are now free to write, publish and sell Sherlock Holmes mystery stories without having to secure a license or permission from the Doyle estate.
The ruling was issued in a case commenced by Leslie S. Klinger to determine his rights to copy and make derivative works using certain elements in the series of Sherlock Holmes detective stories originally penned by Sir Arthur Conan Doyle. Klinger is the co-editor of In the Company of Sherlock Holmes, a collection of Sherlock Holmes stories written by various authors. According to the complaint, Pegasus Books had decided not to go forward with publishing the book after it received a letter from the Doyle estate advising that it would seek to prevent the book from being sold by retailers unless it received a monetary payment. Klinger filed a complaint requesting a declaratory judgment that the Sherlock Holmes characters are in the public domain. Chief Judge Ruben Castillo ruled in his favor, and granted the request. <<http://freesherlock.files.wordpress.com/2013/12/klinger-order-on-motion-for-summary-judgment-c.pdf>>
The ruling is subject to two important caveats. First, it only applies to Sherlock Holmes stories that are in the public domain. Although all of Doyle’s Sherlock Holmes stories are already in the public domain in Britain, not all of them are in the public domain in the U.S. In the U.S., only those stories that were published before 1923 are in the public domain. Any new information about Holmes, Watson, or any of the other characters in the detective series, remains protected by copyright, to the extent it was first disclosed in a story published after 1923. For example, the detail that Watson had a second wife is still protected by copyright. An American writer aspiring to be “the next Arthur Conan Doyle,” therefore, should take care to ensure that any dialogue, character and sequence elements he wishes to copy were either published before 1923, or entered the public domain since then.
Determining when a literary work that received copyright protection at some time in the past has entered the public domain is not always easy. Different rules apply depending on when and how the work was created (there are special rules about joint authorship, works for hire, and works written anonymously or under a pseudonym), and also depending on whether and when the work has been published or registered. In general (and assuming full compliance with all relevant copyright notice requirements), the copyright term for an uncommissioned work authored by one non-anonymous person was 28 years, renewable for a second term of 28 years, if the work was published or registered before January 1, 1978. Congress extended the length of the second term to 47 years for all copyrights that were still in existence on January 1, 1978. On October 27, 1998, Congress extended the second term to 67 years, for those copyrights that were still in existence at that time. Applying these rules, any such works published before 1923 are now in the public domain. And since Doyle’s last Sherlock Holmes mystery was published in March, 1927, they all will have entered the public domain by 2023.
The second caveat is that a character or other element of a literary work may be protected under other law even if it has entered the public domain for purposes of copyright law. For example, an author who ghostwrites Sherlock Holmes stories and tries to pass them off to the public as having been written by Mr. Doyle himself faces potential liability under state and federal trademark, fraud and unfair competition laws. And even an author who publishes Sherlock Holmes stories under his own name might be liable for trademark dilution if the famous Sherlock Holmes character is determined to be a trademark and if the author’s writing diminishes its value to the trademark owner.
Of course, you can avoid these risks altogether by simply creating your own characters, dialogue and plot sequences. Who knows? You may even come up with an idea for a story, or a series of stories, with so much lasting literary merit that someday you will be the author whose works other people are clamoring to copy.