United States: Sherlock Holmes And The Case Of The Split Copyright Personality

Between Benedict Cumberbatch's sly smile on the BBC's "Sherlock" and Johnny Lee Miller's haunted recovering drug addict on CBS' "Elementary," there's no shortage of possible Sherlock Holmes' in modern culture. (Add in Robert Downey Jr.'s bare-knuckled brawler and you have a full trio of modern incarnations.)

But while small character quirks separate these performances, all three share a new distinction recently handed out by a federal court in Chicago: They are the latest dramatizations of a character, Sherlock Holmes, who has now been declared copyright-free.

The case at issue, Klinger v. Conan Doyle Estate, looked closely at the fictitious Victorian detective first introduced in "A Study in Scarlet" in 1887. It was a case about, more or less, "Who owns Sherlock?"

In the eyes of the law, Sherlock Holmes resides not so much on Baker Street as in in two different copyright worlds. Four of the novels and 46 of the short stories in which he appeared are currently in the public domain in the United States. But 10 short stories (published in 1923 or thereafter) are still under copyright protection.

So what does that make Sherlock? Is he a copyright-free character, available for others to use in their own stories? Or is he a copyright-covered character, who cannot be used without the copyright owner's permission — and a fee?

Questions like these often arise, but in the risk-adverse publishing industry, they rarely get answered in court. Indeed, a few years ago, when author Leslie Klinger co-edited an anthology of new and original Sherlock Holmes stories, believing that the Sherlock character was free for anyone to use, Klinger's publisher took the easy way out, entering into a licensing agreement with the Conan Doyle Estate. Licenses are cheaper than litigation, so many licenses are purchased even when it's not clear that they are legally required.

As Klinger prepared a new anthology, he notified the Conan Doyle Estate of his intent to publish without a license. The estate responded by threatening that it would pressure bookstores to refuse to sell the book. Klinger then went to court, arguing that because the great bulk of the Sherlock Holmes works (respectfully called "the Canon" in the court opinion) were in the public domain, so was the Sherlock Holmes character.

The Conan Dolye Estate (presumably, Sir Arthur's great-great-grandchildren) disputed that claim. It asserted, essentially, that Sherlock Holmes was a developing character, still unfinished after the first 50 works. For that reason, he was unavailable for free use by others until all of the works enter the public domain.

Central to the Klinger case was Silverman v. CBS Inc., a copyright case from 1989 that centered on characters from the "Amos 'n' Andy" program for TV and radio. That decision held that the characters of Amos and Andy were sufficiently established in radio scripts that had entered the public domain. So Amos and Andy had entered the public domain, too.

The Conan Doyle estate argued that Silverman should only apply to what they described as two-dimensional "flat" characters like Amos and Andy — not complex three-dimensional characters like Holmes and Watson.

In response, Chief Judge Rubén Castillo applied the Amos 'n Andy case and other precedents, and found that Holmes and Watson, at least as they existed in the 50 public domain stories, "are free for public use." Essentially, the court held that if the stories were in the public domain, so were the characters in those stories. "It is a bedrock principle of copyright that 'once work enters the public domain it cannot be appropriated as private (intellectual) property' and even the most creative of legal theories cannot trump this tenet."

To the estate's objection that one cannot divide the great detective into public domain and copyrighted versions, the court said it could, and indeed was compelled , to do just that. "Characters and story elements first articulated in public domain works are free for public use, while the further delineation of the characters and story elements in protected works retain their protected status."

Judge Castillo did not, but could have, noted that copyright law often dices, slices, and imposes intellectual divisions of all kinds. Copyright law demands that courts and lawyers think separately of physical works (books, artworks) and the intangible copyrights that pertain to them; that they sort out protectable (creative) and unprotectable (factual, non-creative) elements of all works; and that they analyze creative works, ranging from books to software programs, according to multiple layers of abstraction (for example, from a general storyline to detailed expressive elements).

In the intellectual world of copyright, the court's division of Sherlock, into a pre-1923 public domain character and a subsequent protected character, was unsurprising.

Indeed, the court suggested this dividing up of the character was consistent with the constitutional purpose of promoting the development of the arts. The court noted that keeping the character under copyright protection until the last story leaves the public domain would "extend impermissibly the copyright of certain characters elements of Holmes and Watson beyond their statutory period, contrary to the goals of the Copyright Act."

The court did find in favor of the estate on one issue, affirming that modern writers like Klinger have no right to use elements of the Sherlock Holmes character that first appeared in stories that are still under copyright protection. (In winning this point, however, the estate beneficiaries didn't exactly make their great-great-grandfather proud — the court ruled that the incremental new elements of the Sherlock character in the later stories would remain protected in part because copyright law imposed a "low threshold of originality.")

"My mind," Sherlock Holmes once said, "rebels at stagnation. Give me problems, give me work, give me the most abstruse cryptogram or the most intricate analysis, and I am in my own proper atmosphere. ... I abhor the dull routine of existence. I crave for mental exaltation."

Sherlock Holmes would have loved U.S. copyright law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Smith Gambrell & Russell LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Smith Gambrell & Russell LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions