Sherlock Holmes rescued from a dastardly foe: the copyright law

As we all get ready for the premiere later this month of Season 3 of the BBC’s superb “Sherlock” on PBS (I know I am), we should pause to give thanks to a Chicago federal judge who saved the world’s greatest fictional detective from the pitiless clutches of the Copyright Act.

In a ruling issued just before Christmas, Judge Ruben Castillo held that the characters of Sherlock Holmes and Dr. Watson, in almost all particulars, are part of the public domain.

You may have thought they were already, since they first appeared in print in 1887 and their creator, Arthur Conan Doyle, died more than 83 years ago. But the Conan Doyle estate disagreed. The estate, which represents nine indirect descendants of the author, claimed that the characters remain under copyright until the copyright expires on the last few stories in which they appeared. That won’t happen until 2022 or 2023. The estate’s goal was to block an anthology of freshly written stories featuring Holmes and Watson.

So that’s that, unless the estate follows through on its threat to appeal. But the case underscores how ridiculously our copyright laws have gotten out of control, and raises the issue of why we still protect the rights of authors -- or any other creative artists -- for more than a lifetime after they themselves have expired. Who really benefits from locking up creative rights for so long?

“It’s always been understood that copyright has to have an end, and the sooner the end, the better for the public,” says Lewis Hyde, a poet and essayist whose 2010 book “Common as Air” turned a critical eye on copyright. (We reviewed the book here.)

As Hyde observes, copyright terms have been getting longer and longer. Under the old 1909 copyright act, the U.S. term was 28 years from publication, with a renewal period (if requested) of another 28 years. The Copyright Act of 1976 lengthened the term to the author’s life plus 70 years.

But there are a host of exceptions and special rules, some of them leading to ludicrous results. For example, the poems of Emily Dickinson, who died in 1886, will remain under copyright -- owned by Harvard University Press -- until 2050.

Let’s stipulate that there are very sound reasons for copyright protection, as there are for patent protection (which lasts for a fraction as long). The idea is to balance the monopoly financial incentive and rights of a creator against the public interest in the free exchange of ideas.

Speaking as an author, I want the right to profit from my work for a good portion of my lifetime and pass some of the potential gains to my children or grandchildren. But I don’t expect those rights to last forever. And a copyright term of life plus 70 years is functionally the equivalent of forever, since only a tiny fraction of creative works throw off income for more than a few short years.

It’s not unusual for ownership rights to be in conflict with the public interest. Consider the case of Martin Luther King Jr.’s “I Have a Dream” speech, delivered on public grounds in Washington to a vast audience in 1963 -- and claimed as private property by the King estate, controlled largely by King’s son Dexter. The estate, as Hyde reported, trademarked “I Have a Dream” and successfully sued USA Today for publishing the speech without permission in 1993. Videos of the speech were forced off the Internet as infringements last year, its 50th anniversary.

The purpose of such lengthy protection lies at the heart of the Sherlock Holmes case. At issue is a lawsuit brought against the Conan Doyle estate by Leslie S. Klinger, a Westwood tax and estate lawyer who in real life is one of the nation’s foremost experts on Sherlock Holmes and co-editor of two anthologies of new and original stories featuring characters -- Holmes, Watson, and others -- appearing in the “canon,” the original 56 stories and four novels written by Conan Doyle. (He’s also been a consultant on the recent movies starring Robert Downey Jr. as Sherlock Holmes.)

A story in the second anthology used a character appearing in one of the 10 stories still under copyright. When the estate learned that, it threatened to block sales of the book at Amazon.com and Barnes & Noble unless the publisher obtained a license to use any of the characters, including Holmes and Watson.

Klinger sued to establish that the characters had long since passed into public ownership. The judge agreed that most of the “story elements” so familiar to readers, moviegoers, and television viewers are indeed public. These include Holmes’ and Watson’s appearance, their relationship, their quarters on Baker Street, Holmes’ conflict with the arch-criminal Professor Moriarty, and so on. A few tony unique elements seen only in the last 10 copyrighted stories are off-limits, but that’s all.

That brings us to the question of what exactly is being protected by a copyright today on characters created in the 19th century and indisputably part of our shared culture.

“The Conan Doyle estate is trying to protect its money,” Klinger told me. “They like to say this is about quality control, and they’ve kept some real crap off the market. But there’s so much crap out there that it’s a little late to be worrying about quality control.”

Klinger is right in pointing out that what’s really driving the lengthening of copyright duration isn’t quality control -- it’s the impulse to exploit commercial opportunities. Disney wants to squeeze profits from Mickey Mouse from now to the end of recorded time.

Conan Doyle himself probably cared a lot less about leaving riches to his grand-nephews than Warner Bros. does about protecting its franchise of “Sherlock Holmes” movies. We don’t know what Martin Luther King Jr. would have done with the rights to “I Have a Dream,” though the image of someone who would block its broad dissemination 50 years later except on payment of a license fee isn’t the image of King that’s been bequeathed us by history.

Klinger has dealt a blow to the narrow commercial interests of artists’ putative heirs, but the larger trend is playing out as a battle between corporate interests and the public interest. And we know who usually wins that battle.