NY Times Takes Up The Case Of Sherlock Holmes And The Lost Public Domain… But Gets It Wrong

from the we're-missing-some-clues-here dept

You may recall that last month we had an interesting discussion here over whether or not Sherlock Holmes was in the public domain. The answer was not entirely clear, because you get different answers from different people. However, it looks like the NY Times is on the case, and has a an article looking into the ownership of Sir Arthur Conan Doyle’s creation. Unfortunately, I believe the NY Times gets it wrong.

While the article does detail the amazingly convoluted history over who owned the copyrights (and the various disputes associated with those rights), it gets a bunch of things wrong and (oddly) never seems to talk to any copyright lawyers. While the article does note that Holmes is public domain in the UK, it makes a blanket statement that Holmes is still covered by copyright in the US:

Mr. Lellenberg said that Sherlock Holmes remains under copyright protection in the United States through 2023, and that any new properties involving the detective “definitely should” be licensed by the Conan Doyle estate.

Lellenberg would say that, because Lellenberg is the literary agent for the Arthur Conan Doyle estate, and wants you to believe that. But, as we discussed last time, it’s not true. All of the Sherlock Holmes books except one have now entered the public domain. And, yes, this creates quite a mess. But, in theory, anyone who created a work based solely on the public domain works, and which is not based on or derived from that last work, should, in fact, be legit without a license. That doesn’t mean that Lellenberg (or some of the others who claim rights over Holmes) wouldn’t sue, but it’s not correct to claim that Holmes is still completely covered by copyright. The fact that the vast majority of his books are very much in the public domain is a rather important fact — and totally ignored by the NY Times article.

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Comments on “NY Times Takes Up The Case Of Sherlock Holmes And The Lost Public Domain… But Gets It Wrong”

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44 Comments
Tim Roll-Pickering (user link) says:

The UK copyright history is not simple either.

When the first stories were written, copyright lasted either 42 years or until 7 years after the death of the author, whiever was longer. However the 1911 Act changed this to life of the author + 50 years and the change applied to works not yet in the public domain. Thus in 1980 all of Conan Doyle’s work entered the UK public domain.

From 1st January 1996 a European Union-wide change to copyright law was introduced with an extension to life of the author + 70 years; and controversially revived copyrights on works that had entered the public domain in the previous 20 years. Thus Conan Doyle’s works enjoyed protection once more until 2000.

Hulser (profile) says:

Re: Re:

If you asked a group of reasonably well-educated people to name some fundamental principles of a good judicial system, along with common answers like habeas corpus and double jeopardy, I bet one of the top answers would the grandfather clause. People just intuitively know that it’s unfair to change the rules of the game after the game has started. Some — maybe even most — aspects of copyright are quite complex, but this isn’t one of them.

How could the EU possibly think it was a good thing to make a book that was “owned” by the public one day suddenly owned by a private party the next? Mind boggling.

Tim Roll-Pickering (user link) says:

Re: Re: Re:

My vague recollection is that the EU was aiming to harmonise the copyright period across all the (then) fifteen member countries – perhaps they thought it was easier to impose a blanket 70 year rule rather than have a situation continuing where works were copyright in one part of the common market/free trade area and public domain in another, making for uneven competition.

IP Lawyer says:

Actually, that is not correct. This is a case of copyright over a character, not copyright over a plot.

Character copyrights are very complex creatures. In order to get a copyright over a character, the elements of the character have to be original enough and distinguishable from stock characters as to make them unique. For instance, a pipe smoking, funny hat wearing, neurotic, cocaine and heroine addled detective who lives at 221B is probably at this level.

What makes this interesting, however, is that the character’s characteristics must be analyzed over the corpus of the works as a whole, and it is definitely unclear as to whether the existence of a single book, still under copyright, “ratifies” the whole history of the works to be included in the corpus for analysis of the character, or if the analysis of unique characteristics must be performed for that copyrighted work specifically. In fact, when we covered copyrighting characters in my copyrights class, Sherlock Holmes was actually named specifically as an excellent example of a very unique character with characteristics developed over a large, easily recognizable corpus of works.

The modern cases we used to examine characters, for reference, are Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., 900 F. Supp. 1287 (C.D. Cal. 1995), about a commercial, produced by Honda, that infringed on the James Bond character, and Titan Sports v. Turner Broadcasting Systems, (981 F. Supp. 65), which is about ownership of a WWF character.

