The Great Game and the copyright villain

Betsy Rosenblatt

Whittier Law School, Costa Mesa, California, United States

[0.1] Abstract—This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946–47 and 2013–15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir Arthur Conan Doyle and casting them as greedy and morally bankrupt. Throughout each era, Sherlockians did not shy away from creating transformative works based on the Holmes canon over the objections of putative rights holders. This complicates the usual expectation that copyright assertions against fans are likely to chill fan production. The essay explores possible reasons why Sherlockian fandom might differ from other fandoms in this respect, including the role of the Great Game form of Sherlockian fandom in shaping fan attitudes toward their subject.

[0.2] Keywords—Copyright law; Grand Game; History; Intellectual property law; Law and society; Sherlock Holmes

Rosenblatt, Betsy. 2017. "The Great Game and the Copyright Villain." In "Sherlock Holmes Fandom, Sherlockiana, and the Great Game," edited by Betsy Rosenblatt and Roberta Pearson, special issue, Transformative Works and Cultures, no. 23.

1. Introduction

[1.1] Sir Arthur Conan Doyle famously relinquished narrative control of Sherlock when William Gillette was writing a licensed stage adaptation of Conan Doyle's Holmes stories. Gillette cabled Conan Doyle to ask whether his version could include a plot in which the notoriously unromantic Holmes got married. "You may marry him, murder him or do what you like with him," Conan Doyle cabled back (note 1). For generations since, commercial and noncommercial adapters have engaged in narrative transformation of Holmes, from Gillette's relatively faithful stage adaptation to commercial blockbusters like Warner Brothers' Sherlock Holmes films and the BBC's Sherlock series to boldly transformative fan creations like Tuna!Lock (note 2). But relinquishing narrative control is a far cry from relinquishing legal control, and legal control of Holmes has been bitterly disputed in and out of US courts since the days of Conan Doyle himself (note 3). In a few instances, this legal wrangling has taken direct aim at fans or fan works, but even when it hasn't, Holmes fans have actively engaged with questions of intellectual property ownership (note 4).

[1.2] Some legal scholars, including myself, have suggested that legal uncertainty regarding the ownership of source texts and the legality of transformative creation is likely to chill fan activity, particularly generative fan activity such as the creation of fan works (note 5). This article seeks to complicate that assertion by highlighting fan reactions to legal challenge in two eras of Sherlock Holmes fan history: 1945–47 and 2013–15 (note 6). In each of these instances, Holmes fans have become active participants in the intellectual property debate, have treated legal challengers as villains, and have persisted in creation of fan works even over the (implied or explicit) objection of rights holders. This stands in contrast to the dominant discourse regarding the relationship between fandom and intellectual property law, namely that fans and fan work hosts have refrained from creating or hosting fan works based on certain works out of fear of legal reprisals or respect for copyright holders' opposition to fan work creation (note 7).

[1.3] This essay does not propose that Sherlock Holmes fans are unique in their resistance or opposition to copyright claims. Certainly, fans in many fandoms create despite source-authors' expressed objections to fan works. There are hundreds of fan works in the Archive of Our Own based on Anne Rice's work, for example, although perhaps fewer than one might expect considering her works' popularity (note 8). Likewise, although it is no doubt true that some fans refrain from creating out of fear of litigation—or at least refrain from sharing their fan works outside trusted circles—others take a more rebellious approach. In 1997, Barbie fans created a Pink Tidal Wave of protest when Mattel took legal action against Barbie fanzines (note 9). More recently, the creators of the Star Trek fan film Axanar have persisted in the face of litigation (Whitley 2016). Nevertheless, Sherlock Holmes fans have been conspicuously vehement in their opposition to copyright claims and therefore may provide insight into circumstances in which copyright claims are less likely to chill fan activity than common wisdom might suggest (note 10). This essay therefore provides a case study that may shed light on reasons why some fans may be more prone than others to resist copyright or quasi-copyright claims.

2. The years 1945–1947

[2.1] In the 1930s, one group of American Sherlock Holmes enthusiasts coalesced as a literary society, calling itself the Baker Street Irregulars (BSI). A thorough discussion of the BSI is beyond the scope of this essay, but the BSI have been credited with originating or popularizing some elements of modern media fandom, and their practice of creating "writings on the writings"—essays and pastiches that now would be described as fan works—was an early example of organized generative fandom and transformative work creation (note 11). The BSI of the time did not (and, as the group persists today, many still do not) describe themselves as fans, although the BSI and its activities were and are in most ways indistinguishable from other examples of media fandom.

