Conan Doyle Estate Asks Supreme Court To Step In And Block Sherlock Holmes From Being Public Domain'd

from the a-curious-case dept

In February of last year, we wrote about author/lawyer Leslie Klinger suing the Conan Doyle Estate for demanding a license for his latest book about Sherlock Holmes. An earlier book that Klinger had published about Holmes had resulted in his publisher paying the estate a license, but Klinger felt he didn’t need such a license for the latest book. Nearly all of Sir Arthur Conan Doyle’s Sherlock Holmes works are in the public domain (published before 1923), but there is one remaining book of a bunch of stories called The Case-Book of Sherlock Holmes which was published after 1923 and is still in copyright. Klinger insists his own latest book would only pull from the public domain works, but the Doyle Estate made the amazing argument that it could effectively keep the characters of Holmes and Watson locked up forever by claiming that each new work added another layer to the character in an ongoing fashion, and the clock would start anew each time.

This reasoning got rejected quickly by the district court, and last month an appeals court ruled (strongly) against the estate, making it quite clear that the basic characters are very much in the public domain. As the court noted, the estate doesn’t get to make up copyright law the way it would like:

We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements?including characters covered by the expired copyright?become fair game for follow-on authors…

The court seems completely unpersuaded by the Conan Doyle Estate’s ridiculous fear that (*gasp*) if Holmes goes into the public domain, some people might create different versions of him. That’s actually kind of the point of the public domain. That’s what’s supposed to happen.

Well, wouldn’t you know it? The Conan Doyle Estate is not giving up, and appears poised to take this to the Supreme Court. It has started out by asking the Supreme Court to stay the appeals court ruling (basically blocking the publication of the book) until the estate can ask the Supreme Court to hear the full case. The estate’s argument is about as silly as you’d expect. Basically, it insists that because Klinger has not handed over his entire work, it can’t be declared to be non-infringing, and thus his publication should be blocked. The Estate is actually flipping the equation (without admitting it). It’s correct that to show infringement, you first would need to examine the work, but here it’s actually demanding that a negative be proven. It’s demanding that Klinger present his final work to prove that it doesn’t infringe. That’s silly. If Klinger’s final work does infringe, then the estate can bring it to court. The question Klinger’s original lawsuit addressed was more straightforward: so long as he relies on the public domain works as his source material, there shouldn’t be anything that infringes. And two courts have agreed with him.

Hopefully the Supreme Court rejects this, which would also likely mean that it will reject the eventual appeal from the estate as well. However, if Justice Kagan (who is handling these kinds of requests) decides to grant the stay, then we could be in for another round and another chance for the Supreme Court to dig in on copyright issues. Given its past record — especially on the public domain — this might be a dangerous thing.

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Comments on “Conan Doyle Estate Asks Supreme Court To Step In And Block Sherlock Holmes From Being Public Domain'd”

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39 Comments
That One Guy (profile) says:

Taking a chance to put it mildly

After reading that last link, yeah, having the SC rule on this would be like playing russian roulette with an unknown number of bullets in the chambers, and the barrel pointed at the public.

If the three cases discussed in that article are any indication, and unless their thinking has changed drastically since then, they would have no problem whatsoever agreeing with the Conan Doyle estate and their idea of ‘perpetual copyright’, and ruling accordingly.

BentFranklin (profile) says:

I had thought to put a story on Literotica showing Holmes and Watson engaging in all manner of sexual deviations because Fuck You Arthur Conan Doyle Estate. But fortunately I won’t have to because it’s already been done many times over:

http://search.literotica.com/search.php?type=story&q=sherlock&cid%5B%5D=&db=text&date_from=&date_to=newer&sort=relevancy&sort_order=desc&author=

Mason Wheeler (profile) says:

Re: Re:

The purpose of copyright was originally to rein in predatory publishers and limit what they could do without the consent of (or compensation to) the author. And from 1709 to the 1970s, it did a pretty good job of that, but then publishers started taking over, pushing a long string of abusive laws that culminated in the DMCA, which literally turns the intention of copyright on its head: the Statute of Anne was explicitly intended to prevent publishers from taking advantage of expensive modern technology (the printing press) to abuse people, while the DMCA is explicitly intended to enable them to take advantage of expensive modern technology (DRM) to do so.

Interestingly, the period from the passage of the Statute of Anne to the 1970s when the whole thing started falling apart is almost exactly the same amount of time that passed from the invention of the printing press to the point where it started getting abused so badly that copyright needed to be invented to fix the mess. Perhaps, when we get it fixed up this time, it’ll last for about 260 years before needing serious reform.

