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| Two attempts to murder Sherlock Holmes, the left much more freely usable historically than the right |
Sir Arthur Ignatius Conan Doyle wrote and published Sherlock Holmes stories from 1887 to 1927, a span of forty years. That broad period has some unusual implications for the copyright of the stories and the character of Sherlock Holmes. This blog article intends to answer the question how did Sherlock Holmes enter the public domain and at what times did he do so?
The most important starting point when determining the length of copyright is the date of publication of a work and the date of the author's death. Sherlock Holmes was introduced to the world with the publication of A Study in Scarlet in 1887 and Conan Doyle exited it in 1930. This article cannot cover the copyright history of the series in every country, it will focus on its history in the country of its origin, the United Kingdom, and the country where it has had the greatest success, the United States. I will begin with the copyright law of the United Kingdom, as it is far more straightforward than that of the United States in this application.
Copyright Terms in the United Kingdom
In the United Kingdom, when the Sherlock Holmes series began (1887) the copyright term was defined by the Copyright Act of 1842, 5 & 6 Vict. c. 45, which gave a term of life of the author plus seven years or forty-two years after the year of the first publication, whichever was longer. The Copyright Act of 1911, 1 & 2 Geo. 5. c. 46, gave a single term of life of the author plus fifty years. The term was increased to seventy years by the Duration of Copyright and Related Rights Regulations, 1995 No. 3297, to bring the United Kingdom's period of protection into line with that of the European Union's Council Directive 93/98/EEC of 29 October 1993 which harmonized the term of protection of copyright and certain related rights across the member states of the European Union. This created a curious situation where the works of Conan Doyle which were in the public domain from 1981-1995 were restored to copyright from 1996-2000.
Copyright Terms in the United States
In the United States when the Sherlock Holmes series began the copyright term was given in the Copyright Act of 1831, 4 Stat. 436, of 28 years with an option to renew for an additional 14 years. The copyright renewal term was increased to 28 years by the Copyright Act of 1909, 35 Stat. 1075. No further increase to the copyright term was established until the Copyright Act of 1976, 90 Stat. 2541. The 1976 Act increased the term to 75 years for a work made for hire (100 years for anonymous or unpublished works) or life of the author plus 50 years. In addition, works still under the protection of the initial 28-year term were permitted a 47-year renewal term for a period of 75 years. The renewal had to be actively pursued by the copyright holder for works copyrighted prior to 1964, works copyrighted in that year or thereafter had their renewals made automatic by the Copyright Renewal Act of 1992. The Sonny Bono Copyright Term Extension Act of 1998, 112 Stat. 2827, added another 20 years to the 75 year and life of the author plus 50 year terms.
At first it would appear that, assuming all U.S. copyright formalities had been complied with (copyright notice, deposit, publication and manual renewal) Sherlock Holmes stories would start entering the public domain from 1944-45 onwards (1887-88 + 56 years, protection extends to the end of the year regardless of month and day of original publication) Such works enter the public domain after the 56th year following their publication. By 1973 all the stories other than the 12 contained in The Case-Book of Sherlock Holmes would be in the public domain in the United States.
For the Case-Book stories, published from 1921-1927, their terms were extended by the 1976 Act. One might view that their extension was not lengthy, as Conan Doyle died in 1930 and thus his remaining published work should have entered the public domain in 1981 (life of the author plus 50 years). This is not the understanding and the alternate term of 75 years has been applied to them. Conan Doyle appears to have been commissioned by various magazines, such as The Strand and Collier's, to write Sherlock Holmes stories which would be published alongside other authors as a collective work in their periodicals. This would meet the definition of a work made for hire as stated in the 1976 Act, 17 USC § 101. The concept of works made for hire and their separate term of protection did not exist until the 1976 Act, so works which fell into the public domain prior to 1978 (the effective date of the 1976 Act) would not be saved by the 1976 Act by transforming them into works for hire. 90 Stat. 2541, § 103.
There may be some irony in that a short story first published in a magazine will likely receive a longer period of protection than if the author published a collection of such stories in book form. Serialized publishing is no longer popular
The copyright term on works published on or after 1923 was extended to 95 years in the 1998 Act, which allowed the two Sherlock Holmes stories published in 1921 and 1922 ("The Adventure of the Mazarin Stone" and "The Problem of Thor Bridge") to have entered the public domain prior to 1998. The public domain would have to wait until 2019 before the remaining stories began falling into it (1923 + 95 years). 2023 was the first year that the whole Sherlock Holmes canon was within the public domain.
