Conan Doyle Estate Is Horrified That The Public Domain Might Create 'Multiple Personalities' Of Sherlock Holmes

from the actually,-that's-the-point dept

For a few years now we've discussed a few times some of the confusion as to why Sherlock Holmes isn't considered in the public domain in the US, even though he probably should be. As we've explained, all of Sir Arthur Conan Doyle's Sherlock Holmes books except for one are in the public domain. The Conan Doyle estate claims that having that single book under copyright means that the entire character is covered by copyright. Earlier this year, we pointed out that a noted Sherlock Holmes scholar (such things exist!) named Leslie Klinger had decided to file for declaratory judgment that Sherlock Holmes is in the public domain, following a legal nastygram from the Estate, arguing that it needed a license fee for Klinger's latest book.

The Conan Doyle Estate has now filed its response to the motion for summary judgment, and it's an astounding study of ignorance concerning copyright law and the public domain. While it admits that there are only ten short stories (from that one remaining book) that are under copyright, it still argues that those ten stories lock up pretty much everything else. First, it argues that the characters of Sherlock Holmes and Dr. Watson continued to grow as personalities in those last ten stories, and that the stories were non-linear (i.e., some took place earlier in their fictional lives), it more or less encompasses everything, even those public domain works.
The facts are that Sir Arthur continued creating the characters in the copyrighted Ten Stories, adding significant aspects of each character’s background, creating new history about the dynamics of their own relationship, changing Holmes’s outlook on the world, and giving him new skills. And Sir Arthur did this in a non-linear way. Each of the Ten Stories is set at various points earlier in the two men’s lives—and even late stories create new aspects of the men’s youthful character. In other words, at any given point in their fictional lives, the characters depend on copyrighted character development.
Of course, if that's true, it basically presents a way to make copyright on characters perpetual. You just need to have someone continue to release new works that have some minor change to the character, and they get to pretend you have a new starting point for the public domain ticker. That can't be what the law intended.

Astoundingly, the filing suggests that the public domain clock only begins at the point where the "creation of the characters was complete." That is, so long as you never "complete" the character creation, they can never go into the public domain.
If the creation of the characters was complete in works published in the United States before 1923, the characters are in the public domain. If, however, the characters as works of authorship were only completed in copyrighted stories published in 1923 or after, the characters are works of authorship protected by United States copyright law.
But, if that's true, then the whole concept of the idea/expression dichotomy is shot to hell. Copyright is only supposed to cover the specific expression, not the wider ideas, which would include the facets of the character that were added in those last ten stories. But, the Estate is trying to flip this all on its head by arguing that those minor character changes in the small number of covered works retroactively flows back to the character in the earlier stories.

And then it gets really wacky. The Estate seems to freak out that if the elements of Holmes and Watson were to be declared public domain, then you'd get (*gasp*!) a splintering of their characters -- a fate that seems so horrific to the Estate, which they assume must also horrify everyone else. To the Estate, there can be only one version of those characters:
Plaintiff’s position would create multiple personalities out of Sherlock Holmes: a “public domain” version of his character attempting to only use only public domain traits, next to the true character Sir Arthur created. But there are not sixty versions of Sherlock Holmes in the sixty stories; there is one complex Sherlock Holmes. To attempt to dismantle Holmes’s character is not only impossible as a practical matter, but would ignore the reality that Sir Arthur Conan Doyle created a single complex character complete in sixty stories.
But, of course, it's not at all true that there is only one version of Holmes and Watson. There are infinite versions. There's the version that Conan Doyle intended. There are different versions that appear in each book. There are different versions that appear in various movies and television programs. There are different versions that live on in the minds of millions of readers and listeners and viewers who have experienced Sherlock Holmes's stories. In fact, the very nature of the public domain is to encourage that sort of thing by enabling everyone to build off of those cultural artifacts to create something new and different, using those original works as resources. To pretend that it's one singular cultural concept, only encapsulated in the whole of the published works, such that the public domain clock does not start ticking until the final work is published is entirely illogical.

The Estate also has a pretty serious problem, in that previous case law is against them on this. In particular, the Silverman v. CBS Inc. case, concerning the public domain status of "Amos 'n' Andy." In that case, the court ruled that the original radio scripts and the characters were in the public domain, even though some later television shows were not. The Estate tries to distinguish this case by arguing that Amos 'n' Andy didn't change over time and were "flat entertainment characters" who could be described as "without the depth and complexity of a living person." But that, too, makes little sense. Again, it's clear from that ruling that the characteristics of the parts that went into the public domain are, also, considered in the public domain. That those characters didn't change merely means that there were no remaining characteristics that remain under copyright protection even as the TV shows might. That still works in this particular case, where all of the characteristics outside of the final ten stories are also in the public domain. That there are character developments in those final ten stories, any copyright should only apply to the direct expression of those character developments.

The Estate also rejects the (fairly compelling) argument that a character is created in the initial work, and future works fleshing out that character are simply derivative works off of the initial copyright. That's a reading of the law that makes sense, but the Estate will have nothing to do with it, complaining that "it's not fair" to think of later works in a series as derivative. Honestly, that's about the extent of the Estate's argument here: that it's somehow insulting to suggest that later books in a series can be called "derivative" for the sake of copyright. But they seem to offer no legal theory to support this.

Of course, it's kind of ridiculous we're even having this fight. At the time those last ten stories were published (1927), the copyright law stated, clearly, that the maximum amount of time that the works could be under copyright was 56 years. Since the structure of copyright law is that it's supposed to act, in part, as an incentive to get someone to publish (for the purpose of promoting the progress of science and learning), clearly that incentive was enough. Any second beyond 56 years is taking the work away from the public domain, effectively going back on the deal with the public. The deal was "you get 56 years of exclusivity, and we get your book." Thus, it's insane and nonsensical that all Sherlock Holmes works haven't bee in the public domain since 1983. However, hopefully this case will show that nearly all of Holmes and Watson are, in fact, in the public domain.


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    Rikuo (profile), Sep 16th, 2013 @ 4:21am

    Let's say the Doyle estate lose this case. Any chance that they would be forced to return all monies obtained through demanding a licence because they say Holmes is still under copyright?

     

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    silverscarcat (profile), Sep 16th, 2013 @ 6:45am

    You mean...

    I can write a story of a time traveling Sherlock Holmes and not get sued for it?

    Awesome!

     

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    Ninja (profile), Sep 16th, 2013 @ 6:59am

    The beauty of the public domain is that it allows such multiple readings from the same idea. The results are simply great. Take the Bible as an example. I've read the book called "Lamb" from Christopher Moore and laughed my arse off (the scene where Bartholomeo has the dogs patrol the temple is priceless!) and heck if the Bible was under copyright (the current mad form) maybe it would never have seen the light of day. There's a book called "O Xangô de Baker Street" from Brazilian author Jô Soares that's simply awesome. In that book Watson has to take care of a bohemian Sherlock that just gets it wrong when trying to solve a series of assassinations under the effects of a lot of alcohol and local hallucinogen herbs. It's freaking hilarious.

    Point is, they are afraid of more culture developing around Mr Doyle's creation and are trying to use copyright to stop such 'progress'. It's clearly against the original intentions of copyright. Even if they lose and it's all settled the very fact that this could have been brought into a lawsuit spells "copyright is broken". It should be crystal clear and not the complete smoky madness that it is today after years of Mickey Mouse trampling.

     

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    dennis deems (profile), Sep 16th, 2013 @ 7:11am

    Bad Faith

    The estate's argument is bad faith through and through. If they truly cared about "multiple personalities of Sherlock Holmes" they would not have allowed the movie aberrations featuring Robert Downey Jr., nor the splendid modern adaptation Sherlock. To say nothing of the "Young Sherlock Holmes" alternate-universe weirdness.

    It's howlingly obvious all they care about are money and control.

