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Seventh Circuit says Sherlock Holmes is still copyright-free

Mark Sableman June 24, 2014

A district court decision declaring that the character of Sherlock Holmes is copyright-free was affirmed by the U.S. Court of Appeals for the Seventh Circuit in a unanimous decision written by Circuit Judge Richard Posner. The court fully agreed with the district court’s conclusion that the Doyle estate had no basis for protecting the entire Sherlock Holmes character just because a few of Doyle’s later stories were still under copyright.

My previous post on the district court’s decision: Sherlock Holmes and the case of the split copyright personality

Not surprising, given that Judge Posner is the author the classic “Law and Literature,” now in its third edition, the decision includes interesting comparisons to other literary works. Like the district court, the appeals court rejected the Doyle estate’s claim that “complex” characters deserved broader copyright protection, and the estate’s switch in terminology – to “rounded” and “flat” characters, instead of “complex” and “flat” – did not change the court’s mind. Indeed, the “round” character image may have focused Judge Posner on the famous fictional character of Falstaff, whom Shakespeare dealt with out of chronological order in multiple plays. Judge Posner noted that as to both Holmes and Falstaff, arguably more round characters are found in later works depicting a younger person. But “we don’t see how that can justify extending the expired copyright on the flatter character.”

Apart from the interesting subject matter and analogies, Judge Posner’s decision contributes to the ongoing policy discussion about the benefits and detriments of copyright protection. The decision includes a strong warning that extending copyright protection as requested by the Doyle estate would be a “two-edged sword,” because it would reduce the incentive of subsequent authors to create derivative works, increase the costs of new authorship, and incentivize successful authors to extend old characters rather than create stories with entirely new characters.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Google+ and Twitter, and reach him at (314) 552-6103 or msableman@thompsoncoburn.com.