[2.2] The BSI and their writings reveled in the Great Game (sometimes called the Grand Game), a self-aware fiction that proceeded from the premise that Holmes and Watson were real, that Watson wrote the canonical stories, and that Arthur Conan Doyle was merely Watson's literary agent (Polasek 2012, 43). As Edgar W. Smith, one of the BSI's early leaders, described it in a letter to the author (and later BSI member) Rex Stout,

[2.3] We are a very heterodox group in the B.S.I., some of us, like Christopher Morley and Alexander Woollcott, possessing certain literary pretensions, and others being engaged prosaically in mere affairs of commerce. There is only one common trait we possess, perhaps, and that is a grim determination to deny to the whole world that any such fellow as Conan Doyle ever existed: the Sacred Writings were, of course, the product, in all but four instances, of the pen of John H. Watson, M.D., late of Her Majesty's Indian Army. (note 12)

[2.4] Stout responded, tongue planted firmly in cheek: "your mention of an object called Conan Doyle puzzles me; never heard of the chap" (Lellenberg 1991, 12).

[2.5] In 1946, the Baker Street Irregulars began regular publication of the Baker Street Journal (BSJ) which might later have been described as a very sophisticated fanzine. The BSJ included commentary from its editor Edgar W. Smith and essays by Sherlockians, generally engaged in the Great Game.

[2.6] Sir Arthur Conan Doyle's sons Adrian and Denis, who at that time owned the copyright in his works, had from the start asserted copyright objections to the BSJ. Smith, who had also corresponded with Adrian and Denis regarding the possibility of publishing a portable edition of Conan Doyle's works with a US publisher, clearly objected on a moral level to Adrian and Denis's assertions of control over the characters. He expressed this moral objection in the style of the Great Game in his editorial introduction to the July 1946 issue of the BSJ:

[2.7] Sherlock Holmes belongs to all the world. Like any other man who ever lived, the very fact of his existence has put him, in the best and broadest meaning of the term, securely in the public domain. And since he is, in consequence, the unalienable property of our minds and our affections, we feel a sense of wonderment and something else close to pity in the presence of those unperceiving souls who would check us in our urge to think and talk and write about him as we please. For think and talk and write we will: there is no such thing, in ethics or in morals, as a copyright on reality. (Smith 1946, 243–44)

[2.8] Smith continued with an oblique critique of the commercial adaptations that Adrian and Denis had authorized and explained that those who had licensed the character for what Smith saw as crass and inauthentic commercial adaptation would be held to account: "The plaintiff in the case, when it is brought, will naturally be Sherlock Holmes himself; the defendants will be that unenlightened coterie who seek his exploitation for their selfish ends [and] have knavishly betrayed him" (244).

[2.9] Shortly thereafter, Denis wrote to Smith stating that he would not authorize publication of the portable Conan Doyle edition in the United States "until we are assured that the matter of the Baker Street Journal, which has caused us great distress and indignation, has been settled satisfactorily"—namely, that the journal be "discontinued" (quoted in Lellenberg 1995, 289). In a lengthy response dated July 25, 1946, Smith explained that the BSJ was a labor of love undertaken at a great financial loss to its (fan) creators, but that it nonetheless likely helped drive sales of Conan Doyle's original works. Smith explained to Denis that the Great Game was, in Smith's view, the ultimate expression of admiration for Conan Doyle's work: "it is, I think, the finest tribute that any author ever had, in that it sublimates his creations to the resemblance of a living reality—which is something, as I have told you in our personal conversations that has never happened in the world before" (quoted in Lellenberg 1995, 291). Smith explained that if he had to choose between being paid to edit a portable edition of Conan Doyle and continuing to edit the BSJ at a financial loss, he would "continue to perform the labor of love involved in editing the Journal," and so he did (quoted in Lellenberg 1995, 291).

[2.10] A historian of the BSI, Jon Lellenberg, describes an "anecdote from this time" about the publisher of the BSJ receiving a threatening letter from Adrian and Denis's London lawyers, "a firm with the intimidating name of Churcher Son & Vertue," and the publisher, an avid Sherlockian and BSI member himself, "writing back suggesting that they contact his lawyers, Bagels & Lox" (1995, 287).

[2.11] Christopher Morley, founder of the BSI, also cast Adrian and Denis's challenges as villainous but did so obliquely enough that only a studied eye would notice. In the October 1946 issue of the BSJ, Morley wrote:

[2.12] I can't help noticing that some of the correspondence that has frowned upon the publication of the Journal as an invasion of proprietary prerogatives, or something or other, has emanated from Minstead (near Lyndhurst), Hants. Do you remember the Socman of Minstead, the villain and ruffian of The White Company, the wicked uncle? (1946, 408)