The reason the issue is thorny is because termination of copyrights is actually a rather complex area of law, and one glossed over in most law school classes, mostly because it is extremely boring, very technical, and rarely at issue.

http://wrestlingperspective.com/legal/titantbs.html

So, in summary, the touchstone is whether the entire corpus of works can be included in determining the characteristics of Sherlock Holmes, or merely the one that is under copyright. After that issue is settled, it is still entirely possible that the one Holmes book still under copyright could form a sufficient basis for copyright over the character, which would require licensing.

For the record, I am against copyrights lasting beyond the life of the artist. It is perverse and absurd, and in no way actually promotes the progress of the arts and science, as required by the constitution.

Mike C. (profile) says:

Re: Just.... wow.

As has been said here on Techdirt before, there is obviously something wrong with copyright.

While I can sort of understand all the twists and turns you present in your post, I think it’s a shame that copyright has come so far from it’s base intent that someone would have to go through all of that just to find out if it’s okay to write a Sherlock Holmes story.

In a wierd way, I almost hope things continue to spiral out of control like this so as to hasten the eventual collapse of the whole system so we can rebuild it from scratch.

Mike Masnick (profile) says:

Re: Re:

Character copyrights are very complex creatures. In order to get a copyright over a character, the elements of the character have to be original enough and distinguishable from stock characters as to make them unique. For instance, a pipe smoking, funny hat wearing, neurotic, cocaine and heroine addled detective who lives at 221B is probably at this level.

Hence the recent ruling over Superman that allows some of his characteristics to be owned by one group of people, and others owned by another…

But the fact that the NY Times failed to mention that the books were in the public domain seems like a pretty big omission.

What makes this interesting, however, is that the character’s characteristics must be analyzed over the corpus of the works as a whole, and it is definitely unclear as to whether the existence of a single book, still under copyright, “ratifies” the whole history of the works to be included in the corpus for analysis of the character, or if the analysis of unique characteristics must be performed for that copyrighted work specifically. In fact, when we covered copyrighting characters in my copyrights class, Sherlock Holmes was actually named specifically as an excellent example of a very unique character with characteristics developed over a large, easily recognizable corpus of works.

See? Now that would have been an interesting point for the NY Times article to make. I wish they had spoken to you! 🙂

Of course, given the way Disney has pushed to extend copyright to keep Steamboat Willie from hitting the public domain, it sounds like Disney isn’t convinced that Mickey Mouse remains covered by copyright once the first bit hits the public domain.

IP Lawyer says:

Re: Re: Re:

Thanks!

What surprises me is that the Times MUST have lawyers familiar with copyright on staff, and it sort of bewilders me as to why they wouldn’t — apparently — even bother to ask one of them. Of course, it may be that they are copyright maximalists anyway, and would not have made this assertion.

I think, based on the fact that the vast majority of Holmes works are in the public domain, there is probably a pretty good argument for his character being in public domain, as long as it is not the plot of that one copyrighted book, but who knows how a court would actually rule.

Keep up the good work! Love the site.

Tim Roll-Pickering (user link) says:

Re: Re: Re:

It’s fashionable to claim the current US term is entirely driven by Disney when much of the reason was in fact a reaction to the EU harmonising its own copyrights and extending the term in many countries. (That’s not to say that Disney or for that matter almost the entire production and publishing industry weren’t supportive of the measure, but there was much more to it than keeping old Mickey Mouse cartoons in copyright.) Copyright law is an area where Europe rather than the US tends to set the international trends, and with a lot of other countries potentially following the EU’s lead the US would have been caught out. For several decades the US has been steadily conforming to various international conventions in IP law, not least because of the need for strong reciprocal protections and the growing importance of both the international market, where the rule of the shorter term often applies, and the greater opportunity to exploit back catalogues of older productions.

In fact if Congress had been solely Disney driven they could have gone a step further and directly converted all copyrights to a “life of the author + 70 years” (with the exception of “publication + 95 years” for works that otherwise lapse earlier). If I understand EU film copyrights correctly, Steamboat Willie would not enter the public domain in the EU until 2059 (life of last principal creator – the composer – + 70 years).

One other key point is that a lot of media companies take a cautious approach to intellectual property. They might be able to defend more in court, but often opt to avoid the risk of having to do so. Disney might well be able to argue protection of Mickey Mouse based on the overall corpus even when Steamboat Willie is in the public domain, and internally they may be convinced they have a case, but it’s better to be safe than sorry and have the maximum possible protection.

Hulser (profile) says:

Re: Re:

For the record, I am against copyrights lasting beyond the life of the artist. It is perverse and absurd, and in no way actually promotes the progress of the arts and science, as required by the constitution.

