Who Owns Sherlock Holmes?

     CHICAGO (CN) - A Sherlock Holmes expert claims in court that Arthur Conan Doyle's estate has no copyright on the character of Holmes, Dr. Watson or the world of Baker Street, as the key elements of that fictional world, and 46 of the 56 Sherlock Holmes stories, are in the public domain.
     Leslie Klinger sued Conan Doyle Estate Ltd., a U.K. company, in Federal Court.
     "The books and stories by Sir Arthur Conan Doyle ('Conan Doyle') that present the fictional adventures of Sherlock Holmes are not only world famous but long ago achieved the status of iconic artifacts of Western popular culture," the complaint states. "Sherlock Holmes uses astute logical reasoning, his ability to adopt almost any disguise, and his skills in forensic science to solve difficult cases as he pursues criminals throughout Victorian and Edwardian London, the south of England, and continental Europe."
     Klinger, of Malibu, California, claims to be "the author and editor of twenty-seven (27) books and dozens of articles on various topics relating to the mystery and thriller genres in literature, including two dozen books and numerous articles on the subject of the so-called Canon of Sherlock Holmes, a phrase that refers to the four (4) novels and fifty-six (56) stories by Sir Arthur Conan Doyle featuring the fictional character of Sherlock Holmes and other related characters and story elements (collectively, 'the Canon'). By way of example, Klinger is the author of, among other works, the definitive three-volume annotated collection of canonical Sherlock Holmes books and stories titled 'The New Annotated Sherlock Holmes,' which was published by W. W. Norton in 2004 and 2005, and which won the Edgar Award for Best Critical/Biographical Work. Klinger is widely recognized as one of the world's leading authorities on the Canon and served as the technical adviser for Warner Bros. two recent Sherlock Holmes films and has consulted with many other authors on a number of scripts, books, and comics. Klinger is also an attorney admitted to the practice of law in California and specializes in tax, estate and corporate matters."
     Klinger co-edited "A Study in Sherlock," (Random House/Poisoned Pen Press, 2011) a short-story collection by contemporary authors, based on the Holmes Canon.
     He and his co-editor, Laurie King, are preparing a sequel to the "Study in Sherlock," to be called "In the Company of Sherlock Holmes," to be published by Pegasus Books and distributed by W.W. Norton.
     But the Conan Doyle Estate derailed it, claiming that Holmes, his companion Watson and the world of Baker Street are protected by copyright.
     Though there have been "conflicting claims of ownership" of various Conan Doyle rights, "For the purpose of this complaint, plaintiff does not deny that defendant is the sole owner of the Conan Doyle Rights to the extent that any such rights are valid and existing," Klinger says.
     However, "Pursuant to the copyright law of the United Kingdom and Canada, the Canon in its entirety, and all of the Sherlock Holmes story elements, entered the public domain in the United Kingdom and Canada, and in other countries not at issue in this complaint, fifty (50) years after the death of Conan Doyle, that is, in 1980."
     In 1981, Conan Doyle's last surviving child, Dame Jean Conan Doyle, re-registered the copyright to "The Case-Book of Sherlock Holmes" in the United States. The book contains 12 stories, which were first published from 1921 to 1927.
     "However," Klinger says in the complaint, "none of the Sherlock Holmes Story Elements first appeared in 'The Case-Book of Sherlock Holmes' or in the stories that comprise the collection, and none of the Sherlock Holmes Story Elements are protected by any copyright that may still apply to The Case-Book of Sherlock Holmes or its constituent stories under U.S. law."
     Klinger claims that two of the 12 stories in the collection were published in the United States before 1923, and so are in the public domain. The other 10, he says, will enter the public domain "in various years leading up to 2023." But he says none of the "Sherlock Holmes Story Elements" first appeared in those 10 stories. He is not seeking judgment on any story elements that originally appeared in any of those 10 stories.
     He claims that the Conan Doyle Estate is wrongfully asserting copyright claims about the Sherlock Holmes Story Elements that have entered the public domain.
     The complaint states: "Klinger and King are currently preparing for publication the sequel to 'A Study in Sherlock' under the working title 'In the Company of Sherlock Holmes,' which will also consist of new and original stories by prominent contemporary authors who draw selectively on the Sherlock Holmes story elements that have already passed into the public domain. Accordingly, no permission or consent of any kind by defendant was or is required for the use of the Sherlock Holmes story elements in both 'A Study in Sherlock' and 'In the Company of Sherlock Holmes,' because all of the Sherlock Holmes story elements are now in the public domain in the United States due to the final expiration of the copyrights in and to the Sherlock Holmes story elements under U.S. law."
     Random House voluntarily entered into a licensing agreement with the Conan Doyle Estate before publishing "A Study in Sherlock." Klinger claims that it did so "without conceding the legal or factual merits of the position asserted by defendant through defendant's agent, and for avoidance of litigation only."
     Klinger claims that Pegasus Books refused to sign such a licensing agreement, "pointing out that 'In the Company of Sherlock Holmes' would include only such characters and other story elements from the Canon that have already passed into the public domain and would not use any characters or other story elements that first appeared in one of the ten (10) stories that remain under copyright in the United States."
     Pegasus said it could not afford the licensing terms that Random House paid, according to the complaint.
     Whereupon, on Dec. 11, 2012, "Defendant's agent threatened to wrongfully interfere with the publication of 'In the Company of Sherlock Holmes,' which was then identified by the working title 'Study in Sherlock II,' as follows: 'If you proceed instead to bring out 'Study in Sherlock II' unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well,'" the complaint states.
     That very day, Klinger claims, "Pegasus Books informed defendant's agent that '[w]e are advised that no license is necessary for the book we are preparing for publication, and we will not be responding to any further communications on this matter.' No further communications have been exchanged between defendant, on one side, and Klinger, King or Pegasus, on the other side, through the date of filing of this complaint."
     He adds: "As a result of the demands and threats of defendant and defendant's agent as alleged above, plaintiff has a reasonable apprehension that defendant will file suit against him, his co-editor, and their licensees in the United States if 'In the Company of Sherlock Holmes' is published.
     "Pegasus Books, as a direct and proximate result of the threats and demands of defendant, has declined to enter into the publishing agreement for publication of 'In the Company of Sherlock Holmes' so long as the threat of a copyright infringement action by defendant is present and has expressed its willingness to do so only if plaintiff is successful in adjudicating the public domain status of the Sherlock Holmes Story Elements."
     Klinger seeks declaratory judgment that "In the Company of Sherlock" does not infringe on the Conan Doyle Estate's copyrights, as the Story Elements of the fictional world, apart from elements peculiar to the 10 stories, are in the public domain.
     He is represented by Scott Gilbert with Hinshaw & Culbertson.