[2.13] With this, Morley clearly intended not only to compare Adrian (whose address for correspondence was Minstead, near Lyndhurst, Hants) (Lellenberg 1995, 284) to one of his father's literary villains but also to belittle Adrian's moral claim to copyright. Under the US law of the time, copyright fair use existed, although it was not enshrined in statute until 1976, and although Adrian could likely have made out a nonfrivolous claim for statutory copyright damages against the BSJ (note 13), the BSJ could have counterargued that its use of any copyrighted material was fair. But whether Adrian's claim sounded in law or not was less important to Morley than whether Adrian's claim was morally defensible. The moral attack on Adrian and Denis continued the following year: in the second volume of the BSJ, Smith quoted an excerpt from Conan Doyle's autobiography in which he praised a parodist, explaining that it was a pleasant "antidote for the barbs leveled at the Jᴏᴜʀɴᴀʟ for daring to foster the production of certain writings having to do more or less intimately with Sherlock Holmes, that all members of the Conan Doyle family did not feel about such things as some of them do today" (1947a, 62). In the following issue, Smith wrote of certain Holmes stories about to enter the copyright public domain:

[2.14] Thus is what the Impossible Scions [Adrian and Denis] have called their "diminishing asset" still further whittled away. The attitude of these Socmen of Minstead ("Double, double, Doyle and trouble!") toward the said asset is, as time goes on, becoming curiouser and curiouser. Not content with suppressing The Man Who Was Wanted, and aborting the Limited Editions Club's long-awaited five-volume omnibus, and putting every bother in the way of Viking's projected Portable Conan Doyle, and decrying the Jᴏᴜʀɴᴀʟ itself as a monstrous perpetration on their prerogatives or something, these myopic conservators have now mysteriously withdrawn from Doubleday the rights to the Case-Book—without which, for all that the Tales it contains are not of the first order of merit, the publication of The Complete Sherlock Holmes, as such, is clearly impossible. It must be true, as the biologists assert, that genius has a genius for skipping a generation. (1947b, 158)

[2.15] Smith and his colleagues eventually backed away from publishing a portable Conan Doyle edition containing anything other than works in the public domain, but Smith pursued a public-domain-focused edition, noting that he "would take a double joy in presenting the public with a volume brought out despite [Adrian & Denis's] recalcitrance" (quoted in Lellenberg 1995, 317–18). Nevertheless, it never seemed to occur to them that copyright law should—notwithstanding Adrian and Denis's manifest objections and even (possibly apocryphal) direct threats—be an impediment to continuing the BSJ, pastiche, or other writings on the writings. In fact, although it has not been published continuously since the 1940s, the BSJ continues to be published quarterly even today.

3. The years 2013–2015

[3.1] After a great many twists and turns of ownership, the few remaining slivers of US copyright in the Sherlock Holmes canon now appear to be owned by an entity known as the Conan Doyle Estate, Ltd. (CDE) (note 14). The CDE claims a combination of copyright and trademark rights in the character of Sherlock Holmes; in a legal document filed on July 3, 2014, it describes its business as "manag[ing] the fully developed [Sherlock Holmes] character's further promotion and development through licensing agreements" (Klinger v. CDE, 755 F.3rd 496 [7th Cir. 2014] No. 1:13-CV-14-1128). But many fans describe the CDE's business as extortion (Thomas 2014). The CDE has demanded licenses from several commercial fan enterprises as well as larger-scale commercial endeavors, even for projects that do not draw at all from the few remaining copyrighted stories (note 15). Rumors abound that the CDE has hassled the BSI and BSJ, although if they have done so, there is no public documentation of it. But they have made life difficult for fans: Amy Thomas, a member of the Baker Street Babes, a group of female Sherlockians who host a podcast and organize fan gatherings, described their business model thus on her blog in 2014: "the Estate had, for years, been extorting and attempting to extort money from authors.…(I have personal friends and acquaintances who were harassed, either personally or through their publishers, and there are myriads more, many of whom paid up just to avoid a legal fight.)" On September 4, 2015, when the CDE settled a pending lawsuit, @IHearOfSherlock, the Twitter handle of Baker Street Irregulars Scott Monty and Bert Wolder, tweeted: "Another successful extortion effort from the Conan Doyle Estate, Ltd."

[3.2] The newer fans' language is perhaps less measured (and certainly more concise) than that of early Sherlockians, but it carries the same fundamental sentiment: that, regardless of the legal merits (or lack thereof) of their claims, those asserting legal objections to fandom are morally wrong.

[3.3] Although the CDE had, as Amy Thomas noted, been asserting its ownership of copyrights in the Holmes canon since it purchased those rights, fans began to pay attention to the CDE when the CDE wrote a cease-and-desist letter to Leslie Klinger, a Sherlockian annotator and anthologist and a member of the Baker Street Irregulars. Klinger, with coeditor Laurie R. King, had published one anthology of Holmes canon-inspired stories by popular authors. Against Klinger's wishes, the publisher of that first anthology, Harper Collins, had responded to the CDE's assertion of rights by paying a licensing fee. When Klinger and King prepared to publish another, the CDE wrote a letter threatening that unless the new publisher, Pegasus Books, paid a licensing fee, the CDE would ensure that the book never saw distribution in major outlets such as Amazon. In response to this threat, Klinger sought a declaration that seemed self-evident to fans and copyright experts alike: that the contents of the Sherlock Holmes stories and novels first published in the United States before 1923, like all works first published in the United States before 1923, fall into the copyright public domain (note 16). The case captured the attention of the press and public, prompting articles in the New York Times, the Hollywood Reporter, the Economist, Smithsonian, Boing Boing, and many others (note 17).