     

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      S. T. Stone, Sep 16th, 2013 @ 9:02am

      Re: Bad Faith

      Don’t forget the CBS drama featuring Lucy Liu as Watson.

       

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      DetectiveAnon, Sep 17th, 2013 @ 3:29am

      Re: Bad Faith

      None of the Sherlock Homes works are under copyright in the UK - so any British adaptations don't need the estate's permission.

      Not to mention that the "estate" owners have little to do with Sir Arthur Conan Doyle. They're just hanging on to their cash-cow.

      The estate has s little to do with ACD that the Holmes fandom got together to write and publish some fanfics with the profits going to saving the home ACD wrote and lived in and turning it into a museum. Not a peep was heard from the "estate".

       

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      John85851 (profile), Sep 21st, 2013 @ 2:48pm

      Re: Bad Faith

      I completely agree.

      How can the estate claim they don't want "multiple personalities" of Holmes, when we already have (as of September 2013):
      1) "Sherlock": the BBC series with Benedict Cumberbatch and Martin Freeman.
      2) "Elementary": the CBS series with (shock!) Asian lady as Watson.
      3) The "Sherlock Holmes" movies with Robert Downey Jr and Jude Law.

      I can understand the state licensing these versions and making money, but why let CBS turn Watson into an Asian lady? I'm not saying they shouldn't try some innovating, but why do it concurrently when the BBC series is very good?

       

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    Jay (profile), Sep 16th, 2013 @ 7:23am

    Irony...

    I find it amazing that we're suing on the copyright of a detective that was smart enough to call BS on this type of faulty logic.

     

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    Michael, Sep 16th, 2013 @ 9:01am

    If only there were a man that had such amazing deductive reasoning that he could unwind any mystery through logic. Then, we could have him examine this situation and determine if it makes any sense to continue to have these works remain locked up.

    In fact, the story of that happening could make a great book! Someone should write about this character. He should have some kind of side-kick too.

     

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    out_of_the_blue, Sep 16th, 2013 @ 9:03am

    Why does every hack want to taint his source with crappy imitation?

    Singers do this too, covering a classic. It's a poisonous combination of homage with grifting off the prior value.

    Anyhoo, this is again an "argument" that makes me lean toward perpetual copyright, if it'd keep one of the few good characters in the world from being mis-treated by every hacky hack in Hacktown who just tacks a big name onto the front of his hackery.*

    If you're against copyright, quit putting your name on posts! You don't own the idea!

    [* Hack writer means one who turns out low-quality work, especially for hire; word usage now somewhat rare.]

     

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      S. T. Stone, Sep 16th, 2013 @ 9:09am

      Re: Why does every hack want to taint his source with crappy imitation?

      ‘Why does every hack want to taint his source with crappy imitation?’

      Because that’s how culture works. We take the characteristics of a good story, character, film, song, etc. and work them into our own works, either directly or indirectly and in pieces or in whole. Fifty Shades of Grey started off as a Twilight fanfiction. Practically every modern zombie movie is spun off of the original Night of the Living Dead. We appropriate old culture and transform it into new culture in one way or another. If we had perpetual copyright, culture couldn't grow because culture would require people to create 100% original works every time they set pen to paper or strummed a guitar or picked up a camera.

      Locking up culture behind a wall of control presents the most dangerous threat to culture. Copyright strangles culture. It denies us the right to grow culture and improve culture and create new culture.

      That you oppose the public domain (the best resource for anyone looking to grow and create new culture) says more about how much you respect how artists work and create than anything.

       

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        Ninja (profile), Sep 16th, 2013 @ 11:22am

        Re: Re: Why does every hack want to taint his source with crappy imitation?

        And dragons, elves, orcs and other fantastic creatures? Tolkien made a vibrant world bloom from his stories. But even the man himself used elements of the nordic and other european mythology. Culture is composed of original creations and derivatives alike, only a fool can't see it.

         

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          Pragmatic, Sep 17th, 2013 @ 5:26am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          It's Cathy the crazy copyright lady. What were you expecting, logic?

          Everything is derivative, Cathy. Everything. Detective novels existed prior to Doyle's work. http://www.theguardian.com/books/2012/feb/21/first-detective-novel-notting-hill-mystery

          Even the characters aren't particularly original. The Stoic Smoking Bookish Misanthrope has been a stock character in literature for centuries, as has the Trusty Sidekick. That Doyle gave Holmes a few character quirks and made him eccentric doesn't make him original. It's the quality of the writing that makes the stories work.

          Define "Grifter."

           

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      beech, Sep 16th, 2013 @ 9:13am

      Re: Why does every hack want to taint his source with crappy imitation?

      1) the original works would still exist. So to anyone who really cared the original characters would exist in perpetuity. Any non-doyle writing would be considered non-canon.

      2) who's to say these are to be no talent hack writers? Maybe they'll be really talented writers who write some really good shit. You made the exams of music, I find that many times the cover of a song surpasses the original. Will there be no talent ripoffs? Undoubtedly. But there will also be some amazing stuff.

       

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        S. T. Stone, Sep 16th, 2013 @ 9:15am

        Re: Re: Why does every hack want to taint his source with crappy imitation?

        I find that many times the cover of a song surpasses the original.

        To wit: Johnny Cash’s cover of ‘Hurt’.

         

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          Anonymous Coward, Sep 16th, 2013 @ 10:30am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          Even the original artist may like the cover better. Bob Dylan liked Jimi Hendrix's version of "All Along the Watchtower" enough that he began to perform that song with with an arrangement closer to the Hendrix version than his original.

           

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      Colin, Sep 16th, 2013 @ 9:18am

      Re: Why does every hack want to taint his source with crappy imitation?

      I know, I hate that too! I hear a cover and them I'm all, "Shit, now that there's a cover I can't listen to the original anymore! It's been poisoned or whatever!" The fact that I can't enjoy the original because it's been completely overwritten by the new thing is awful.

       

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        jupiterkansas (profile), Sep 16th, 2013 @ 9:23am

        Re: Re: Why does every hack want to taint his source with crappy imitation?

        Gee, the Beatles covered lots of songs and did a pretty good job of it.

         

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          Colin, Sep 16th, 2013 @ 9:28am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          And think of all those Beatles songs that have been erased from history because someone covered them! Such a shame.

           

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      jupiterkansas (profile), Sep 16th, 2013 @ 9:21am

      Re: Why does every hack want to taint his source with crappy imitation?

      You have no understanding of how art gets created.

       

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        JMT (profile), Sep 16th, 2013 @ 2:18pm

        Re: Re: Why does every hack want to taint his source with crappy imitation?

        This cannot be understated. OotB is monumentally ignorant about the creative process. His repeated comments along this same line provide ample evidence of this.

        Or maybe he's just a really good troll...

         

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          PaulT (profile), Sep 17th, 2013 @ 1:22am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          "OotB is monumentally ignorant"

          I edited your comment for brevity and added truth ;)

           

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            jupiterkansas (profile), Sep 17th, 2013 @ 7:39am

            Re: Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

            OotB also seems to really enjoy being insulted on a daily basis. I guess any attention is better than no attention.

             

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      Chris Rhodes (profile), Sep 16th, 2013 @ 9:24am

      Re: Why does every hack want to taint his source with crappy imitation?

      OotB (once again) reveals the true reason for his support of copyright: censorship of things he doesn't like.

       

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        RD, Sep 16th, 2013 @ 10:22am

        Re: Re: Why does every hack want to taint his source with crappy imitation?

        "OotB (once again) reveals the true reason for his support of copyright: censorship of things he doesn't like."

        No. Wrong. Its retribution for his/her/its failure to make it as any kind of creative talent. He/it is trying to punish the world because he/it couldn't make anything that anyone wanted.

         

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      DOlz (profile), Sep 16th, 2013 @ 9:32am

      Re: Why does every hack want to taint his source with crappy imitation?

      Frequently remakes are lousy. As Theodore Sturgeon stated "90 percent of everything is crap", personally I've always thought he was being generous. But, that's the point it isn't just the remakes that are terrible some times it is also the source material.