Anonymous Coward says:

Re: Re: Re:

The purpose of copyright was originally to rein in predatory publishers and limit what they could do without the consent of (or compensation to) the author.

The history leading up to the Statute of Anne shows that copyright as an authors right was political spin to restore control over the printing of individual books to publishers. A further indication of this is the near universal practice of publishers demanding copyright assignment as a prior condition to them publishing a work. Also an author has no recourse if the publisher refuse to keep a book in publication.

Mason Wheeler (profile) says:

Re: Re: Re: Re:

The history shows nothing of the sort. I don’t know where you heard this, but it’s a malicious lie, political spin by people who would like to do away with copyright altogether and take us back to the bad old days when publishers could screw authors at will, instead of fixing it and reining them in.

Anonymous Coward says:

Re: Re: Re:2 Re:

From the Wikipedia article

Prior to the statute’s enactment in 1710, copying restrictions were authorized by the Licensing of the Press Act 1662. These restrictions were enforced by the Stationers’ Company, a guild of printers given the exclusive power to print—and the responsibility to censor—literary works. The censorship administered under the Licensing Act led to public protest; as the act had to be renewed at two-year intervals, authors and others sought to prevent its reauthorisation.[1] In 1694, Parliament refused to renew the Licensing Act, ending the Stationers’ monopoly and press restrictions.[2]

Over the next 10 years the Stationers repeatedly advocated bills to re-authorize the old licensing system, but Parliament declined to enact them. Faced with this failure, the Stationers decided to emphasise the benefits of licensing to authors rather than publishers, and the Stationers succeeded in getting Parliament to consider a new bill.

Because publishers almost always insist on copyright assignment, copyright actually offers authors little protection, as the publisher decides how many copies are produced, and when, if ever, reprints are made. Those few authors who have made a fortune from their books have made their publishers even more profit. The usual advice to authors is to keep the day job, as making a living from royalties when going through a publisher is a rare occurrence.

Mason Wheeler (profile) says:

Re: Re: Re:3 Re:

Yes, because if someone puts something on Wikipedia, it must be true!

Have a look at a scholar who actually did some real research into the matter: http://copy.law.cam.ac.uk/cam/tools/request/showRecord?id=commentary_uk_1710

As much as certain parties like to try and pretend that copyright arose as an extension of the Stationers’ censorship regime, the truth is the exact opposite: copyright arouse out of its fall, because everyone (even Parliament) was sick of it. Every time the Stationers tried to get it replaced, they were roundly rejected, and what ended up getting put in place was completely different.

As for copyright assignment, a friend once told me he’d seen an interview with Orson Scott Card where he discussed the topic. I really wish I could find that now so I could quote it directly, but basically what Card said (according to the guy I heard this from) is that a lot of publishers attempt to get you to sign over your copyright under “work made for hire” doctrine, and that an author should never sign such a thing because he did not write that book under contract to the publisher, and therefore signing a legal document stating that he did is perjury, and it’s suborning perjury for the publisher to ask you to. (Even though they’ll never get prosecuted for it, of course.)

But that’s beside the point. You’re talking about the modern system, which as I pointed out in my original comment, has been urgently in need of reform since the 1970s.

Anonymous Coward says:

Re: Re: Re:4 Re:

As much as certain parties like to try and pretend that copyright arose as an extension of the Stationers’ censorship regime, the truth is the exact opposite: copyright arouse out of its fall,

Lets see, under the censorship regime, an author sold his manuscript to a publishers who then had total control over the work. Under copyright, an author sold his manuscript and the copyright to a publisher, who then had total control over the work. From the authors perspective, the status quo was restored after a period of 10 years without any publisher control over the printing of books. The statute of Anne was not an extension of the censorship scheme, but rather a replacement, which had one difference the publishers have been trying to rectify ever since, the limited term of copyright.

Anonymous Coward says:

“We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors…”

And yet the number of years for expiration for copyright to enter public domain will no doubt be extended once again when Disney decides not to let Mickey Mouse go into public domain. So if Disney were told the same above quote they too no doubt will go running to The Supreme Court to get an extention on copyright to keep Mickey Mouse from the public domain.

David says:

The game is obvious

The Doyle Estate only needs to keep the copyright status in limbo until Mickey Mouse and Bugs Bunny get another copyright extension passed.

Every copyright that has not terminally and irrevocably passed into the Public Domain by that time will bounce back by a retroactive copyright extension into corporate ownership in order to encourage authors deceased more than 95 years ago to write new works.

It’s not like this has not happened a few times already in exactly this manner. Try writing a new story starring Mickey Mouse, a character that was slated at Walt Disney’s death to pass into Public Domain something like 25 years after its last registration extension.