[3.4] Fans got involved online, characterizing the CDE as bullies and worse. On February 14, 2013, @BakerStreetJournal (the official account of the Baker Street Journal) and @LyndsayFaye (Lyndsay Faye, mystery author and member of the Baker Street Babes and BSI) introduced the #FreeSherlock hashtag for discussion about the dispute, and for a time the hashtag trended on Twitter. On February 14, 2013, Baker Street Irregular @ScottMonty (Scott Monty) tweeted a quote from the Holmes story "The Adventure of Charles Augustus Milverton": "'Don't Imagine That You Can Bully Me' [CHAS] via #FreeSherlock." The next day, February 15, 2013, @pchop (Mark Wardecker) described Klinger's challenge to the CDE as "long overdue." On February 19, 2013, in response to a fellow fan's musing about what Conan Doyle would think of the lawsuit, @LyndsayFaye (Lyndsay Faye) opined that since the CDE "aren't direct heirs," he would think that fans should be able to "marry, murder, or do what you like with him." Even literary celebrities like Neil Gaiman and Stephen Fry voiced their support for Klinger's suit. On March 15, 2013, Gaiman (@neilhimself) tweeted "@lklinger is the man." On March 26, 2013, Fry (@stephenfry) tweeted, "The characters of Sherlock Holmes & Dr. Watson should belong to the world! Support the #FreeSherlock case!"

[3.5] After a year and a half of litigation, Klinger ultimately won the case. The Seventh Circuit Court of Appeals held that despite the CDE's argument to the contrary, the first 50 stories and novels, as well as the characters of Holmes and Watson as they existed in those stories, were in the public domain and free to use without permission from the CDE. The court described the CDE's argument to the contrary as "bordering on the quixotic" (Klinger v. CDE, 755 F.3rd 496 [7th Cir. 2014] No. 1:13-CV-14-1128). Nevertheless, the CDE still maintains that it owns both copyright and trademark rights in the character of Holmes. It has issued press releases claiming that it retains copyright in the "complete" character of Sherlock Holmes and making clear that "the [CDE]'s trademark rights in the SHERLOCK HOLMES name and image were not at issue in Mr. Klinger's lawsuit and remain unaffected" (Conan Doyle Estate 2014) (note 18).

[3.6] On May 22, 2015, the CDE proved that it was willing and able to pursue claims founded on those alleged rights by filing a lawsuit alleging copyright and trademark infringement by Mitch Cullin, the author of A Slight Trick of the Mind, and Miramax Films, the distributor of the film Mr. Holmes, based on Cullin's book. In response to news of the Cullin/Miramax suit, @BakerStBabes tweeted on May 22, 2015: "I'd like to kindly ask the Arthur Conan Doyle Estate to die in a fire. Seriously, what a corrupt bunch of money grabbers. #FreeSherlock." Many others shared their outrage. In a blog entry dated May 23, 2015, Scott Monty, a member of the Baker Street Irregulars who cohosts the I Hear of Sherlock Everywhere podcast and Web site, wrote that "the business entity that represents what is left of Conan Doyle's estate is doing irreparable damage to his reputation" and that "this kind of legal wrangling and greed represents a last gasp for relevance and income for individuals who aren't even direct descendants." Sherlockian Chris Redmond, tweeting as @DarkGreenDesk, observed on May 22, 2015, that it was "interesting, in fact, to see the comments that come from so many quarters with such unanimity. #estate #freesherlock #pickone."

[3.7] The CDE is not the only entity that has claimed to own rights in the characters of Holmes and Watson in recent years. One purported owner, a socialite named Andrea Plunket who claimed rights through a complicated chain of purchases and bequests but almost certainly owned no actual rights, litigated against commercial adapters of Sherlock Holmes a number of times (note 19). She lost each time, but that did not stop her from continuing to level threats. In 2013 and 2014, news outlets reported that Plunket planned to assert copyright and trademark claims against both the BBC (for Sherlock) and CBS (for Elementary), explaining: "I have the rights, that is clear…No one has asked permission to use my trademarks and I am confident that, if and when I go to court, I will be able to prevent the BBC making any more 'Sherlocks'" (World Trademark Blog 2014; Kay 2013). In December 2014, members of Plunket's extended family took over administration of her purported copyright holdings, which they call the Sir Arthur Conan Doyle Literary Estate. They persist in asserting that they own "the remaining US copyrights of Arthur Conan Doyle's stories" and that the CDE owns nothing ("History of the Sir Arthur Conan Doyle Copyrights" n.d.).