      To decide in advance that something is now a classic and can never be touched is wrong on so many levels. It denies everyone in the future the ability to play with an idea or concept. Will most of them suck? Yep, but that gem that you would deny the chance to come into existence makes it worth plowing through the dross.

       

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      Anonymous Coward, Sep 16th, 2013 @ 9:43am

      Re: Why does every hack want to taint his source with crappy imitation?

      So you'd rather the estate grift off a work they had no hand in creating.

      out_of_the_blue just hates it when due process is enforced.

       

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      Anonymous Coward, Sep 16th, 2013 @ 10:12am

      Re: Why does every hack want to taint his source with crappy imitation?

      I must smile by mention of the world "perpetual" since its mere use appears to drive the anti-copyright crowd into hysterics and tachycardic fits.

      Just out of curiosity, were this 1928 does anyone doubt that this site would be arguing that the author's copyright has lasted one year, long enough for the publication of a first edition, and that it should now enter the public domain so it could be used to create more culture? In fairness, even here 5 years would likely be acceptable...but any longer is simply the giveaway of an underserved monopoly.

       

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        jupiterkansas (profile), Sep 16th, 2013 @ 10:30am

        Re: Re: Why does every hack want to taint his source with crappy imitation?

        Certainly 83 years after the death of the creator is "a giveaway to an underserved monopoly."

        Many here would argue that there should be no copyright at all.

        I'm in favor of short, renewable 10-15 year terms myself, with limits on the number of times something may be renewed. 45 years seems reasonable - a 20-year-old author would be 65 when the copyright expires, giving them a whole working lifetime to derive profits, provided they keep renewing. You would assume that anyone collecting substantial royalties on a work after 45 years would be wealthy enough to have saved for retirement.

        More importantly, we need a government-run and legally authoritative searchable database, since one of the biggest problems with copyright is there's no easy way to determine if something is under copyright. The United States does not have such a database, which is abominable.

        Not that any of these changes would ever happen.

         

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          V, Sep 17th, 2013 @ 10:15am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          Not that any of these changes would ever happen.

          And here's why:

          http://en.wikipedia.org/wiki/Public_Domain_Enhancement_Act#Opposition_to_PDEA

           

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          V, Sep 17th, 2013 @ 10:15am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          Not that any of these changes would ever happen.

          And here's why:

          http://en.wikipedia.org/wiki/Public_Domain_Enhancement_Act#Opposition_to_PDEA

           

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          Anonymous Coward, Sep 18th, 2013 @ 8:58am

          Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

          45 years seems reasonable - a 20-year-old author would be 65 when the copyright expires, giving them a whole working lifetime to derive profits, provided they keep renewing. You would assume that anyone collecting substantial royalties on a work after 45 years would be wealthy enough to have saved for retirement.


          That rather depends. An author might experience only modest success on an early work, and throughout their life, only to have a later work be wildly successful and spark a strong interested in their earlier works. It would really suck for someone to barely make ends meet throughout their life, finally hit it big, only to have half their back catalog in the public domain, free for exploiting by others.

           

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            nasch (profile), Sep 18th, 2013 @ 9:43am

            Re: Re: Re: Re: Why does every hack want to taint his source with crappy imitation?

            It would really suck for someone to barely make ends meet throughout their life, finally hit it big, only to have half their back catalog in the public domain, free for exploiting by others.

            Seems like it would be pretty unusual for someone to only hit it big late in life. And even if that happens, they obviously had enough incentive to create those earlier works, so a longer copyright term wasn't necessary in that case.

             

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        JEDIDIAH, Sep 16th, 2013 @ 10:48am

        Re: Why does every hack want to taint his source with crappy imitation?

        > that this site would be arguing that the author's copyright has lasted one year, long enough for the publication of a first edition, and that it should now enter the public domain

        There would simply be no need because everyone here would see that works were entering the public domain. There would be no need to fight against the modern corruption of copyright law to benefit a few large corporations.

        Context is everything of course.

        There isn't going to be a backlash against a perceived injustice without that injustice.

         

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      James Burkhardt (profile), Sep 16th, 2013 @ 12:36pm

      Re: Why does every hack want to taint his source with crappy imitation?

      Copyright is supposed to provide value to the artists right? thats what you keep arguing? So how is it still providing value to a dead man? Perpetual copyright means his 'estate' keeps making money forever.

      What is his estate? Lawyers and his heirs. I thought you said lawyers were bad? But you want them to be able to grift income off of the work of a dead man? Forever? What kind of screwed up logic is that? I thought you hated grifters....

       

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    crade (profile), Sep 16th, 2013 @ 9:05am

    "then the whole concept of the idea/expression dichotomy is shot to hell. "

    Be realistic, this is already shot to hell as Characters are obviously ideas and not expressions anyway. The specific words or images mage to describe the character would be the expression.

     

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    Anonymous Coward, Sep 16th, 2013 @ 9:06am

    this is what makes copyright a joke, the original creator is dead. The estate is just sponging of the work not adding anything.

     

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      any moose cow word, Sep 16th, 2013 @ 12:20pm

      Re:

      I guess that's why lawyers want legal filings to be considered "creative expressions" that can be covered by copyright, to put their banal legal depictions of literary characters on par with the original works so that they can keep the estate on life support by filing lawsuits and continue leeching off it to sustain the lifestyle they've grown accustomed to.

       

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    Colin, Sep 16th, 2013 @ 9:20am

    Has anyone ever just straight up asked the Estate why they feel they should be profiting off of a creation they had no part in? Like, what's the difference between them doing what they want with the character(s) and anyone else doing the same? I'd honestly be interested in their answer.

     

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      jupiterkansas (profile), Sep 16th, 2013 @ 9:25am

      Re:

      Esp. considering Doyle died 83 years ago. Copyright is insane!

       

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        mattshow (profile), Sep 16th, 2013 @ 9:44am

        Re: Re:

        Esp. considering Doyle died 83 years ago. Copyright is insane!

        83 years you say? Then the Sherlock character is doomed to splinter anyway, regardless of the result of this lawsuit. There will be the official Doyle-estate sanctioned version... and his nefarious toque-wearing Canadian counterpart, a notorious freeloader who respects copyright for a mere 50 years after the author's death, and not a day longer!

         

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        Richard (profile), Sep 16th, 2013 @ 10:01am

        Re: Re: 83 years

        Under what regime is anything still in copyright then?

        Surely in the UK it has finally passed the life +70 term (in fact it will have gone PD via the old life+50 term in 198 - only to be brought back by the disgraceful extension sponsored by Callaghan.

         

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          nasch (profile), Sep 17th, 2013 @ 6:25am

          Re: Re: Re: 83 years

          Under what regime is anything still in copyright then?

          If it was published after 1923, it can be under copyright for 95 years.

          http://copyright.cornell.edu/resources/publicdomain.cfm

           

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            MacCruiskeen, Sep 17th, 2013 @ 7:51am

            Re: Re: Re: Re: 83 years

            And this is exactly why media corporations like Disney keep fighting for copyright extensions. Disney knows that if the early works that their characters derive from (i.e., "Steamboat Willy", etc.) start falling into public domain, their control over those characters will weaken. They're going to be freaking out again in the next couple of years. But the media landscape is quite a bit different from 20 years ago now, and maybe there's enough awareness of these issues to keep another extension from going through.

             

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        silverscarcat (profile), Sep 16th, 2013 @ 12:02pm

        Re: Re:

        Wait a second...

        if Doyle died 83 years ago...

        ...

        Then all his works should have been in the public domain in 2000.

         

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          V, Sep 17th, 2013 @ 10:22am

          Re: Re: Re:

          f Doyle died 83 years ago...

          ...

          Then all his works should have been in the public domain in 2000.


          Works first created on or after January 1, 1978 enter the public domain 70 years after the death of the author if the author is a natural person.