To use your phrasing, “Actually, that is not correct.” The reason that extending copyright beyond the life of the artist “promotes the progress” is because the net present value of their copyrighted work is greater under this scheme because they have longer to recoup their investment and it’s less risky. For example, if I write a book about my experiences as a heroin addict who has constant unprotected sex with prosititues and want to sell the rights to a publisher, how much do you think they’re going to give me if they know that as soon as I kick the bucket, that the content of all the books they manufactured, distributed, and promoted will suddenly fall into the public domain?

To the extent that copyright itself makes any sense, the “beyond the life of the artist” clause makes sense too. It promotes the progress by providing a more definitive net present value to copyrighted work, thus incentivizing the creation of new copyright works.

Note that the above is not a justification for extending the duration of copyright after the fact. When a publisher purchases the rights of a book, the price is based on the NPV calculation at the time of the purchase. Changing it after the fact is a flat out corruption of the system which serves only to line the pockets of the publishers.

vivaelamor (profile) says:

Re: Re: Re:

Good catch. As another poster has already pointed out, the original US copyright law avoided this issue. I think perhaps what the OP meant to refer to was the Mark Twain influenced copyright that was more recently introduced.

To quote the man: “I am interested particularly and especially in the part of the bill which concerns my trade. I like that extension of copyright life to the author’s life and fifty years afterward. I think that would satisfy any reasonable author, because it would take care of his children. Let the grand-children take care of themselves. That would take care of my daughters, and after that I am not particular. I shall then have long been out of this struggle, independent of it, indifferent to it.”

At first glance you could almost believe he was joking but the rest of the speech cements his folly completely. His arguments seem to boil down to ‘I can make money off the fruits of my labour therefore it is property and should be a perpetual asset’. Talk about a man who wanted to have his cake and eat it. Quite frankly I’d rather do without any of Mark Twain’s work, talented and sometimes insightful as he was, than deal with his influence on copyright.

Tim Roll-Pickering (user link) says:

Re: Re: Re: Re:

One point that has changed since Twain’s time is that life expectencies are now longer – indeed Conan Doyle’s youngest daughter, Jean, is almost the definitive example for the argument for extending the term to 70 years as she lived for 67 years after her father’s death.

Some on this thread have suggested that an author’s children should be left to fend for themselves after death, but would you deny them all inheritances?

fred flintstone says:

this is progress?

when a kid in basement gets an idea but cant do nothing with it cause hes poor thats progress?

when a kid with a min wage job gets an idea and cant do nothing with it cause of the expensive lisence fee thats progress?

when a kid with a factory job gets an idea and STILL cant do nothing cause of the expensive license thats progress?

when your now 90years old and have an idea and cant do nothing with it cause of the license fees thats progress?

when you pass the idea to your kid in secret and he still cant afford the license fee and passes to his grandson and finally he can do somehting with it thats progress?

YOU MAKE ME SICK talking shit about terms past 12years

gojomo (profile) says:

NPV and lifetime of artist

Regarding Hulser’s NPV point (#12): I think this same analysis suggests that for fairness to the aged and sick, and from the viewpoint of those benefitting from “the progress of the arts”, copyright terms should be oblivious to the lifetime of the artist.

If two authors create identically compelling works, but one author is on his deathbed, and the other young and healthy, why should it be economic policy to boost the NPV of the younger artists’ work by granting it a longer copyright term?

The founders’ conception of copyright had this feature — a fixed, easily-understandable term anchored on the act-of-creation — but it’s been lost over the years.

nationwide (profile) says:

holmes copyright

OK, this is a complex matter. A few weeks back I saw a guy perform one of the old Sherlock Holmes radio plays. He was good. Afterwards I went up to him and asked him about how much he’d paid (copyright fee) to put the show on. He stared at me blankly.
Now, I know the radio shows are in the public domain, how does public performance stand here? Is there a simple answer? I guess if we knew how much Warners paid up for the movie that would help.

Neal (user link) says:

Extending the canon

I have a personal interest in this, because I just wrote a Sherlock Holmes story. It started out as a bit of self entertainment, as I am a huge Holmes fan; but has grown large and interesting. it has a pretty inctricate plot, and has grown to about 70.000 words, nearly big enough to quallify as a novel. Let’s presume that I want to sell it someday, or try to get it published. Can I? Do I need permission of A Conan Doyle’s great grandniece, or the grandson of his second cousin to use this character in a story I have written?

tonyk (profile) says:

Re: Extending the canon

Because one Sherlock Holmes book is still in copyright in the U.S. it is just conceivable that the Conan Doyle “estate” has a proprietary common law trademark claim to the characters in the book, but it would have to be tested in the U.S. courts. As a previous federal trademark claim has already been rejected, a common law claim probably would not succeed. In any event, all this hoo-ha only concerns the United States. In all other countries of the world, the Holmes oevres are in the public domain. As to the trademark/service mark question, I seriously doubt whether anyone would attempt a claim in any court outside the U.S.
So, in answer to your question, publish and be damned! You could always add the words “Not For Sale In The USA” – a meaningless bit of nonsense, but something that might protect you in the event that the Conan Doyle heirs get their wicked way in the U.S. courts.

