Sherlock Holmes judge “out of touch”, Estate says

The war surrounding copyright protection for fictional detective Sherlock Holmes has taken another twist after the heirs to his creator accused a senior judge who ruled against them of being “out of touch”.

Benjamin Alison, lead counsel for the Conan Doyle Estate, told WIPR an opinion released on Monday (August 4) by judge Richard Posner at the US Court of Appeals for the Seventh Circuit, showed he was out of touch with copyright.

Judge Posner accused the Estate of “extortion” for demanding a license fee from Leslie Klinger, an author who had attempted to publish a book based on Sherlock Holmes, even though the character was in the public domain.

Posner ordered the Estate to pay Klinger more than $30,000 in damages and said it was operating a “disreputable business” for demanding licensing fees despite two courts ruling copyright protection for the British detective had expired.

“Judge Posner has now compared a copyright license to ‘extortion,’ showing how out of touch he is with copyright,” Allison told WIPR today.

“While Posner insists that that the Estate's licensing of Klinger's first book was part of an ‘unlawful business strategy,’ even Klinger admits that without a license his first book would have infringed the Estate’s copyrights.

“Posner continues to refuse even to acknowledge the Estate’s argument, which is that until Klinger is required to bring his new book before the court for his declaratory judgment, no one knows if the book infringes the Estate’s copyrights”.

The long-running case, originally heard last year at the US District Court for the Northern District of Illinois, began after Klinger attempted to publish an anthology called In the Company of Sherlock Holmes, but was thwarted by the Estate.

Publishing house Pegasus, which represents Klinger, was contacted by the Estate to sign a licensing agreement but refused and said it wanted a court to determine whether it could portray the character.

US copyright law states that works published before 1923 are in the public domain, meaning characters in them could theoretically be represented in later works.

The majority of Doyle’s work is already in the public domain. However, 10 of his short stories, published after 1923, continue to have copyright protection.

The Estate said copyright for the remaining ten stories was not due to expire until 2022 and that they contained significant character developments from earlier works, meaning any representation of Holmes would infringe the entire collection.

The district court, and later the seventh circuit both rejected the claims.

Earlier this month, the US Supreme Court refused to suspend the seventh circuit’s judgment following a plea from the Estate.

The Estate is nevertheless planning a full appeal against the decision at the Supreme Court.

Allison added: “the seventh circuit has now split from all other courts on that issue due to Posner’s insistence on using this case to further his views. Whether those views comport with the law of copyright will be for the Supreme Court to decide”.