          Works published and copyrighted 1923-1977 retain copyright for 95 years, assuming all renewal requirements were met. No such works will enter the public domain until 2019.

          All works whose copyrights were secured in the US before 1923 are now in the public domain.

           

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      Bergman (profile), Sep 20th, 2013 @ 10:07am

      Re:

      Did you create the land your house sits on? Should you get any money from it when you transfer ownership of it to someone else?

       

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    Anonymous Coward, Sep 16th, 2013 @ 9:24am

    Retelling stories

    An estate takes the view that a story is fixed, maybe because they cannot produce new work and rely on the original remaining under their control to earn money.. However in the longer term this causes the story and the story teller to fade from culture as language and culture changes.
    Stories need to be retold as culture and language change else they fade away as fewer and fewer people can actually read them. Where would stories of King Arthur be if they were not retold as language and culture changed.

     

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      jupiterkansas (profile), Sep 16th, 2013 @ 9:28am

      Re: Retelling stories

      This is the whole point!

      Every generation has a new way of telling the same stories that makes it relevant to them, even if that means setting it space or adding zombies. It's not about improving the original. It's about using prior cultural references to say something new and relevant.

       

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      Anonymous Coward, Sep 16th, 2013 @ 9:46am

      Re: Retelling stories

      Or for a another example, how many people know of Dracula due to having read the original novel Dracula by Bram Stoker, versus how many people know of Dracula due to more recent works doing their own take on the character?

       

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      Anonymous Coward, Sep 16th, 2013 @ 9:53am

      Re: Retelling stories

      In 200 years language change a lot. In 70 years it doesn't change as much as in 200 years. Just don't expect that line of reasoning to fly very far if you want to argue for a reduction of copyrights reach. The fuzzy line-drawing and the speed in which language change will not make your arguments strong by themself and they do not do anything to argue against the current state of affairs. Also: We are no longer relying on mouth to ear as the only way to relay stories. It takes quite some time for books to fade away, let alone digitally distributed stories.

       

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        jupiterkansas (profile), Sep 16th, 2013 @ 10:00am

        Re: Re: Retelling stories

        Language changes with every generation, as does their view of the world and they way people relate to culture. 99% of cultural matter falls into irrelevance in 10 years or less. A tiny few things stick around forever, and an exceptionally small slice of that remains culturally known.

         

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          Anonymous Coward, Sep 16th, 2013 @ 12:41pm

          Re: Re: Re: Retelling stories

          Completely agree. We are probably even reaching the irrelevance in 3 years for most culture.

          The point is that the changes in language and culture by themself are not responsible for the death of the work.
          The monetization culture will do the trick much faster, as to make changes in language and culture basically irrelevant.

           

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            jupiterkansas (profile), Sep 16th, 2013 @ 1:45pm

            Re: Re: Re: Re: Retelling stories

            Almost everything is irrelevant the moment it's created. In the scheme of everything created - photos, designs, graphics, blog postings, web pages, doodles, etc. - most of it has no monetary or cultural value at all. Yet it is still an original creation protected by copyright.

            Some things have value for a few days, or weeks, or years. Some of it preserves it's value by being part of a collection (like a newspaper article). Some things have lasting cultural value but no economic value, and some things have enormous economic value because they are unique and can't be copied (like paintings).

            Unfortunately, copyright can only measure value in one way, so it's taken the most extreme stance that everything ever created has lasting economic value in order to protect the very few things that actually do have lasting economic value.

             

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          Bergman (profile), Sep 20th, 2013 @ 10:11am

          Re: Re: Re: Retelling stories

          And sometimes even within a generation. Take the

           

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      Internet Zen Master (profile), Sep 16th, 2013 @ 10:03am

      Re: Retelling stories

      "However in the longer term this causes the story and the story teller to fade from culture...
      ... Stories need to be retold as culture and language change else they fade away as fewer and fewer people can actually read them."


      This pretty much nails the problem the Doyle Estate is creating for itself.

      I have personally seen stories (well, primarily the characters) and their creators sink into obscurity in the collective universe known as Creepypasta.

      Money isn't an issue since the stories are published on the net for everyone to read (but many Creepypasta artists/writers will enforce their copyright over their creations in extreme circumstances), but the fact is: the characters in the creepypastas are not (in theory) supposed to be limited to just one single work, or even their original author. What gives those characters longevity is if more people start writing stories about them, keeping the characters relevant and spreading the word about their existence to an even greater number of readers.

      I've seen a few characters pop up and then drop off the radar because the collective fandom/culture changed and forgot about them within a couple months.

      Now while Sherlock Holmes might take decades or even centuries longer to disappear from modern culture than a bunch of characters that only a specific subculture knows about, a similar thing could happen to good great detective and dear old Watson if people stop retelling Conan Doyle's stories.

       

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      PaulT (profile), Sep 17th, 2013 @ 5:43am

      Re: Retelling stories

      "Where would stories of King Arthur be if they were not retold as language and culture changed."

      More to the point, where would they be if the estate of 12th century writer Chrétien de Troyes demanded all rights and control over the characters he apparently added to the story (including, apparently, Lancelot and the Holy Grail) or if Geoffrey of Monmouth kept those he is purported to have added to the legend (including Merlin and Excalibur)?

      You'd have to be a complete idiot not to see that culture and history would be far poorer without the works that were either adapted from or inspired by these characters.

       

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    aethercowboy (profile), Sep 16th, 2013 @ 9:39am

    I've never understood this concept with a character being protected by copyright. It seems to imply that the character is a fixed and tangible creative work.

    I think that future cases of copyright over characters should require the authors or estates to present the so-called infringed upon work to the courts.

     

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      Anonymous Coward, Sep 16th, 2013 @ 9:56am

      Re:

      Characters being covered by copyright is pretty understandable. If characters and setting weren't covered, anyone could publish and sell fan fiction. Just imaging someone deciding the next Game of Thrones book was taking too long to come out, and writing and publishing their own continuation.

       

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        Anonymous Coward, Sep 16th, 2013 @ 10:11am

        Re: Re:

        That's easy - just name it "Killing In the Name Of George R. R. Martin." and make characters die in creative and shocking ways.

         

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        Anonymous Coward, Sep 16th, 2013 @ 10:11am

        Re: Re:

        I, for one, am looking forward to the Mel Brooks send-up: "Sherlock Holmes: Gentlemen in Tights".

         

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        Rikuo (profile), Sep 16th, 2013 @ 10:17am

        Re: Re:

        And that's a bad thing because...?

         

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          Internet Zen Master (profile), Sep 16th, 2013 @ 10:26am

          Re: Re: Re:

          I guess you could say it's a bad thing because people might start confusing non-canon events (the book published by someone else) with canon events (the book published by the series original author) and vice versa.

          It's actually happened to a relatively well-known character in the Creepypasta universe (nobody's making money off the character, but the problem is still the same).

           

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            John Fenderson (profile), Sep 16th, 2013 @ 11:52am

            Re: Re: Re: Re:

            I'm not sure why this is automatically a bad thing. Besides, wouldn't those who actually care about things like what's "canon" and what's not just pay attention to who wrote it and ignore "non-canon" authors? Those who don't care about such things wont' be bothered by it and wouldn't pay such close attention.

            Everybody wins!

             

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              Anonymous Coward, Sep 16th, 2013 @ 12:52pm

              Re: Re: Re: Re: Re:

              In addition to the problem of people confusing what is an isn't canon, the author would end up competing with his own initial fan base in the market place. It would be entirely possible for the guy that came up with a great setting to be screwed over by the equivalent of a couple dozen people writing what amounts to decent fan fiction, simply because they can write faster than him. That's not particularly conductive to getting authors to write strong series.

              So the author doesn't win as he creates a setting and characters, and then loses out on sales as other people run with it before he can, then when he does come out with a new novel, few people care because other authors have run the brand name into the ground.

