Leslie Klinger refuses to take his own legal advice. “I work in tax and estate law, and I always tell my clients, don’t file a lawsuit for personal reasons. They’re money pits. Even if you win, you’ll wind up spending a fortune,” he says.
But in addition to being a lawyer, Klinger is one of the preeminent Sherlock Holmes scholars; he writes books and scholarly articles on the hyperobservant London detective, including the three-volume Norton anthology of the entire Sherlock Holmes canon, published as the New Annotated Sherlock Holmes in 2004 and 2005. So when Klinger decided to sue the Sir Arthur Conan Doyle literary estate over what he believes to be a wrongful assertion of copyright, he knew it wasn’t going to win him any money. This time, Klinger is fighting for what he loves best: a literary figure famous for not loving anybody at all.
In the U.S., the Conan Doyle estate owns the copyright to the last 10 stories that Doyle published in the U.S. between 1923 and 1927. They’re some of Doyle’s later work and do not include Doyle’s most famous Holmes mysteries, such as A Scandal In Bohemia or The Hound of the Baskervilles. “They’re not the most popular stories,” says Klinger. “You might not even remember them, if you’ve read them at all.”
Doyle’s other Sherlock Holmes stories were written earlier and have since entered the public domain. But the estate says that because it retains the copyright to some stories (set to expire in 2023), anyone who wants to write a book, film a movie, or make a thrilling TV series starring Benedict Cumberbatch has to obtain a license for the use of Sherlock Holmes, Watson, James Moriarty, or any other Doyle character. (In Britain and Canada, the Sherlock Holmes stories are all in the public domain.)
This became an issue when Klinger and his co-author Laurie King started working on In The Company of Sherlock, a collection of short stories written by contemporary authors that are inspired by or derived from the Sherlock Holmes mysteries. “One of the authors intended to write a story about a character in Doyle’s story The Illustrious Client. That’s one of 10 stories still under copyright, so I told that author, ‘Look, you’ll have to get a license from the estate,’” explains Klinger. In a series of e-mails, the Conan Doyle estate requested licenses for the whole book, not just the one story. Klinger refused. “Then they told us that if we don’t get a license, they’d get Barnes & Noble (BKS), Amazon (AMZN), and other places to refuse to carry our book,” he says. Publication is now on hold, and Klinger is suing for the right to move forward with his collection. The Conan Doyle estate could not be reached for comment.
To back up his claim, Klinger has submitted to the court a list of Sherlock Holmes’s most famous attributes—including smoking, drug use, deduction methods, knowledge of chemistry—and the stories in which they first appear, none of which are copyrighted. That’s what happens when you’re sued by the man who once annotated an entire three-volume anthology of Sherlock Holmes stories—he provides an exhaustive list of evidence.
Warner Brothers (TWX), the BBC, and CBS (CBS) have all reportedly paid licensing fees for their Sherlock-related movies and programs because it’s easier than arguing in court. A few years ago, Random House paid to license another contemporary collection of stories by Klinger and King against the authors’ advice. “We told them no way, don’t give them a nickel. Random House basically told us, ‘it cost more to engage our lawyers to pay the $5,000 license fee.’” This time, Klinger’s new publisher, Pegasus Books, is standing by the author’s refusal. “Les essentially decided to draw a line in the sand and say, ‘I am not going to pay a licensing fee for characters in story material that’s in public domain,’” says Jonathan Kirsch, a publishing lawyer who’s representing Klinger.
Should Klinger prevail, anyone will be able to use the Sherlock Holmes character in the U.S. without fear of retribution (assuming, of course, that the user doesn’t infringe upon the 10 still copyrighted stories). “The folks who are going to benefit from this the most are the ones making big Sherlock Holmes productions,” says Klinger. “Nobody cares about a short story anthology that, if it does really well, will still sell only 4,000 to 5,000 copies.” Maybe not. But plenty of people care about Sherlock Holmes.