[3.8] Plunket and her administrators have thus far refrained from challenging noncommercial fan works—one may surmise that their interest is primarily pecuniary in nature—but have nonetheless been villainized in fan circles. On Twitter, fans responded to Plunket's 2013–14 rights assertions with disdain. The following tweets are typical of the online response. On January 12, 2014, @abij11 wrote: "Ms. Plunket, unimportant heiress with too much time on her hands, can piss off trying to stop further production of Sherlock." The same day, @adamlewisware wrote: "ANDREA PLUNKET WOULD YOU KINDLY DO WHAT SHERLOCK FAILED TO SUCCEED IN AND JUMP OFF THE TOP OF A BUILDING." Also on January 12, @teaxcupcake wrote: "who's this Andrea Plunket & why the heck some1 even listening to her? If #BBC will have2 close #Sherlock bc of her I'll personaly [sic] sue her ><." Or this Filipino tweet of January 15, 2014 from @kbdaenlle, whose sentiments are apparent even without translation: "Badtrip ako dun sa Andrea Plunket na yan. Shit sya, gold digger. Gusto lang nya pagkakitaan ang Sherlock Holmes!" A Twitter search for "plunket sherlock" yields scores of tweets along the same lines, as does Tumblr.

4. Villainizing as alternative to chilling

[4.1] Notwithstanding challenges from copyright claimants in each era, fan activity continues, publicly and apparently unabated. The snippets of protest above, the continued existence of the BSJ, and the many scores of fan works available on the Internet collectively indicate that a substantial number of Sherlock Holmes fans view creation of transformative fan works as their right and something for which they need neither permission nor approval from copyright owners.

[4.2] What accounts for the difference in behavior between the chilling effect that some have predicted and observed in other fandoms, on one hand, and the resistance and persistence of these Sherlock Holmes fans, on the other? The expiration of copyright may have played a significant role in modern fans' outrage regarding the CDE's and Plunket's challenges to Sherlockian adaptation—after all, the claimants base their claims on copyright that, for the most part, no longer exists. But while that certainly lends powerful legal backing to the fans' outrage, it cannot explain earlier Sherlockians' equally vehement resistance to Adrian and Denis, who did in fact own the copyrights they were asserting. Likewise, relatively recent educational and advocacy efforts by groups like the Organization for Transformative Works, which have educated fans to understand that the creation of noncommercial fan works is legal as a matter of US copyright law, may be a very significant factor in fueling rebellion among modern-day fans. Among fans and scholars of James Joyce, Joyce's grandson was long despised much as Sherlockians despised Adrian, Denis, the CDE, and Plunket, but Joyce fans rarely fought against him until recent developments in copyright fair use law and pro bono representation made such rebellion more appealing (Spoo 2009). However, considering Sherlockians' early open objections to Adrian and Denis, recent developments in legal advocacy cannot tell the whole story. So what might account for Sherlockians' opposition to copyright and quasi-copyright claims across eras? I suggest that a number of circumstances may combine to fuel their rebellion.

[4.3] To some extent, it may be chalked up to cultural happenstance. Although current-day generative fandom is sometimes associated with women and marginalized communities who may not have a sense of political efficacy or the financial wherewithal to stand up to threats, that was not the case for the organized Sherlockians of the 1940s. Edgar Smith, Christopher Morley, and their ilk were almost exclusively wealthy white men, captains of letters and industry, with ample personal and political resources. (Indeed, Presidents F. D. Roosevelt and Harry Truman were each members of the BSI during this era [Lellenberg 1995, 224–25].) They were not the sort to be cowed by threats. Their resistance set the tone for the many decades to come. Thus, by the time the CDE began challenging new fans and adapters in the 2010s, fans had the weight and momentum of nearly a century of transformative fandom pushing them along toward the same kind of indignant resistance of their forbears. This momentum joined with other emboldening forces like the education and advocacy efforts described above to fuel the ire of modern Sherlockians.

[4.4] Another significant difference is that the Sherlockians are resisting challenges from people other than the authors themselves. It is one thing for a fan to heed Anne Rice herself when she asks her fans not to create fan works and quite another to heed a third cousin once removed who purchased the rights rather than inheriting them. This is the story of the CDE: it is a collection of distant Conan Doyle relatives (and nonrelatives) who purchased the rights from the Royal National Institute of Blind People after Dame Jean Conan Doyle (the author's daughter) bequeathed them to the Royal National Institute upon her death in 1997. It is also the story of Andrea Plunket, who claims the rights by a complicated set of transfers from Denis's widow to a holding company called Baskerville Investments Ltd., to the Royal Bank of Scotland, to Plunket's ex-husband, Sheldon Reynolds (Rosenblatt 2015, 614–16; Conan Doyle Estate 2013).