               

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                Anonymous Coward, Sep 16th, 2013 @ 1:18pm

                Re: Re: Re: Re: Re: Re:

                The possible solution to this is for the author to collaborate with fans, such as the ring of fire series by Eric Flint published by Baen.

                 

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                  Anonymous Coward, Sep 16th, 2013 @ 1:46pm

                  Re: Re: Re: Re: Re: Re: Re:

                  That could work, but not all authors will be willing or able to work with others that way.

                  You also develop problems like have cropped up in the Star Wars or Dragonlance franchises from time to time where one author develops a character, then another kills them off. One author writes a character as fairly intelligence and capable in most situations, and another writes them as an idiot that pretty much needs their hand held in similar situations. One author makes sweeping changes to the setting, and author authors are forced to abide by them.

                  And that's the problems that crop up when there is one central authority with the license to organize things. Just imagine the magnification of the problems if authors weren't forced to abide by the central authority and had a rift in where to take things.

                   

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                John Fenderson (profile), Sep 16th, 2013 @ 1:24pm

                Re: Re: Re: Re: Re: Re:

                I still fail to see how confusing what is or is not "canon" is a problem at all, but regardless of that...

                If you're arguing that the problem is some kind of "brand dilution," then copyright is the wrong tool for the job. The author might look into trademarking instead.

                The fact that copyright law can be used to prevent derivative works is one of the really awful things about copyright at it exists nowadays. It is plainly clear that things like characters, set, and setting were specifically excluded from being copyrightable, and for very good reason.

                Copyright is supposed to, and should, only apply to specific expression (the words used), not to ideas (the characters, etc.) When it gets applied to ideas, then the societal deal that is copyright has been violated, and that essential value of copyright itself is weakened.

                 

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                  Anonymous Coward, Sep 16th, 2013 @ 1:51pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Then you're demanding twice the work load on the author's part to protect their works from being exploited and plagiarized by others. First for the copyright to keep people from reprint and selling their work without permission, second for trademark on the series names, and all the characters to keep others from using them.

                  You massively increase the overhead, just to get (at best) the same protection that current copyright laws provide.

                   

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                    John Fenderson (profile), Sep 16th, 2013 @ 3:19pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I rather suspect that we disagree on what counts as "exploiting and plagiarizing".

                    Copyright, historically, is about preventing plagiarizing -- that is, taking someone else's words as your own. Producing an original work that is set in a universe someone else invented is certainly not plagiarism. Doing so should not be (and wasn't until the relatively recent rounds of copyright expansion) a copyright violation.

                    Trademarking the name a series? Sure, it's a bit more work, but it's not double. You only need to do it once for the whole series, after all.

                    "Protecting" characters doesn't seem like the sort of thing that should be allowed (there's no societal benefit to it). But if an author wants to be pigheaded about it, then making them go to the extra effort to qualify for a trademark doesn't seem like too great of a burden.

                     

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                      Anonymous Coward, Sep 16th, 2013 @ 4:00pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I suspect we do disagree on what counts as "exploiting and plagiarizing". For example, I consider the pornographic movie "Fifty Shades of Grey: A XXX Adaptation" that Smash Pictures attempted to publish to be exploiting and plagiarizing the series. By what you are saying, you would not.

                      I'm no copyright lawyer or historian, but I'm pretty sure that historically, copyright has included the characters of a work as well for quite some time. That's why Mickey Mouse is still under copyright, and not in the public domain. Setting is a bit weaker protected, but there's a reason you don't see a bunch of books published in the Star Trek or Star Wars universe that don't have official approval.

                      Protecting the characters has just as much societal benefit to it as protecting the work. Indeed, it's kind of critical if you want an author to produce a series rather than just a bunch of one novels. Otherwise you're basically saying that it would be a great thing for anyone to be able to use Darth Vader any way they saw fit once the first Star Wars movie was released. Or that anyone should be able to film a season of Game of Thrones using the same characters, as long as they changed the name of the series and wrote their own script.

                       

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                        John Fenderson (profile), Sep 17th, 2013 @ 10:14am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        it's kind of critical if you want an author to produce a series rather than just a bunch of one novels.


                        I disagree completely on this. I don't think it would affect a thinking author's decision one way or the other. But neither of us have any evidence, so this is just duelling opinions.

                        Otherwise you're basically saying that it would be a great thing for anyone to be able to use Darth Vader any way they saw fit once the first Star Wars movie was released.


                        I am saying that. I do think that would be a great thing.

                         

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                          Anonymous Coward, Sep 17th, 2013 @ 11:00am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          True, this is ultimately just dueling opinions. We'd have to start asking actual authors how your proposed changes to current copyright protections, and the theoretical implications would impact them to begin to get evidence, and assume neither of us cares sufficiently to go to that amount of effort. Still, I'd imagine it would be disheartening for most authors to create a universe and characters, only to see other people immediately take the setting and characters they spent so much time developing, and use them for their own profit.

                          I am saying that. I do think that would be a great thing.


                          Then that's likely the key divide between us. I find it quite reasonable for the original author to have large degrees of control over the non-parody usage of the stories, characters, and settings they create, during their lifetime. It keeps the person that thought up the ideas in the first place benefiting from their ideas, rather than having their ideas being unconditionally exploited by others. Similarly I find it reasonable for the control to be extended for a time after the author's death, as it gives those close to them the ability to keep just anyone from finishing the author's unfinished works (for example, Robert Jordan and the Wheel of Time series).

                          The problem I find is rights being transferred from the creators to large corporations, and the rights being extended for decades and decades past the original creator's deaths. There's a balance to be struck, and I don't think that balance is as simple as "everything is immediately in the public domain".

                           

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                            That One Guy (profile), Sep 17th, 2013 @ 12:24pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Still, I'd imagine it would be disheartening for most authors to create a universe and characters, only to see other people immediately take the setting and characters they spent so much time developing, and use them for their own profit.

                            While some might be annoyed by the 'profits' angle(depending on the person), from what I've seen, most authors are absolutely thrilled by people writing stories and creating characters in the universes they've created, as it means that they've created something to interesting, so engaging that people want to explore it even more, or write adventures involving the world they've created.

                            That's the fans saying 'You've made something cool and interesting enough that I want to be a part of it too', and you'd be hard pressed to find an author who really cared about the world/characters they've created, and the fans they've got, who didn't take that as the complement that it is.

                             

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                              Anonymous Coward, Sep 17th, 2013 @ 1:02pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              Yes many of them are thrilled by fan works.

                              However I'm dubious they would be as thrilled if those fans were selling said works alongside their own original works.

                              That's the thing about fan fiction, and other fan works. They're derivative works, but they're generally speaking non-profit derivative works thanks to copyright. Remove that, and you've got A Song of Fire and Ice fanfiction turning up on Amazon searches for the series.

                              I also expect most authors are thrilled when someone wants to make a movie or TV show based on their books. I expect that nevertheless they still want a fair share of the profits of said movie or series. Many would probably want some sort of say in it as well, just to try and guarantee that the result would not be a travesty that shares nothing more than names with their series.

                               

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                                nasch (profile), Sep 17th, 2013 @ 1:18pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                ...dubious they would be as thrilled...most authors are thrilled...they still want...Many would probably want...

                                You keep talking about what authors want and what makes authors happy as though that's the purpose of copyright law. It isn't. Do you have any argument that describes how prohibiting derivative works promotes the progress, grows the public domain, or otherwise benefits the public?

                                 

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                                  Anonymous Coward, Sep 17th, 2013 @ 1:57pm

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  You keep talking about what authors want and what makes authors happy as though that's the purpose of copyright law. It isn't. Do you have any argument that describes how prohibiting derivative works promotes the progress, grows the public domain, or otherwise benefits the public?


                                  No, I keep talking about what would protect the author's profits, and what would keep them producing new works. Part of that involves keeping the author happy.