Trojan says:

New Evidence says, "Sherlock Holmes is public domain"

Since some of the Arthur Conan Doyle The Memoirs of Sherlock holmes means that Sherlock holmes is public domain worldwide.

http://en.wikipedia.org/wiki/The_Memoirs_of_Sherlock_Holmes

http://en.wikisource.org/wiki/The_Memoirs_of_Sherlock_Holmes

Breif Copyright Law for all countries that copyright laws
internet address is listed below.

http://en.wikipedia.org/wiki/List_of_countries'_copyright_length

I am not sure if there has been any copyright restorations.

For example Universal During the battles, Universal discovered that the copyright of the Lovelace novelization had expired without renewal, thus making the King Kong story a public domain one. Universal argued that they should be able to make a movie based on the novel without infringing on anyone’s copyright because the characters in the story were in the public domain within the context of the public domain story.

Afour-day bench trial in Los Angeles, Judge Manuel Real made the final decision and gave his verdict on November 24, 1976, affirming that the King Kong novelization and serialization were indeed in the public domain and and Universal could make its movie as long as it didn’t infringe on original elements in the 1933 RKO film which had not passed into public domain.

This judge is right because not everything that Sherlock holmes in in public domain but that does not make Sherlock Holmes protected by copyright.

The Universal King Kong Movie Remake Case can be used if anybody ever attempted to prove that Sherlock holmes is actually in the public domain.

Galava (profile) says:

Extending the canon

In the UK the situation is there may be no copyright protection on the Sherlock Holmes books, but what there is, and it’s a biggie! is TRADEMARK protection on named characters.

Checking the UK’s IPO (Trademark Office) database reveals that Europe-wide trademarks were taken out on the characters of Sherlock Holmes, Doctor Watson, Mrs. Hudson, Professor Challenger, Brigadier Gerard and the Hound of the Baskervilles by the Sir Arthur Conan Doyle Literary Estate in 2000.

According to a UK trademark lawyer, this means that no-one can legally use those characters in Europe without a licence from the trademark owner whilst those trademarks are still in force, which they are.

To breach this trademark protection, at least in the UK, is a criminal offence and the offender can be prosecuted under the UK’s Trade Marks Act 1994, and section 92 says that the offence carries a minimum 6 month in jail and a ?5000 fine!

Is it any wonder that we steer clear of the issue here in Europe?

Trojan says:

Heirs only one image of Sherlock Holmes

Actually Mrs. Plunket claims to rights in the Sherlock Holmes stories have been repeatedly rejected in U.S. federal court decisions (including Plunket v. Doyle, No. 99-11006, Southern District of New York, February 22, 2001; Pannonia Farms Inc. v. ReMax International and Jon Lellenberg, No. 01-1697, District of Columbia, March 21, 2005).

http://www.sherlockian.net/acd/copyright.html

This means that she owns only the image of Sherlock Holmes.

She has also filed a claim to the name ?Sherlock Holmes? as a United States trademark, and it too has been turned down

http://www.hecklerspray.com/the-longest-ever-episode-of-jonathan-creek-may-not-get-a-sequel/201042677.php

You would have to prove to a federal judge that you can use the image of Sherlock Holmes without a license by taking him from a public domain picture that was published in The Strand Magazine before 1923.

The Heirs only knew that they owned the image of Sherlock Holmes but they still put the following information listed below on the webpage which is listed below.

http://www.sherlockholmesonline.org/LicensingInfo/index.htm

The characters created by Sir Arthur Conan Doyle: Sherlock Holmes, Doctor Watson, Mrs. Hudson, Professor Challenger, Brigadier Gerard and the Hound of the Baskervilles among others are trademarked by the Sir Arthur Conan Doyle Literary Estate.

Use of any character or any book not in the public domain for any purpose whatsoever is prohibited without a license from the Sir Arthur Conan Doyle Literary Estate.

There could be some possible civil suits since they only had to pay for the image of Sherlock Holmes

Dr. Watson made his last appearance in a public domain story

Trojan says:

Majority Sherlock Holmes Pictures Public Domain

Since there has been no termination to The Sherlock Holmes Strand Magazine were illustrations of Sherlock Holmes the majority of Sherlock Holmes The Pictures are public domain.

