Attorney appeals to US Supreme Court in Sherlock Holmes case


John Bursch. Courtesy Warner Norcross & Judd

An attorney is asking the nation’s highest court to hear an intellectual property case involving the famous Sherlock Holmes character.

Still "subject to copyright"

Warner Norcross & Judd in Grand Rapids said last week that John Bursch, a partner and co-chair of the firm's Appellate and Supreme Court practice, is leading a team of attorneys representing the estate of author Arthur Conan Doyle in the case Conan Doyle Estate Ltd. v. Klinger.

In the filing with the U.S. Supreme Court, the estate claims Conan Doyle’s last 10 Sherlock Holmes stories are not part of the public domain and author Leslie Klinger’s plans to publish a collection of new Sherlock Holmes stories without permission or paying royalties to the estate could violate copyright law.

Prior to 1978, a copyright was effective for 95 years following publication, which is why most, but not all, of Conan Doyle’s Sherlock Holmes mysteries are in the public domain.

“In our case, the first four Sherlock Homes novels and the first 46 short stories are all in the public domain, but the last 10 stories are all still subject to copyright,” Bursch said.

The last 10 stories were published in 1927 and are under copyright protection until 2022.

Lower-court ruling

The Seventh Circuit Court of Appeals heard the case and ruled Klinger could proceed with his plans to publish the new collection of stories, without permission or royalty payments to Conan Doyle’s estate, because the character is in the public domain.

Bursch said the ruling is contrary to rulings made by other circuit courts in similar cases and creates a rift in intellectual property law.

“Ordinarily, when you have a dispute about something like that — whether it's copyright, trademark or patent — the person who is creating the new work has to come forward and show the court what they are proposing to sell,” Bursch said. “The court can look at it and compare it to the previous work, and if there are overlapping elements, determine which, if any, of those are protected by intellectual property laws. The Seventh Circuit never made Mr. Klinger come forward with the book.”

Possible infringements

Bursch said there's no telling if Klinger’s book has infringed on copyright-protected material included in any of the last 10 Sherlock Holmes stories.

“Anything that was new to the last 10 stories would be protected by copyright,” Bursch said. “For example, in the last 10 stories, it was revealed that Sherlock Holmes had a much warmer, more emotional relationship with Dr. Watson, and it was revealed that Sherlock Holmes liked dogs. Things that rounded out the character and made it more complete.”

Bursch said those are elements that make Sherlock Holmes the character we know today.

“To the extent the new collection of stories uses any of those elements would be a problem,” he said.

Bursch said the Seventh Circuit’s decision could have an impact beyond Sherlock Holmes, affecting many other beloved characters created prior to 1978, including characters in Winnie the Pooh, the Cat in the Hat, DC Comics, Marvel and the James Bond stories.

“There are so many applications of this legal ruling to different characters that are out there, and now anyone who wants to use one of those characters is going to run to the Seventh Circuit to file their lawsuit, rather than doing it anywhere else to try to get the benefit of this ruling,” he said.

Bursch is hopeful the Supreme Court will agree to hear the case and said the chances are good, since the Seventh Circuit Court’s ruling differs from rulings by the other circuit courts.

Copyright Act

The Copyright Act of 1976, which went into effect in 1978, changed the copyright law, so instead of being based on the date of publication, copyrights for characters are now based on the date of the author’s death and extend for 70 years after that date. The Copyright Act of 1976 applies to characters published from 1978 forward. 

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