                                  I've already more or less stated one argument, but to restate and expand it, prohibiting for profit derivative works promotes progress as new author's have some assurance that if their work is successful they will benefit from it and control it. That's pretty much why the Copyright Clause of the Constitution reads "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." People that can't profit from their work have significantly less incentive to work.

                                  Furthermore, preventing people from wholesale copying of characters and settings forces other would be creators to think of their own characters and settings. Thus rather than a million stories set in Middle Earth or Krynn, people have to come up with their own fantasy settings with it's own rules.

                                  As for growing the public domain, it both encourages author's to write more material as they can be assured of profits from it's success, and encourage other authors to write their own works and expand a unique story into a far more broad genre.

                                  Furthermore, as I said before, the problem is not that copyright keeps others from making derivative works, the problem is that the length of copyright keeps works from entering the public domain for longer than is reasonable. We would not even be having this argument if all of Arthur Conan Doyle's works had entered the public domain back in the 1980s.

                                   

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                                    nasch (profile), Sep 17th, 2013 @ 2:35pm

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    Furthermore, as I said before, the problem is not that copyright keeps others from making derivative works, the problem is that the length of copyright keeps works from entering the public domain for longer than is reasonable.

                                    Totally agree with that. Almost all the problems of copyright would go away if it had a very short term.

                                     

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                            nasch (profile), Sep 17th, 2013 @ 12:26pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Still, I'd imagine it would be disheartening for most authors to create a universe and characters, only to see other people immediately take the setting and characters they spent so much time developing, and use them for their own profit.

                            Even if true, that is not a reason to outlaw it.

                            It keeps the person that thought up the ideas in the first place benefiting from their ideas, rather than having their ideas being unconditionally exploited by others.

                            According to the idea/expression dichotomy, there should be no ownership of ideas and anyone should be able to use any ideas they want in any fashion they want. The derivative works doctrine turns that on its head though.

                            Similarly I find it reasonable for the control to be extended for a time after the author's death, as it gives those close to them the ability to keep just anyone from finishing the author's unfinished works (for example, Robert Jordan and the Wheel of Time series).

                            The public would clearly benefit more if people could finish those works, and that's supposed to be what copyright is about.

                             

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                              Anonymous Coward, Sep 17th, 2013 @ 1:31pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              Even if true, that is not a reason to outlaw it.


                              When the result is an author having their work being commercially exploited by other the moment they publish it, yes it is. So you think that the MPAA members would pay one cent to the original author if they did not have to? That's one thing copyright currently prevents.

                              According to the idea/expression dichotomy, there should be no ownership of ideas and anyone should be able to use any ideas they want in any fashion they want. The derivative works doctrine turns that on its head though.


                              That's likely to simplify the question of what constitutes an idea and what constitutes an expression in literature is not always simple to define, and the derivative works doctor sidesteps the problem in most relevant areas, while protecting the original author.

                              The public would clearly benefit more if people could finish those works, and that's supposed to be what copyright is about.


                              And the family and publisher should not have the right to choose who finishes the works as in the case of the Wheel of Time? Who ever is the quickest to writer and publish their own ending should be the one to get to write the ending for the story?

                               

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                                nasch (profile), Sep 17th, 2013 @ 2:34pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:


                                When the result is an author having their work being commercially exploited by other the moment they publish it, yes it is.


                                Authors finding something disheartening is not a reason to outlaw it, which is what I was responding to. And even the new point you just raised is only a valid concern for copyright if it decreases public access to creative works.


                                And the family and publisher should not have the right to choose who finishes the works as in the case of the Wheel of Time?


                                Why should they? They didn't create the works. What is the public benefit in keeping others from writing?

                                Who ever is the quickest to writer and publish their own ending should be the one to get to write the ending for the story?

                                No, anybody who wants to.

                                 

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                                  Anonymous Coward, Sep 17th, 2013 @ 5:11pm

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  Why should they? They didn't create the works. What is the public benefit in keeping others from writing?


                                  They are the ones that know the author best, and how he would write best. His editor who he likely will have discussed the story with will likely be a family member or work for the publisher. The future direction of his story is something he has likely discussed with them. They will be the ones in possession of any notes or incomplete manuscripts. In short, they are the ones in the best position to see to it that the completion of the series is as close to what the author themselves would have written as is possible. If they cannot do the writing themselves, they are the ones best suited to pick an author capable of doing the job.

                                  No, anybody who wants to.


                                  So you would prefer a dozen different authors, publishing dozens of books purporting to be the conclusion of a series, rather than a few books publish by a single author best able to finish the series the way the original author would have wanted, using material the original author left behind?

                                  Or to put it another way, what best benefits the public when an author dies with a series unfinished? For the series to be finished by those best able to finish it the way the author would have finished it? Or for any one that cares to do so to make up their own ending regardless of whether or not it's remotely close to what the author would have written?

                                   

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                                    nasch (profile), Sep 18th, 2013 @ 7:19am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    They are the ones that know the author best, and how he would write best.

                                    Possibly, but I would imagine in many cases that is not true. Sounds like a sketchy assumption to base a copyright theory on.

                                    So you would prefer a dozen different authors, publishing dozens of books purporting to be the conclusion of a series, rather than a few books publish by a single author best able to finish the series the way the original author would have wanted, using material the original author left behind?

                                    I would rather copyright apply to expressions and not ideas. If characters are considered expressions, then so be it - no unauthorized sequels. People would have to make their own stories using whatever ideas they wanted, including ones from other series. Whether the author is living or dead doesn't really seem to matter.

                                    Or for any one that cares to do so to make up their own ending regardless of whether or not it's remotely close to what the author would have written?

                                    If copyright works the way it's supposed to, that's going to happen anyway, it's just a question of when.

                                     

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                      nasch (profile), Sep 17th, 2013 @ 9:28am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Copyright, historically, is about preventing plagiarizing -- that is, taking someone else's words as your own.

                      No, it's about preventing copying. I can copy without plagiarizing. I don't think even the Statute of Anne was about plagiarism, was it?

                       

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                        John Fenderson (profile), Sep 17th, 2013 @ 10:16am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        It was about verbatim copying (and even then, only about verbatim copying of a tiny subset of the types of works that it covers now). It was specifically not about preventing derivative works.

                         

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                    aethercowboy (profile), Sep 17th, 2013 @ 8:47am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    When I was at the hardware store, the idiot behind the counter tried to convince me that I needed to buy a screwdriver when I already had a hammer. I told him that he and the tool industry wer demanding twice the workload from me in order to fasten two objects with a piece of metal.

                    I've been using hammers and nails for as long as I can remember, and now I have to use screws and a screwdriver? Plus, I hear they have TWO DIFFERENT KINDS of screwdrivers. Why should I have to massively increase my overhead when a hammer can already be used on nails and nail-shaped objects?

                     

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                      Anonymous Coward, Sep 17th, 2013 @ 10:24am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Overly simplified and caricatured analogies do not make for strong arguments.

                      Yes, Copyright and Trademark provide different but similar, though sometimes overlapping protections.

                      However right now, authors can get pretty much everything they really want in the way of protection, with just copyright. They don't have to worry about some movie studio making their own movie "based" on the author's book without the author's approval for example, as the name, story, characters, and setting are all effectively covered by copyright. They don't need to go and trademark each individual character to keep some studio from freely using a character without permission.

                      So to make an analogy more comparably to what is being suggested here, copyright is like having a power drill, with drill bits, and screwdriver heads. You can use it to drill holes in things, or to quickly and easily screw things in. What you are suggesting is to remove the screwdriver heads from the drill set, and force people to buy a separate screwdriver set instead. Requiring two screw drivers to do the same just as one reversible screw driver head, and doing the job less efficiently to boot.

                       

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                nasch (profile), Sep 17th, 2013 @ 10:22am

                Re: Re: Re: Re: Re: Re:

                It would be entirely possible for the guy that came up with a great setting to be screwed over by the equivalent of a couple dozen people writing what amounts to decent fan fiction, simply because they can write faster than him.

