Great News: Now Anyone Can Write and Publish a Sherlock Holmes Story

By Noah Berlatsky
BBC; Wikimedia; CBS

At last, the great detective Sherlock Holmes has broken free of the clutches of his captors.

Last month, a Chicago judge ruled that Holmes, a fictional character created in the late 19th century by the British author Sir Arthur Conan Doyle, is in fact out of copyright—meaning that the exclusive copyrights once held by the publishers of the original Sherlock Holmes stories no longer apply. Unless the decision is overturned on appeal, new Holmes adaptations should be just about as legally unregulated as adaptations of Shakespeare or folk tales. Given the success of adaptations like Elementary and BBC’s Sherlock, that means we're likely to see a whole lot more Holmes content in the not-too-distant future. And since a strong public domain benefits art, that's a boon both for Holmes-lovers and for everyone else.

You could be forgiven for thinking that Sherlock Holmes was out of copyright already. The original novel, A Study in Scarlet, was published in 1887—more than 125 years ago. Even in the U.S., where copyright has been extended and extended and extended again, protection usually applies only 95 years from the date of publication, meaning Holmes and Watson should be well out of it.

In fact, that was the argument in court of Leslie Klinger, a Holmes scholar and enthusiast who intends to publish a book of original Holmes stories by various authors titled In the Company of Sherlock Holmes in the fall. However, the Doyle Estate argued that copyright protection should extend from the last collection of stories, The Case-Book of Sherlock Holmes, published in 1927—which would mean that the character could not be used without permission until 2022. According to them, Holmes continued to evolve, becoming more mellow and closer friends with Watson. To write stories just using the earliest Holmes material is a crime against Holmes and art in general, according to Doyle estate attorney William Zieske. Or, as he put it, "to reduce true literary characters to a cardboard cutout, parts of which can be carved off, I think does literature a great disservice."

Zieske's objection is framed in terms of this particular court case; he's arguing that you can't use Doyle's early stories unless you use all of Doyle's stories. But the argument, if taken to its logical conclusion, actually seems to dismiss the value of any and all adaptations of a work. If it "does literature a great disservice" to carve off bits of it, then how does that not apply to, say, the film version of 12 Years a Slave, which is (inevitably) quite selective in its use of its (public domain) source material? If any literary dicing is bad, then it seems like copyright should be extended as much as possible in order to prevent as many adaptations as possible, carefully preserving the original literary vision from depredations.

There's certainly an appeal to this line of thinking. Bad adaptations can be ugly and depressing. I certainly wish that Brian Azzarello had never gotten his clammy oven mitts on Wonder Woman, and that DC Comics hadn't decided to make a mess of Alan Moore and Dave Gibbons's Watchmen. If you love a work of art, it's painful to see it get mishandled and proverbially spit on for profit.

But if you love a work of art, it may also inspire you. Such inspiration can take lots of different forms. If you're Arthur Conan Doyle, for example, you might retool Edgar Allan Poe's Dupin stories to make up your own detective and name him Sherlock Holmes—a process of carving off and rejiggering which you'd think even the Doyle estate would approve of.  

Sometimes inspiration can be even more direct, as when creators carve off entire characters from another work and make them their own. This sort of direct lift can make people bristle. Where's the creativity, they ask, in writing up yet another Sherlock Holmes story? Why not be original and make something of your own? (For examples of this line of argument, just scroll down through the comments in this National Post story about the legal battle over Sherlock Holmes.)

But a quick look at how creators in the past have used pre-existing characters makes it clear why it can be valuable. Tom Stoppard, for instance, took two minor characters from Hamlet and put them at the center of his play Rosencrantz and Guildenstern Are Dead in order to contrast major tragedies with minor ones, and think about the way even stories in the margins can matter. Similarly, in Longbourn, Jo Baker retold Pride and Prejudice from the perspective of the Bennet family servants in order to think about the way that class erases some people's stories. Numerous fan-fiction stories take characters like (ahem) Holmes and Watson and put them in homosexual relationships, revealing and reveling in erotic tensions denied or buried in the original work. Along the same lines, Alan Moore and Melinda Gebbie's Lost Girls turned Wendy of Peter Pan, Dorothy of the Wizard of Oz, and Alice of Alice in Wonderland into rutting bisexual fantasies in a pornographic fever dream. Rick Riordan's massively popular Percy Jackson series makes extensive use of Greek mythology, including appearances by Hera, Zeus, Poseidon, and numerous other figures who, of course, are carved off from their original context. Much of the fun of Riordan's book is seeing how old stories have been modernized. And, of course, using the Greek gods is a way to teach a young audience about myths.

So carving off characters can be a way to comment on the original work—to expand on its themes, to examine what it erased, to update it, to teach folks about it, or just to enjoy it (and surely enjoyment is an important goal of lots of literature, not excluding the Sherlock Holmes stories). Interacting with literature and appreciating literature means, in no small part, talking back to literature. And a big way in which people talk back to literature is by dissecting it, reassembling it, and making it their own.

Again, that deconstruction can sometimes be ugly. Not every use of Sherlock Holmes is going to be pretty, or make the Doyle Estate happy. No doubt there's X-rated Sherlock/Watson slash fiction out there that would make Conan Doyle rise from his grave, if he could manage it. But to say that it's a crime against literature to reuse Sherlock Holmes is like saying that Doyle committed a crime against literature by turning Dupin into Holmes. Artists and writers always engage with and respond to other writers. That's how art gets made. And that's why it's a good thing for culture, for literature, and for Doyle himself that it looks like Holmes will finally be completely free to be used, abused, and celebrated by everybody, free of charge.

This article available online at:

http://www.theatlantic.com/entertainment/archive/2014/01/great-news-now-anyone-can-write-and-publish-a-sherlock-holmes-story/282897/