Basil_Rathbone_as_Sherlock_Holmes_(profile)

Basil Rathbone as Sherlock Holmes. The iconic deestalker cap was not part of Sherlock Holmes canon until Rathbone wore one.

If you wait long enough, the seminal works that provide the framework of popular culture fall into the public domain.  So it was this week, with the 7th District U.S. Appeals Court ruling last Monday that fifty works published before 1923 by Arthur Conan Doyle being released to the public domain.   Others may refer to them freely without paying licensing fees to the Scottish writer’s estate. U.S. copyright law no longer covers earlier works depicting the brilliant detective, including references to Holmes, his sidekick Dr. Watson, his arch-enemy Professor Moriarty, 221B Baker Street, and even Holmes’ cocaine use.  Writing for a three-judge panel, Circuit Judge Richard Posner said there was no basis to extend U.S. copyrights beyond their expiration.

Posner said that only Conan Doyle’s last 10 Holmes works, which were published between 1923 and 1927 and have copyrights expiring after 95 years, deserved protection. Conan Doyle died in 1930.  “When a story falls into the public domain, story elements – including characters covered by the expired copyright – become fair game for follow-on authors,” Posner wrote.  “To rule for the estate”, he said, “would encourage authors to write more stories with old characters. The effect would be to discourage creativity.”

The decision was a victory for Leslie Klinger, editor of “The New Annotated Sherlock Holmes” and other Holmes books.  Klinger had paid the estate a $5,000 (2,945 pounds) licensing fee for a prior work but sued after refusing to pay another fee for a compendium of new Holmes stories that he and co-editor Laurie King were editing, “In the Company of Sherlock Holmes.”   Their publisher got a cease and desist order from the Doyle estate when that happened, so Klinger turned the tables on them and won in December of 2013.  The Appeals Court was the Doyle estate’s last hope, but the day went to Leslie Klinger instead.

“I am very, very pleased,” Klinger said in an interview. “The urge to publish more comes from the love for the first 60 stories, and people should be encouraged to create more.” He said he hoped to publish the compendium in November.  Benjamin Allison, a lawyer for the Conan Doyle estate, said no decision has been made on an appeal and that it remained to be seen how Klinger and others can use the author’s characters without using the “full expression” of those characters.  The last ten Holmes novels introduce story elements such as Watson’s second wife, Holme’s retirement from his own detective agency, and the growing friendship of the two men, though a diversification of the story arc that deviates from the original set forth by Doyle may do more to help rather than harm the franchise.

Jonathan Kirsch, a lawyer for Klinger, said he was gratified by the decision. “Copyright begins and ends, and cannot be extended indefinitely,” he said in an interview.

(Reporting by Jonathan Stempel in New York for Reuter’s)

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