                If they can also write as well as he can, great. More good fiction in the marketplace. If they cannot, then the original author can still compete on quality.

                few people care because other authors have run the brand name into the ground.

                If few people care about good literature, yes. You seem to think that fans will read every piece of crap fan fiction book that comes out and then be sick of it by the time the official sequel is released. From what I know of fans, that sounds extremely unlikely.

                 

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        Anonymous Coward, Sep 16th, 2013 @ 11:22am

        Re: Re:

        they could! they do! there are stories being told all the time that do EXACTLY this.

        you know why it doesn't matter? because if you are into the game of thrones, you know that only the RR version is the real one.

        the other stories, the other art, the other creations have changed that exactly none.

         

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          Anonymous Coward, Sep 16th, 2013 @ 12:36pm

          Re: Re: Re:

          And all those other stories are fan fiction being posted online, or perhaps in fanzines. Not being sold in stores billed as A Song of Ice and Fire book #6.

          That's why they have no real impact on the real series, they simply aren't in a position to compete with it in any of it's marketplaces.

           

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            John Fenderson (profile), Sep 16th, 2013 @ 12:41pm

            Re: Re: Re: Re:

            If they were being sold (as some are -- such as 50 Shades of Grey), how would they have any adverse impact on the real series? I don't see how the commercial status of the works affects that in any way.

             

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              Anonymous Coward, Sep 16th, 2013 @ 1:03pm

              Re: Re: Re: Re: Re:

              The key thing there is that 50 Shades of Grey had to rebrand itself and it's characters. It could not bill itself as a story in the Twilight universe, nor bill it's characters as the same characters as those in Twilight.

              Thus while it became competition, it couldn't impact the Twilight franchise the way it could if it billed itself as part of the franchise.

               

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                John Fenderson (profile), Sep 16th, 2013 @ 1:26pm

                Re: Re: Re: Re: Re: Re:

                But if it were overtly set in the Twilight universe, how would that negatively affect Twilight?

                And, more importantly, how is applying copyright to ideas not an abuse of copyright?

                 

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                  Anonymous Coward, Sep 16th, 2013 @ 2:03pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Do you really think Twilight as a franchise, highly popular with a pretty young, underage crowd, would not suffer backlash at the publication of a book purporting to be part of the series that contained "explicitly erotic scenes featuring elements of sexual practices involving bondage/discipline, dominance/submission, and sadism/masochism"?

                   

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                    John Fenderson (profile), Sep 16th, 2013 @ 3:20pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Yes, I really think that. The independent erotic work set in the Twilight universe might suffer a backlash, but certainly not the actual Twilight books.

                     

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                      Anonymous Coward, Sep 16th, 2013 @ 4:14pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Then you are rather naive. The parents discovering that the "latest book in the best selling Twilight Series" their 12 year old daughter picked contains hardcore erotica aren't going to raise an outcry against just the one book, they're going to raise it against the series as a whole, under the fairly reasonable assumption that if the book shares the name, shares the characters, and advertises itself as part of the series; then it's a book authorized by the original author/publisher. People hearing about the outcry won't do the research to figure out who wrote what, they'll steer clear of the series as a whole. Etc and so forth.

                      Really, ultimately the problem here is not the copyrighting of characters and settings. That's gone on for quite some time now. The root probably here is copyright being held overly long past the death of the original creator to the point that most of a century later the works are not fully in the public domain. If all Arthur Conan Doyle's works entered the public domain 50 or 20 years after his death, this would not be a problem.

                       

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                        John Fenderson (profile), Sep 17th, 2013 @ 10:24am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        The parents discovering that the "latest book in the best selling Twilight Series"


                        That's not what I'm talking about at all -- and that problem is readily solvable without abusing copyright, by using the specific tool that was designed to address this issue of consumer confusion: trademark.

                        What I'm talking about is someone writing a story using the setting and characters of the Twilight universe, not someone engaging in fraud by claiming their story is the "latest book in the series".

                        A good example would be The Wizard of Oz books. There are a number of books written using the characters and setting of the Wizard of Oz that aren't part of the series. Nobody is confused by this, nobody counts these books as "canon", and the existence of these books do not detract from the originals (despite, in at least a couple of cases, being superior to the originals). In fact, my daughter read the originals because she read the non-canon "A Barnstormer in Oz" by Philip Jose Farmer and it got her interested in them.

                         

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                          Anonymous Coward, Sep 17th, 2013 @ 11:51am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          That's not what I'm talking about at all -- and that problem is readily solvable without abusing copyright, by using the specific tool that was designed to address this issue of consumer confusion: trademark.


                          The thing is, right now the current implementation of copyright provides protections against that sort of abuse, often stronger protections than trademark does. You have yet to make a compelling argument as to why it would benefit authors to remove that existing protection, and force them to go to trademarks in addition to copyrights to obtain what is at best the same protection. I say at best because trademark generally has provisions about needing to use it or lose it, which can be rather vague in application.

                          What I'm talking about is someone writing a story using the setting and characters of the Twilight universe, not someone engaging in fraud by claiming their story is the "latest book in the series".

                          A good example would be The Wizard of Oz books. There are a number of books written using the characters and setting of the Wizard of Oz that aren't part of the series. Nobody is confused by this, nobody counts these books as "canon", and the existence of these books do not detract from the originals (despite, in at least a couple of cases, being superior to the originals). In fact, my daughter read the originals because she read the non-canon "A Barnstormer in Oz" by Philip Jose Farmer and it got her interested in them.


                          What you're talking about there isn't particularly applicable to your argument that material should immediately be in the public domain. The original Wizard of Oz book is in the public domain, and the original author long dead. That's why it has the derivative works you speak of. It's actually quite comparable to the current situation with Sherlock Holmes. It's a public domain work, those derivative works you speak of your daughter reading do not harm the original author because he's already dead, much the way the various derivative works of Sherlock Holmes do not harm Arthur Conan Doyle because he's already dead.

                          The key thing there being that the original author's are dead. They cannot be harmed by derivative works because they're resting in a grave. That does not speak to how living authors attempting to publish new works would fair.

                           

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                            nasch (profile), Sep 17th, 2013 @ 12:29pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            You have yet to make a compelling argument as to why it would benefit authors to remove that existing protection, and force them to go to trademarks in addition to copyrights to obtain what is at best the same protection.

                            The correct question to ask is whether it would benefit the public, not authors. Copyright (ostensibly) exists to further the public good, not to enrich or protect creators.

                             

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                              Anonymous Coward, Sep 17th, 2013 @ 5:42pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              The correct question to ask is whether it would benefit the public, not authors. Copyright (ostensibly) exists to further the public good, not to enrich or protect creators.


                              It furthers the public good by ensuring that authors have exclusive rights to their work for a limited time, so that they will be sure to reap the benefits of successful works, thus encouraging people to make said works in the first place. Laws and courts have long held that those exclusive rights includes non-parody derivative works which is a pretty natural outgrowth of protecting parts of the works.

                              The problem is not the exclusive rights being granted, but that the length of that exclusivity has been extended to ridiculous lengths, and that copyright is increasingly transfered from individuals to corporations that had no role in the creation of the work.

                               

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        Anonymous Coward, Sep 16th, 2013 @ 11:23am

        Re: Re:

        Just imaging someone deciding the next Game of Thrones book was taking too long to come out, and writing and publishing their own continuation.


        ...and all of the events of the Red Wedding were just a dream.

         

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    Shaun Wilson (profile), Sep 16th, 2013 @ 9:41am

    Derivative works

    If ongoing works by the original creator of a character are not derivative works then neither are works created by other authors using those characters. Therefore these (non)derivative works can't be blocked by copyright - you can't have it both ways.

     

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      jupiterkansas (profile), Sep 16th, 2013 @ 9:53am

      Re: Derivative works

      It stems from the concept that great art is created by a singular genius working in a cultural vacuum. They give their art to the world and world is expected to lap it up and await the next creative genius with a new, wholly original idea.

