January 2014: News Release re Appeal

To download a PDF of the following, click here.

The Conan Doyle Estate, Ltd. has filed a Notice of Appeal in the U.S. District Court that ruled in favor of Leslie S. Klinger in a declaratory relief action on the copyright status of the Sherlock Holmes Canon.

Chief Judge Rubén Castillo ruled that all copyright-protected elements of the Canon that were first introduced in stories published in the United States prior to 1923 are now in the public domain, and “Klinger and the public may use the Pre-1923 Story Elements without seeking a license.”  Indeed, the Court found that “[t]he evidence presented to the Court as to this first proposition is ‘so one-sided’ that Klinger must prevail as a matter of law.”

By filing a Notice of Appeal, the Conan Doyle Estate is entitled to present its legal arguments to the Seventh Circuit Court of Appeals in a formal brief.  However, the deadline for filing the brief is March 3, 2014, and no appellate brief has yet been filed. For that reason, Klinger and his counsel do not yet know what arguments will be raised on appeal by the Estate if, in fact, the Estate proceeds with the appeal.  If the CDE pursues its appeal, Klinger will file an appellate brief in response, and the matter will be argued and decided in the Seventh Circuit Court of Appeals.

In the meantime, the Order of the District Court remains in full force and effect unless the CDE seeks a stay of enforcement.  In that case, Klinger will oppose any request for a stay of enforcement of the Order pending appeal and will seek a bond if the Order is stayed.

Klinger is also preparing a motion to be filed in U.S. District Court to require the Estate to pay the fees and costs he incurred in bringing the declaratory relief action in District Court.  He will also ask the Court of Appeals to require the Estate to post a bond as security against his costs in litigating the appeal.

“Although the Estate has issued some self-serving press releases, we do not really know what they regard as reversible error in the decision of Judge Castillo,” says Klinger.  “They can’t be encouraged by the Court’s observation that their legal theory is ‘novel,’ a word that is often used in legal circles to indicate that an argument is imaginative but unsupportable in the law.”

“We are confident that the decision of Judge Castillo is fully supported by the facts and the applicable law, and we expect the Order to be upheld on appeal,” says Klinger.  “We will continue to carry the burden of litigating the public-domain status of the pre-1923 stories, not only for the benefit of my own books but for all creators who wish to draw on the public-domain elements of the Canon in their own work.”

 

January 2014: Appeal

Conan Doyle Estate Appeals Sherlock Holmes Copyright Decision

By Benjamin Allison
Counsel for the Conan Doyle Estate Ltd.

Santa Fe, N.M. (January 21, 2014) — The Conan Doyle Estate Ltd., owned and run by the family of writer Sir Arthur Conan Doyle, has appealed to the Seventh Circuit Court of Appeals from a lower court decision in Klinger v Conan Doyle Estate Ltd.  The lower court decision held that Sherlock Holmes and Dr. Watson may not be protected by copyright even though ten original stories by Conan Doyle developing the Holmes and Watson characters remain under copyright. The lower court did rule that using character developments from these ten stories requires the Estate’s permission, but stated it was not addressing the copyright status of Holmes’s character.

The lower court decision would fracture Conan Doyle’s characters into protected and unprotected parts.  The Conan Doyle Estate believes that Holmes and Watson should be protected as the fully delineated characters their author created.  The Holmes and Watson characters were not completed by Conan Doyle until 1927, and Congress has provided a copyright term of 95 years for such characters. The Estate will ask the Seventh Circuit to protect Conan Doyle’s literary characters for the full term Congress provided.

This important decision is likely to affect copyright protection for many other longstanding series characters. The case is particularly significant because Holmes and Watson are two of the world’s most loved and recognized characters, thanks to the creative genius of Conan Doyle’s writing.  The Doyle family intends to continue to foster creative new uses of the characters by others, as recent television and motion picture series, novels, and other programs demonstrate.

Richard Doyle, a director of Conan Doyle Estate Ltd, commented, “Sherlock has been depicted in various and wonderful ways with the Estate’s consent and support. We want to make sure that future generations can admire and enjoy Sherlock and Watson as much as past generations have.”