[4.5] Adrian and Denis Conan Doyle may have been closer genetically to the revered author himself and their ownership the result of inheritance rather than purchase, but they were still subject to claims of inauthenticity. The narrative of illegitimacy and inauthenticity flows throughout the fans' condemnations in both eras. In both of the 1947 volumes of the BSJ quoted above, Smith reminded readers that Adrian and Denis held views different from their father's. In the recent CDE and Plunket instances, fans described the claimants as a "business entity" of "individuals who aren't even direct descendants" and an "unimportant heiress with too much time on her hands."

[4.6] Likewise, in both eras, fans condemned the claimants for what they perceived as money-driven greed, portraying them as placing financial interest over loyalty to source. In 1946, for example, Smith condemned Adrian and Denis for licensing crass pastiches (which generated royalties) but objecting to the BSJ (which did not), describing Adrian and Denis as having sought Holmes's "exploitation for their selfish ends [and having] knavishly betrayed him." Likewise, fans have condemned the CDE and Plunket for being "money grabbers" and a "gold digger." For many creators of noncommercial transformative works—as the early Sherlockians were, and as countless Holmes fans are today—the idea of financially capitalizing on the work of others is ethically suspect. For them, fandom is a labor of love, not something to make money on, and they expect the same moral purity from the author's heirs or assigns.

[4.7] The final piece of the puzzle, I contend, is the legacy of the Great Game. One reason that the copyright villain is so villainous for Sherlockians—and perhaps not as much for fans without an equivalent fictional frame for their fandom—is that it shatters the fiction of the Great Game, forcing fans into a world in which Conan Doyle was an author rather than a literary agent. The correspondence of the Sherlockians in the 1940s, including Smith's July 25, 1946 letter to Denis, clearly indicates that they saw the Great Game as an homage to Conan Doyle rather than an attempt to disrespect or erase the author. But it was an homage that by its nature gave Holmes a sort of autonomous life of his own, of which the Sherlockians believed themselves stewards. Assertions of ownership over Holmes therefore may have read to those early Sherlockians as metaphorical enslavement. By authorizing commercialized pastiches of what the Sherlockians believed to be inferior quality, Adrian and Denis did not treat the autonomous Holmes with the sense of stewardship and respect that the Sherlockians would have; instead, they exploited him for financial gain.

[4.8] The themes of greed and illegitimacy intertwine with a Great Game analog in the modern fans' outrage as well. Although the Great Game per se is not a dominant discourse among Holmes fans outside the BSI and associated societies, the modern fandom has found an analog contemporaneous to the vocal opposition to copyright claimants discussed above. It began after the end of the second series of the BBC program Sherlock in which Holmes had, in an echo of the canonical Holmes's tumble over the Reichenbach Falls, tumbled from the top of a building to his apparent (and, fans hoped, equally temporary) death. A Swedish fan of the show, Mika Hallor (then known as Earl Foolish) posted a call to arms on Tumblr, urging fans to announce in graffiti that they "Believe in Sherlock Holmes" (Foolish 2012). Before long, tags of "I Believe in Sherlock Holmes" and "Moriarty Was Real" appeared around the world; sites can be seen on this map:

[4.9] While the "I Believe in Sherlock/Moriarty Was Real" campaign may not have generated the same sort of historical-fictional mock scholarship as the Great Game, it may be read to reflect the same sort of sentiment among fans: that they considered Sherlock Holmes (in this case, the Holmes of the BBC series) to be worthy of independent celebration apart from his creators. They were, after all, not writing "I Believe in the Character Brought to Life by Steven Moffatt" (the show's creator) or the even more attenuated "I Believe in the Character Originated by Arthur Conan Doyle." In this sense, the newer fans, like Smith and Morley before them, implicitly expressed the view that it was the fans' responsibility to keep Holmes alive in the absence of fresh canonical material. And like the players of the Great Game before them, they may have experienced legal intrusion upon that fictional life support as an all-too-sharp reminder that Holmes was not, in fact, the real, autonomous being in whom they avidly pretended to believe.

[4.10] Given the fact that each of these fan communities built their identities around the conscious fiction of a character's realness, legal assertions of ownership and control present a greater contradiction of the community's self-definition than it would in other situations in which the fandom community defines itself by reference to something it expressly acknowledges as created by another. In many communities, it is common for fan fiction writers to open their works with a disclaimer explaining that they did not create the characters and that their work is intended as homage to the original creators (for a discussion of traditional fan work disclaimers, credit-giving, and copyright, see Tushnet 2007, 70). The disclaimer approach stands in stark contrast to these two manifestations of Holmes fandom, in which the homage—while surely intended—is sublimated to a surface fiction that the creator does not even exist. To these realness-based communities, legal challenge creates a moment of cognitive dissonance, reminding fans that their fiction is false and posing not only a threat to their fan activity but also to their fan identity.

