All but the final 10 of Arthur Conan Doyle’s Sherlock Holmes stories were published in the U.S. before 1923 and are now in the public domain, but this has not stopped his estate from trying to extract licensing fees from those who wish to create new tales or movies starring the pipe-smoking ur-detective. So, writer Leslie Klinger brought a declaratory judgment action in federal court to obtain the assurance his publisher needed that an anthology of new Holmes stories would be perfectly legal. Just before Christmas, the federal court for the Northern District of Illinois ruled in his favor. The judge explained that all pre-1923 elements of the Holmes character were unprotected, but any new character traits developed in the final 10 stories would still be protected by copyright. I don’t remember any new twists, but if the last installment of Conan Doyle’s work revealed that Holmes was really an elderly woman from Yorkshire, perhaps that bit of ground might be off-limits.
Several weeks ago, the Author’s Guild today filed an appeal of a fair use decision so sensible and important that even the publishing community has acquiesced to the district court’s analysis. Judge Chin’s November opinion found that Google’s scanning of copyrighted books was permissible so long as Google only made brief snippets of the books available to those searching the massive Google Books library. Not surprisingly, he found that making books findable and searchable in an online repository was likely to increase book sales, as long as entire books could not be downloaded for free by users. As an author who frequently invokes the fair use doctrine to justify my creative decisions, I find it difficult to understand why the Authors Guild has decided to challenge Judge Chin’s ruling. I certainly want consumers using Google books to find my novels! And as a copyright scholar, I can do nothing but praise the court’s careful analysis of the 4-factor fair use test. In third grade, we were all taught that copying is wrong, but as we mature, we come to understand that some copying is good . . . well, at least most of us . . .