Benjamin Allison, an attorney with Sutin, Thayer & Browne, serves as lead counsel for the Conan Doyle Estate Ltd.

Sutin, Thayer & Browne is one of the oldest and largest law firms in New Mexico, offering exceptional legal services since 1946.  sutinfirm.com

To download the Estate’s filings, click here and here.

December 2013: Ruling

On Monday, December 23, 2013, the United States District Court for the Northern District of Illinois ruled on the plaintiff’s motion for summary judgment against the Conan Doyle Estate in a case involving the literary figures of Sherlock Holmes and Doctor Watson. The Court’s ruling states, in brief, that creators are free to use the characters of Holmes and Watson without licensing them from the Conan Doyle Estate. The Court cautioned that new stories about the pair can’t use elements that appear exclusively in the ten post-1922 stories by Conan Doyle (those that remain in copyright). However, elements from the fifty pre-1923 stories are in the public domain.

The ruling is a victory for the plaintiff Leslie S. Klinger, who sought to establish that the Estate was wrong in claiming that no new stories could be written about Holmes or Watson without the Estate’s permission. “Sherlock Holmes belongs to the world,” Klinger said. “This ruling clearly establishes that. Whether it’s a reimagining in modern dress (like the BBC’s Sherlock or CBS-TV’s Elementary), vigorous interpretations like the Warner Bros. fine Sherlock Holmes films, or new stories by countless authors inspired by the characters, people want to celebrate Holmes and Watson. Now they can do so without fear of suppression by Conan Doyle’s heirs.”

“For many years, U.S. motion picture studios, television networks and publishers have accepted without challenge the insupportable position of the Conan Doyle Estate that a paid license was required to create new works based on the pre-1923 Sherlock Holmes stories,” said Jonathan Kirsch, a member of Klinger’s legal team, who was represented in court by Scott Gilbert of Polcinelli, Inc. “We believe that Les Klinger is the first and only creator who refused to pay for a license that he did not need and challenged the position of the Conan Doyle Estate in court. Thanks to his courage, commitment and vision, the ruling of the District Court represents a clear legal victory, not only for Les and his co-editor, Laurie R. King, but for every creator who seeks to draw on the Canon to create new works.”

Asked to comment about the Court’s limitation regarding the post-1923 stories, Klinger said, “We never disputed that. If an author wants to write about a character that appears only in one of those stories, the Estate’s permission is required. We cherish the remaining 10 stories, and we respect the Estate’s right to control them.”

Looking ahead, Klinger and King plan to complete In the Company of Sherlock Holmes, the subject of the case, a collection of stories inspired by the Sherlock Holmes Canon written by major cross-genre authors, to be published by Pegasus Books in 2014. The pair previously edited the acclaimed A Study in Sherlock, a similar collection published by Random House and Poisoned Pen Press in 2012.

Download the full text of the court’s ruling by clicking here, and read more on the New York Times blog.

September 2013

On September 10, 2013, the ACD Estate filed opposition to our Motion for Summary Judgment, along with declarations from the Estate’s witnesses Jon Lellenberg, George Fletcher, Larry Woiwode, Valerie Sayers, and Loren Estleman. We have until September 30 to respond, and upon filing with the Court, we will post our response on this website. Thereafter, it will be up to the Court to determine the outcome.

Woiwode declaration
Sayers declaration
Lellenberg declaration
Fletcher declaration
Estleman declaration
ACD Response
ACD Statement of Add’l Material Facts

Update: August 2013

Mr. Klinger’s Motion for Summary Judgment was up for hearing today before the Court. The Estate again failed to appear, and has not moved to vacate the default order previously entered against it.  The Court provided the Estate with 21 days to file a Response to the Motion.  If a Response is filed, Mr. Klinger will have 14 days thereafter to file a Reply.  Ultimately, the Court will issue a written opinion on the motion, regardless of whether the Estate files a Response.

Update: July 2013

Following the entry of a default order against the Defendant, Conan Doyle Estate, Ltd., Leslie Klinger has filed a Motion for Summary Judgment asking that the Court enter a judgement against the Estate. Although the Estate accepted service in this matter, it never filed a responsive pleading. As a result, Klinger’s motion asserts, there are no material issues of fact in dispute and it is entitled to judgment as a matter of law. The motion has been noticed for hearing before the Court on August 6, 2013.