It should be noted that even though copyright in the works of Conan Doyle were restored in the United Kingdom from 1996-2000, they would not have copyright protection restored under the Uruguay Round Agreements Act of 1994, 108 Stat. 4809. The URAA restores copyright in works which originally were in the public domain in the United States for failure to comply with copyright formalities, it does not extend the protection period to whatever is given by the originating country. The work is given the protection afforded if it were published in the United States as of the year of its original publication. So in Conan Doyle's case, the pre-Case Book stories would not have been eligible for protection even if the Conan Doyle Estate filed for a restored protection under the URAA.
A Piece of Him - Effects of the Gradual Entry of Sherlock Holmes into the Public Domain
When Sherlock Holmes stories began entering the public domain, other authors began to write stories and other works involving the characters without paying a licensing fee to the entity which held the remaining copyrights to Conan Doyle's works, the Conan Doyle Estate Ltd. The Estate, although acknowledging the early stories had fallen into the public domain, claimed that it had the right to bar the usage of Sherlock Holmes and Dr. Watson on the theory that the characters were complex and not fully formed until the last stories were published and thus they was protectable until the last story entered the public domain.
The Estate should have been aware that its legal position was relatively weak after the decision in Silverman v. CBS Inc., 870 F.2d 40 (2d Cir.1989). Silverman held that "Amos and Andy's" radio scripts which had not been renewed were in the public domain and material from those scripts, including the characters, were freely usable by the public. Silverman was controlling law only within the Second Circuit (New York, Vermont, Connecticut), so the Conan Doyle Estate asked for relatively modest licensing fees and was able to obtain them as other companies realized that litigating the issue would be far more costly, even if they prevailed. Leslie Klinger did not believe he needed a license to publish an anthology of Sherlock Holmes stories written by other authors. When the Estate threatened his publisher, who refused to publish his book unless Klinger paid for a license, Klinger sued the Estate seeking a declaratory judgment that the Estate had no copyright claims that could suppress his book.
The Seventh Circuit in Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496 (7th Cir. 2014) held that existing stories in the Sherlock Holmes canon, including character, plots, traits and language which were in the public domain were free for anyone to use. They rejected the Estate's theory of evolving complexity, finding that the theory, if taken to the extreme, would grant the Estate a far longer term of copyright than the law provided and suggested a possibility of a nearly-perpetual copyright. The court recognized that the new elements established in the ten Case-Book stories, however, were off-limits until the story which established them entered the public domain. Klinger was later awarded his attorneys fees against the Estate because the copyright law allows attorneys fees to a prevailing party in a dispute. Klinger v. Conan Doyle Estate, Ltd., 761 F.3d 789 (7th Cir. 2014)
As a result of the decision in Klinger, for a long time anyone could write a story in which Dr. Watson's first wife (Mary Morstan) appears as a character because she was introduced in "The Sign of Four", first published in 1890. An author could not safely write a story without permission of the Estate in which a second or subsequent (unnamed) wife of Dr. Watson was a character or referred to until "The Adventure of the Blanched Soldier" entered the public domain in 2022. Similarly one might get away with using the depiction of Mickey Mouse as shown in Steamboat Willie, but do not even consider using a version that looks like the one in The Sorcerer's Apprentice until 2036.
Australia and Canada also had a life plus fifty years rule for copyright expiration like the U.K. but did not retroactively extend copyright to seventy years to works which had already entered the public domain. In those countries Sherlock Holmes was completely in the public domain by 1981. The text of stories restricted elsewhere in the world could be freely read through sites like Project Gutenberg Australia or Canada once the Internet had become accessible to the public and the stories were transcribed and uploaded. While these sites could have been blocked as was the case with certain German authors in Germany where their works were still protected, this never seems to have occurred in the United States at least as to sites like Project Gutenberg which try to respect copyright law.
Unpublished Works of Conan Doyle
In the United States, all works published by Conan Doyle should enter the public domain in 2026. As of 2024 only his works published in 1929 and 1930 may be still protected by copyright. However, it should be noted that certain writings of Conan Doyle were not published during his lifetime. An argument could be made that those lost any copyright protection in 1981, 50 years after Conan Doyle's death. However, this is not correct because the 1976 Act stated that the copyright term was life plus 50 years, and Conan Doyle had not been dead for 50 years when the 1976 Act came into force in 1978. So according to § 303, copyrights in his unpublished work would not expire until 2003 and, if a work was published prior to 2003, then it would not enter the public domain until at least 2048 (originally 2028 but with the 20 years added by the 1998 Act).
Conan Doyle's unpublished works published after his death in the United Kingdom are treated to several periods of protection. Under the Copyright Act of 1956, 4 & 5 Eliz. 2. c. 74, and the Copyright, Designs and Patents Act of 1988, 1988 c. 48, copyright will expire in unpublished works 50 years after their first publication or by 2040, whichever is earlier. Neither the 1995 Regulation nor does any other amendment to the 1988 Act appear to have extended this time period to 70 years unlike other terms of protection given in the 1988 Act.
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