5. Conclusion

[5.1] In both the 1940s and 2010s, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes. Although the fans' styles differed considerably, their themes overlapped: those seeking to use copyright law to silence fandom or assert copyright claims against new works featuring Sherlock Holmes were inauthentic, greedy, and morally bankrupt. Throughout each era, Sherlockians did not shy away from creating transformative works based on the Holmes canon over the objections of putative rights holders. This complicates the usual expectation that copyright assertions against fans are likely to chill fan production.

[5.2] I contend that several factors may account for this difference: the elevated socioeconomic and political status of early Sherlockians; the fact that every entity asserting intellectual property rights over Sherlock Holmes in these eras was an entity other than Sir Arthur Conan Doyle himself; and the legacy of Great Game-style fandom. Specifically, I suggest that because (some) Sherlockian communities actively adopt a form of fandom built around the conscious fiction of Sherlock Holmes's realness, legal assertions of ownership and control present a greater contradiction of the community's self-definition than it would in other situations in which the fandom community defines itself by reference to something it expressly acknowledges as created by another.

[5.3] From this example of one, it may be unwise to make sweeping generalizations regarding circumstances in which fans are likely to rebel against copyright or quasi-copyright claims rather than acceding to them or going underground. However, one may hypothesize that such rebellion is more likely in circumstances under which fans are particularly affluent or privileged in terms of race, gender, sexuality, or ability; can identify moral or ideological distance between the original creator and the copyright holder; can make claims to moral purity; or may treat the fictional objects of their fandom as real (note 20). But while such fans are more likely to rebel—to express their fandom openly in the face of objections from putative rights holders—there is little reason to think that fans in these circumstances are any more or less entitled to make transformative fan works than other fans, from a moral or legal standpoint. The fact that some fans are more likely than others to rebel may serve as further evidence that intellectual property laws that make fan creation risky or expensive are likely to have a disparate impact on fan creation, discouraging some but not others. The fact that the difference may be couched in socioeconomic or other privileges is particularly notable from a legal policy perspective and merits further study.

6. Notes

1. Deposition of Sir Arthur Conan Doyle, April 12, 1923, p. 7:2–3. The passage is taken from a deposition given by Conan Doyle under oath that is on file with the author.

2. Tuna!Lock stories posit an alternative universe in which Sherlock Holmes is an anthropomorphic tuna fish. Several Tuna!Lock stories can be found on the Archive of Our Own under the tag "Tuna Sherlock." See

3. Throughout this article, I describe intellectual property claims in predominantly copyright-focused terms, but it bears noting that since the beginning, disputes regarding intellectual property ownership of Sherlock Holmes have not been limited to copyright claims. Trademark and quasi-trademark claims have existed since the beginning, and recent challenges to Sherlock Holmes adaptation have increasingly involved trademark claims as well as or instead of copyright claims, in significant part as an attempt to make an end run around the expiration of copyright. For ease of discussion, however, I focus here predominantly on copyright and quasi-copyright challenges. For extensive discussion of US litigation concerning intellectual property rights in Sherlock Holmes, see generally Elizabeth L. Rosenblatt (2015).

4. In the interest of disclosure, the author has been personally involved in such engagement as Legal Chair of the Organization for Transformative Works, a lifelong Sherlock Holmes enthusiast, and a pro bono consultant on behalf of Leslie Klinger in litigation discussed in this article.

5. See, for example, Rosenblatt (2015); Schuster (2014); Fiesler (2008, 2013); Lipton (2010); and Rebecca Tushnet (2008) who notes that "If people have to pay $100 before writing 500 words about Harry Potter, they will make other plans" (514).

6. I pick these windows of time because they feature particularly active periods both of legal challenge to Sherlock Holmes-based works and of vocal fan opposition to legal claimants. Neither of these periods is unique in Sherlockian history, however; were one to look a few years earlier or later to each window, one would find similar attitudes, if sparser activity.

7. See, for example, Community Guidelines, in particular the statement that "FanFiction respects the expressed wishes of the following authors/publishers and will not archive entries based on their work," and the statement by elfwreck (2015) on Fandom First Friday, discussing a fan work creator's decision not to record filk songs based on works by Chelsea Quinn Yarbro.

8. Notably, at the time of this writing, there is only one work in the entire Archive of Our Own based on the works of Chelsea Quinn Yarbro.