Documents are available for download in PDF format by clicking on the links below:

File Stamped Memorandum of Law in Support of Motion for Summary Judgment

File Stamped Motion for Summary Judgment

File Stamped Notice of Motion for Summary Judgment

File Stamped Rule 56 Statement 

Update: June 2013

The Arthur Conan Doyle Estate has failed to file a formal appearance or any other responsive pleading in the matter within the time granted to it. We are considering our next actions in the case and will keep you posted!

Free Sherlock!

Sherlock Holmes - The Man with the Twisted Lip
A civil action was filed today in the United States District Court for the Northern District of Illinois against the Arthur Conan Doyle Estate by Sherlock Holmes scholar Leslie S. Klinger. Klinger seeks to have the Court determine that the characters of Sherlock Holmes and Dr. John H. Watson are no longer protected by federal copyright laws and that writers, filmmakers, and others are free to create new stories about Holmes, Watson, and others of their circle without paying license fees to the current owners of the remaining copyrights.

Klinger says that the litigation came about because he and Laurie R. King, best-selling author of the “Mary Russell” series of mysteries that also feature Sherlock Holmes, were co-editing a new book called “In the Company of Sherlock Holmes.”  This collection of stories by major mystery/sci-fi/fantasy authors inspired by the Holmes tales, is to be published by Pegasus Books. “The Conan Doyle Estate contacted our publisher,” says Klinger, “and implied that if the Estate wasn’t paid a license fee, they’d convince the major distributors not to sell the book. Our publisher was, understandably, concerned, and told us that the book couldn’t come out unless this was resolved.

“It is true that some of Conan Doyle’s stories about Holmes are still protected by the U.S. copyright laws. However, the vast majority of the stories that Conan Doyle wrote are not. The characters of Holmes, Watson, and others are fully established in those fifty ‘public-domain’ stories. Under U.S. law, this should mean that anyone is free to create new stories about Holmes and Watson.

“This isn’t the first time the Estate has put pressure on creators,” Klinger adds. “It is the first time anyone has stood up to them. In the past, many simply couldn’t afford to fight or to wait for approval, and have given in and paid off the Estate for ‘permission.’ I’m asking the Court to put a permanent stop to this kind of bullying. Holmes and Watson belong to the world, not to some distant relatives of Arthur Conan Doyle.”

Klinger denies that he was trying to strip the Estate of its proper rights. “The Estate still owns copyrights in the U.S. on 10 of the stories about Holmes—some of the stories that appeared in The Case-Book of Sherlock Holmes. As a lawyer myself, I respect those rights, and in fact I licensed them when I published my New Annotated Sherlock Holmes.”

All of the remaining 10 stories will be in the public domain after 2022, 95 years after the last was published.

Klinger is represented by Scott M. Gilbert of Hinshaw & Culbertson LLC in Chicago, who serves as litigation counsel, and Jonathan Kirsch in Los Angeles, an intellectual property attorney specializing in publishing issues.

“Les Klinger is the ideal plaintiff to undertake this praiseworthy effort to confirm the public-domain status of the iconic characters and settings of the Sherlock Holmes Canon and remove the cloud of fear, uncertainty and doubt that the Estate has used to scare off others,” says Kirsch.  “As a world-renowned expert and an acclaimed author, he is willing to champion a cause that others have been too timid to undertake.  Authors, movie-makers and other creative people owe him a debt of gratitude.”

Klinger and Laurie R. King previously edited A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon (Random House, 2011), a collection of new stories written by Lee Child, Neil Gaiman, Margaret Maron, and other contemporary writers. Their second collection, In the Company of Sherlock Holmes, will feature new stories by Sara Paretsky, Michael Connelly, Lev Grossman, Larry Niven, Val McDermid, Denise Mina, Cornelia Funke, Jeffery Deaver, and other major writers. Some of the stories are new adventures of Holmes and Watson; others are about people inspired or influenced by the Holmes stories of Conan Doyle.

To download this information as a PDF, click here.