UK Copyright Law
If the work was first published in another country and then later published in theUnited States, the copyright laws of the first country apply (author?s life +
70 years in many cases).

The Strand Magazine was published in the United States in 1998
http://www.examiner.com/mystery-series-in-national/hercule-poirot-steps-out-from-behind-the-curtain-new-strand-magazine-short-story

This means that we have to wait 70 years after the death of each of UK Illustrators dies before Sherlock Holmes is completely public domain.

Trojan says:

New Evidence shows all Sherlock Holmes stories are in public domain.

We all know that Sir Arthur Doyle died on 1930

UK Copyright Law
If the work was first published in another country and then later published in theUnited States, the copyright laws of the first country apply (author?s life +
70 years in many cases).

Since all of the stories of Sherlock Holmes are public domain in UK since 2000 they have been also public domain in the United States since 2000

Tim Roll-Pickering (user link) says:

Re: New Evidence shows all Sherlock Holmes stories are in public domain.

@Trojan The key word in what you wrote is “later” which is wrong. The later Holmes stories (at least) were published simultaneously in both the UK and US and thus enjoy the protection of other works published in the US at the same time.

There are some cases where works are still under copyright in the UK but not the US. The early works of H.G. Wells (died 1946) like the Time Machine and the War of the Worlds were written in the 1890s and have been in the US public domain for decades but won’t come into the UK public domain until 2017.

The big confusion in a lot of the talk of copyrights is the assumption that the copyright term for works created now also applies to older works. That’s true in the UK but in the US it’s very different – works published before 1978 are subject to “so many years since publication” (with all the formal renewal requirements).

Trojan says:

Sherlock Holmes Stories will become public domain before 2023 if rule of shorter term is adopted

I am sorry for the confusion but unless US adopts Shorter Term for their copyright law Sherlock Holmes will be public domain when it is currently to be scheduled under U.S. Copyright.

If you want the Sherlock Holmes Copyright to be public domain then write to your U.S. Congress person that represents you and tell them since alot of countries use the rule of shorter term the U.S. should also and that E.U. uses rule of shorter of term.

http://meta.wikimedia.org/wiki/American_non-acceptance_of_the_rule_of_the_shorter_term

holophone@yahoo.com says:

Sherlock Holmes comic character in the Public Domain

comics and characters, a bunch of companies went out of business in the Golden Age (Nedor, Fox Features, Lev Gleason, Columbia, etc.) and their copyrights were either never filed or never renewed. Those stories and characters are now Public Domain

http://www.dynamiteentertainment.com/boards/showthread.php?t=1731

Listed below in an internet of the first Sherlock Holmes newspaper strip and http://www.internationalhero.co.uk/h/holmes.htm
comics that are out of business.

You can use The Sherlock Holmes Comic Character in cartoon form.

C?te d’Ivoire is the only place in the world that Sherlock Holmes is not public domain

Trojan says:

E.U. harmoninsing protecting Disney

It is true harmonising its own copyrights and extending the term in many countries.

But the countires that belong to the E.U. only required to increase their 50 years by 20 years.

The United States could of increased the 50 years to 70 years only but copyright owners sucessfully argued that adding 20 years to our copyright would harmonize with E.U.

This never happened

Trojan says:

rule of the shorter term and Sherlock Holmes

United States would never adopt a rule of the shorter term.

If they did this Sherlock Holmes we would not have to to 2023 assuming that there is not another copyright extension for Sherlock Holmes become public domain.

It is hard to believe that Sherlock Holmes name and all of the characters of Sherlock Holmes area actually trademarked and copyrighted.

When Sherlock Holmes becomes domain the estate can still say they own the trademarks.

I would assume that the Sherlock Holmes termination copyright would mean that they only own the image of Sherlock Holmes.

Sounds to me as though it’s contested and the literary estate is taking the widest possible interpretation of what their copyright covers, i.e. that it covers the characters and not just the final book

trojan says:

Doyle estate should only own image of Sherlock Holmes and rights and stories.

Doyle estate most likely only owns the image of Sherlock Holmes and the rights to license the stories to Sherlock Holmes that are still copyrighted.

For example the heirs can not purchase the Sherlock Holmes characters from the works that they own from Sherlock Holmes.

I believe the internet address listed below confirms my theory.

http://www.nytimes.com/2010/01/19/books/19sherlock.html

Jean never got the characters from Mr. Reynolds that were purchased by Nina.

The heirs of the american copyright can allow people to purchase the characters to the Sherlock Holmes stories that are copyrighted.

However the purchase rights to characters would be like exclusive rights.

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