9. It seems that Mattel's claims were principally founded on trademark, not on copyright, and most of the fan works that Mattel opposed were reviews rather than fiction or art, but the fan response is at least analogous to the Sherlockian responses described herein. See the discussion of a protest and attendant boycott by Denise Gellene (1997).

10. Nor do I intend to suggest that all members of a particular fandom will inevitably share the same reaction to copyright claims. On the contrary, as discussed in more detail later in the essay, intellectual property claims likely chill fan creativity differently for different fans, with a disproportionately chilling effect on fans who belong to disadvantaged populations. Rebecca Tushnet (2013) notes that "People who are most likely to create noncommercial remix are disproportionately women, disproportionately minorities of various kinds, and they already feel unwelcome in the larger system, and I can see this in my own practice. When a guy who makes a Stargate remix gets a takedown from YouTube, he writes me, even though we've never met. You know, he finds me, and he says I'm just going to counter-notice. This is fair use. Women, if they find me, then we call—I have a long conversation with them, we talk it over in great detail, and hopefully I convince them that they can counter-notify when they have a valid fair use defense, which by the way is often" (192–93). As discussed below, Sherlockian fandom's early culture of resistance may reflect the powerful socioeconomic status of those early resisters.

11. Natasha Simonova (2012) describes Sherlock Holmes fandom as among fan fiction's "origin stories"; Nancy Reagin and Anne Rubenstein (2011) describe readers' interactions with Conan Doyle's works as an early model for fandom and fandom's interaction with text; Francesca Coppa (2006) draws connections between early Sherlockians and later development of media fandom.

12. Jon Lellenberg (1991). I include the first sentence of the quotation here to note its irony, as the group was in fact quite homogeneous by modern standards, being comprised entirely of white men. It expressly excluded women until 1991 although some had qualified for membership upon its formation in 1934. Albert M. Rosenblatt and Julia Carlson Rosenblatt (1985) explain that the BSI's founder, Christopher Morley, had decreed that membership would be granted to those who solved a crossword puzzle printed in the May 13, 1934, Saturday Review of Literature; however, although several women submitted suitably correct answers, they were not invited to full membership in the BSI or invited to the group's annual dinners.

13. Although the BSJ was created as a labor of love and ultimately lost money for its publisher, it was not distributed for free. In the beginning, a subscription cost $5 (Lellenberg 1995, 155–56). Statutory damages would likely have been available to a copyright claimant against the BSJ, if its contents did not constitute fair use. For a description of the use of statutory damages in this era, see Pamela Samuelson and Tara Wheatland (2009, 449–50).

14. For a thorough discussion of those twists and turns, see generally Rosenblatt (2015).

15. For example, the iPad adventure book Steampunk Holmes: Legacy of the Nautilus is an adaptation of the public-domain story "The Adventure of the Bruce-Partington Plans." See Martin (2012).

16. See Complaint for Declaratory Judgment; Peter Hirtle (2017) charts the expiration dates of copyrighted works using factors including publication date, registration, and renewal, concluding that copyright protection has expired for all works first published in the United States before 1923.

17. The Web site Free Sherlock's page "Opinions" lists a number of resources to follow.

18. See also Allison (2013) (written by lead counsel for the Conan Doyle Estate).

19. See Pannonia Farms, Inc. v. USA Cable, No. 03 Civ. 7841(NRB), 2004 WL 1276842, at *2 (S.D.N.Y. June 8, 2004) and Plunket v. Doyle, No. 99 Civ. 11006(KMW), 2001 WL 175252, at *1 (S.D.N.Y. February 22, 2001) for court opinions establishing that Plunket owns no rights; an article in the New York Times by Dave Itzkoff (2010) discusses Plunket's assertions of rights. According to Richard Turley (2016) reporting on April 20, 2016, on, Plunket passed away on April 15, 2016. Plunket's Web site, which styles itself "The Official Site of the Sir Arthur Conan Doyle Literary Estate," states that she became "gravely ill" in December 2014 and that "the remaining family of Lady Etelka Duncan took over the management of the Sir Arthur Conan Doyle Literary Estate" but does not mention Plunket's death. Her death has not been reported in sources other than Turley's but has been confirmed by the funeral home director. Plunket's successors in administering the Web site staunchly maintain their ownership of the rights.

20. A comparison of Sherlockian fandom with real person fandom is beyond the scope of this essay, but I note here some interesting comparisons between the Great Game (in which fans treat a fictional character as real) and real person fandom (in which, in a sense, fans treat a real person as fictional). One might compare the Great Game to a real person fandom in which the real person is unable to express opinions other than those ascribed to him by fans. Real person fans may be likely to accede to legal or moral objections by the objects of their fandom themselves, but, like Sherlockians, their rebellion against third-party challenges may be fueled by disappointment at the reminder that the object of their fandom is autonomous and therefore, in a sense, can be owned or controlled by someone other than fans.

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