      With this view, any attempts to create something that references prior work in any way is simply a hack job not worthy of discussion. Conan Doyle is therefore the only person that can write about Sherlock Holmes (a creation of pure genius), and he's been dead for 83 years.

      At this point, I'd love to see a list of all the things that Conan Doyle stole his ideas from.

       

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      Bergman (profile), Sep 20th, 2013 @ 10:17am

      Re: Derivative works

      Exactly right.

      Supposedly those ten non-linear short stories give Holmes skills he didn't acquire in earlier books retroactively. But what if you wrote a a fanfiction where he travels to the 24th and a half century, meets Duck Dodgers and acquires those skills in that future?

      Suddenly, you have a Holmes who is NOT derivative of the ACD version (according to the Estate) who is also not covered by the copyright on those ten short stories. Oops.

       

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    mmrtnt (profile), Sep 16th, 2013 @ 9:47am

    There are Limits

    At least they're not complaining about Papa Doyle, or 'Conan'

     

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    Anonymous Coward, Sep 16th, 2013 @ 10:24am

    I guess the Doyle estate

    is trying to employ a literary version of evergreening done by pharmaceutical companies?

    Of course, if that's true, it basically presents a way to make copyright on characters perpetual. You just need to have someone continue to release new works that have some minor change to the character, and they get to pretend you have a new starting point for the public domain ticker. That can't be what the law intended.

     

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    stryx, Sep 16th, 2013 @ 10:29am

    The Estate is just worried that anyone doing further work on the Holmes character will discover the shocking truth about the events that led to Sherlock's extensive drug abuse and Mycroft's involvement in arms dealing and human trafficking.

    We need someone from Jurisfiction to look into this. Thursday Next would be a good choice.

     

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    Chris Brand, Sep 16th, 2013 @ 10:36am

    Surely this is very simple

    If the estate's argument is that the character changed, then clearly it wasn't "fixed", and so it isn't subject to copyright at all.

     

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    Anonymous Coward, Sep 16th, 2013 @ 10:39am

    To be honest, I am usually against retarded copyright, but most of these offshoots of Holmes stories just go too far and are themselves retarded and terrible. Of course copyright may not be the way to resolve the problem, maybe challenging the new authors/directors to duels of honor...

     

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    Jennifer Pillow-Taylor, Sep 16th, 2013 @ 11:10am

    Too late

    IT HAS.

    They're complaining now? Holmes has been in kids' books, teamed up with Batman more than once, been in dozens of cartoons and several movies, and fought the Phantom of the Opera. I wouldn't be surprised if one version knew kg fu.

     

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    MrPendent, Sep 16th, 2013 @ 11:19am

    I would love to see this reasoning applied to Dr. Who...

     

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    Travis, Sep 16th, 2013 @ 11:30am

    Holmes takes a dump

    Maybe I should write a story about Sherlock Holmes and the mystery case of diarrhea. Even if I get sued, I'm sure it'll be a laughable court case. I mean who doesn't laugh at wet farts and diarrhea?

     

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    Rick Smith (profile), Sep 16th, 2013 @ 12:39pm

    Maybe I understand less of the world than I though...

    Astoundingly, the filing suggests that the public domain clock only begins at the point where the "creation of the characters was complete."
    The Estate also rejects the (fairly compelling) argument that a character is created in the initial work, and future works fleshing out that character are simply derivative works off of the initial copyright.

    How can the characters be both incomplete and not a derivative from the first story.

    If they are incomplete then by all reasonable logic they have to be derived from the initial story.

    So if they are incomplete, then they are a derivative and there was existing case law pointed out to handle this.

    If they are not derivatives, then every story should be considered independent which means the older works are clearly no longer covered under copyright.

    I'm not a lawyer but seems to be if they want to use this argument they better pick which way they want to lose.

     

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    M. Alan Thomas II (profile), Sep 16th, 2013 @ 1:12pm

    If later works using the same characters aren't derivative of the first work, then wouldn't that mean that later works not written by Doyle aren't violating the estate's exclusive right in derivative works?

     

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    Anonymous Coward, Sep 16th, 2013 @ 1:58pm

    Am I the only one looking forward to erotic Sherlock Holmes fanfiction?

     

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    Anonymous Coward, Sep 16th, 2013 @ 6:51pm

    Simple solution

    The Holmes estate should sell their rights to Disney. Bam, perpetual protection.

     

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    Lawrence D'Oliveiro, Sep 16th, 2013 @ 6:51pm

    Conan Doyle Himself Did Not Try To Claim Ownership Of His Characters

    As I recall, other authors asked Conan Doyle, while he was alive, if they could write stories featuring Holmes and Watson, and he freely agreed. So for his estate to try to impose more restrictive policies seems contrary to the wishes of the man himself.

     

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    PaulT (profile), Sep 17th, 2013 @ 12:48am

    Sherlock Holmes? Isn't that the guy in modern day London who uses technology to solve crimes (Sherlock)? No, wait it's that Englishman in modern-day America (Elementary). Wait, no it's the drug addict who went to see Sigmund Freud for treatment in Vienna (The Seven Percent Solution). No, hang on it's the guy who fought Jack The Ripper (Murder By Decree). Actually, it's the actor hired by Dr. Watson to pretend to be a detective to stop people harassing him for his successes (Without A Clue). Or was he the guy who fought Cthulhu and his minions (Shadows Over Baker Street)?

    Really, *this* is the character they want to claim is endangered by multiple versions? A bit late aren't you?

     

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    Ron, Sep 17th, 2013 @ 1:24am

    Chapters?

    While I agree with that the entirety of Conan Doyle's Holmes Canon should now be in the public domain, how does the practice of publishing a work in a serial fashion (say, a chapter a month) work? Does each chapter fall in to the public domain in that same serial fashion, or does the entire work do so on whatever the appropriate anniversary of publication is?

     

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      nasch (profile), Sep 17th, 2013 @ 10:28am

      Re: Chapters?

      Does each chapter fall in to the public domain in that same serial fashion, or does the entire work do so on whatever the appropriate anniversary of publication is?

      The former.

       

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    Dr. Moriarty, Sep 17th, 2013 @ 1:10pm

    What happened to my take of the profits?

    After reading this tortuous article with questionable logic, I come to the conclusion that Sir Arthur was a shrewd business man and kept his solicitors even closer.

     

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    dkwilliams (profile), Sep 18th, 2013 @ 12:24pm

    The whole argument about "multiple personalities" is ridiculous. There are already multiple versions of Sherlock Holmes that were LICENSED BY THE ESTATE! RDJ's version of Sherlock is different from Basil Rathbone or William Gillette or Jeremy Brett or Benedict Cumberbatch - and I could go on.

     

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    Bergman (profile), Sep 20th, 2013 @ 10:24am

    Fracturing? They already are.

    By claiming the ten short stories are non-linear, they Estate has ALREADY given Holmes and Watson multiple personalities.

    If someone reads the public domain stories but not the later retcons, they would see a different Holmes and Watson than if they just read those short stories and not the main body of the works of Sir Arthur Conan Doyle.

    That also completely ignores the modern reimaginings of the characters...

     

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    Sheogorath (profile), Sep 23rd, 2013 @ 6:41am

    @ The Conan Doyle Estate

    Mr. Holmes and Dr. Watson (who are happily married and have children through the magic of mpreg) would like to respectfully refer you to the response given in Arkell v. Pressdram. This response is given further weight by the fact that those making it live in the UK, where the term of copyright is never greater than life+70, no matter who the legal copyright owner is.

     

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    identicon
    Samantha, Jan 16th, 2014 @ 3:10pm

    This page is super cool and I love ity!!!!!!!!!!1

     

    reply to this | link to this | view in chronology ]

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    Lexi, Jan 16th, 2014 @ 3:11pm

    this site is a good site to look up things about cases that are real

     

    reply to this | link to this | view in chronology ]


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