Exactly that will happen with Sherlock Holmes if the Doyle Estate manages to keep this charade in limbo long enough.

At any rate, the verdict states

When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors…

and no story of any author dying after Walt Disney has ever passed into the Public Domain. Doyle died a bit earlier, so it is a bit of a song and dance routine to let Sherlock Holmes ride the coattails of Mickey Mouse into the land of everlasting copyright.

But like Eliah riding a fiery wagon into heaven has shown: if you’re really good, you don’t need to wait for the saviour of all, the Mouse among lions.

Anonymous Coward says:

Re: The game is obvious

“The Doyle Estate only needs to keep the copyright status in limbo until Mickey Mouse and Bugs Bunny get another copyright extension passed.”

This. They’re intentionally drawing things out for just this reason. They’re desperate to make sure Holmes isn’t declared in the public domain before then.

Anonymous Coward says:

To the contrary, an evolving character is more like a mural that is gradually painted publicly over time to include more and more dimensions and details. The artist’s copyright in the final work means very little if the public is free to copy earlier, unfinished versions.

How stupid. The public is NOT free to copy earlier, unfinished versions unless the copyright has expired on those versions. Copyright is life + 45 years, currently. In other words, everything the author created is going to enter the public domain at the same time – 45 years after his death. The exception is the pre-1923 stuff, and anything that’s anywhere near that old was created with an expectation of a rather short copyright.

But the countervailing policy is that under the Seventh Circuit’s rule, the original artist has a significantly diminished incentive to finish her mural. The same is true of dynamic characters.

Are they seriously arguing that all Sir Arthur Conan Doyle needs to continue developing Sherlock Holmes is the proper incentive? Or are they arguing this about a hypothetical mural artist whose copyright has expired because he’s been dead for over 45 years?

Roger Strong (profile) says:

Different versions....?

…if Holmes goes into the public domain, some people might create different versions of him.

Gosh. Just like the many different versions that existed regardless. Some set in the 1890s, to many set in then-contemporary times from post-WWII to present day to even a post-apocalypse science fiction Sherlock Holmes. There have been at least two movies where the 1890s Sherlock was unfrozen a century later to solve cases.

There have been comedies and parodies, including one (1988’s Without a Clue) where Holmes is an idiot actor, a front for Watson being the genius. There’s been at least one Young Sherlock Holmes movie. There’s been a VeggieTales Sherlock Holmes.

And of course even when staying “true to the books”, Holmes has been played very differently by everyone from Harry Arthur Saintsbury to Basil Rathbone to Robert Downey, Jr.

Richard (profile) says:

Expiration in the UK

All of Conan Doyle’s works are already in the public domain in the UK – and would be in the US apart from some very strange transitional arrangements put in place when the US transitioned from a “creation+N years” system to an “author’s death +N years system. I suggest that anyone who wants to create such derivative works can simply do it in the UK – and then wathc the Conan Doyle estate try to keep such works out of the US.

It seems to me that this lawsuit has one purpose only – to keep the Conan-Doyle estate going – since it will surely be wound up when everything enters the public domain.

Richard (profile) says:

Re: Re: Expiration in the UK

I’ll try and write something and publish it online for you, okay?

So is it just that US law trumps everything else – or is it that the longest copyright term in the world trumps all – in which case – under Mexican law – the whole of Conan-Doyle’s output remains in copyright until 2030,

Sheogorath (profile) says:

Re: Re: Re: Expiration in the UK

No. It’s simply that in the UK, copyright on Doyle’s Works ran out in 1980 (life + 50 under the Copyrght Act 1956), and in 1996, the Berne Convention’s Comparison of Terms was restored in the CDPA 1988. So we have to follow Spain’s life + 100 (I believe), but can completely ignore Mexico’s since it isn’t a member of the EU. Simples!

Richard (profile) says:

Re: Re: Re:2 Expiration in the UK

the Berne Convention’s Comparison of Terms was restored in the CDPA 1988. So we have to follow Spain’s life + 100 (I believe),

You believe wrongly. The comparison of terms is a rule of the shorter term – not the longer one so it cannot increase the term.

EU copyrights are now harmonised at 70 years pma (that includes Spain – I do not know where you got the 100 from) and that is what applies within any EU country for works originating within the EU.

PaulT (profile) says:

“The court seems completely unpersuaded by the Conan Doyle Estate’s ridiculous fear that (*gasp*) if Holmes goes into the public domain, some people might create different versions of him. That’s actually kind of the point of the public domain. That’s what’s supposed to happen.”

Not to mention that this has already happened, hundreds of times. The fact that *this* character is the centre of this kind of claim still astounds me.

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