Conan Doyle Estate Asks Supreme Court To Put Sherlock Holmes Back Under Copyright

from the the-case-of-the-missing-public-domain dept

For a while now, we’ve been following the lawsuit concerning whether or not Sherlock Holmes is in the public domain. Back in June the 7th Circuit appeals court ruled that Holmes was in the public domain, followed up by a more thorough slamming of the Sir Arthur Conan Doyle Estate in a follow-up ruling concerning rewarding attorneys’ fees. We saw some reporters claim that the case was now “over,” but that was clearly not true. The Estate had made it clear it intended to appeal, having already asked the Supreme Court to block the appeals court ruling from taking effect (a request that was quickly denied). But that was clearly the preamble to a request to the Supreme Court to hear the case.

That request has now come, with the Estate arguing that there are serious questions still in play. Specifically, the Doyle Estate raises three questions for a potential Supreme Court hearing. As a bit of background, the case was not directly started by the Estate, but rather author Leslie Klinger, who filed for declaratory judgment saying he wasn’t infringing since the character was in the public domain. In the past, Klinger’s publisher had felt pressured into taking out a license, and Klinger felt that this demand was unfair and unjust. The Estate tried to argue that even though all but one book of Holmes stories were published before 1923 (which puts them in the public domain), the fact that another book was published after 1923 with new facets to the character meant that the entirety of the character of Holmes (and Watson) were still covered by copyright. The argument was, more or less, that as long as the character is still “developing,” and not complete, the copyright clock can be kept ticking. The courts completely rejected this argument and pointed out that the public domain is the public domain.

However, the Estate is making one last go of it, with a two-pronged attempt to get the Supreme Court to reconsider:

  1. Whether it was reasonable to rule on the case prior to Klinger finishing his book. This is a bit of misdirection. The Estate argues that the case shouldn’t have been decided until Klinger finished his book since you can’t determine if something isn’t infringing if it hasn’t been produced yet. This question was easily dismissed by the courts because (1) the Estate had been agitating for a license already, and that had created publishing issues for Klinger and (2) the courts made it clear that they were just saying that the early works were in the public domain — and if Klinger’s eventual book infringed on anything from that final (still copyrighted) Holmes book, the Estate could bring a specific case on that issue.
  2. The big question: whether or not a “dynamically developing character” can continue to extend the clock on copyright. Here, the Doyle Estate claims that there’s a circuit split, in particular with a ruling from the 8th Circuit (which we covered here) concerning the Wizard of Oz (and people making t-shirts out of images from a movie poster that clearly was in the public domain). Admittedly, that was a terrible decision — effectively allowing some reclamation of the public domain by copyright law. If the Supreme Court takes this case, hopefully it will be to just smack down that 8th Circuit decision and bring it into compliance with the 7th Circuit’s point that things that were in the public domain stay in the public domain.

The Supreme Court is not always clear in indicating which cases it will take and which it will pass over, and I wouldn’t recommend betting in favor of the Court taking this case. Chances are it will pass. However, if it does take on the case, hopefully it will only be to protect and preserve the public domain.

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Comments on “Conan Doyle Estate Asks Supreme Court To Put Sherlock Holmes Back Under Copyright”

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31 Comments
Jason says:

Interestingly, until reading about the recent history of this case, I had never even known about the later (post-1923) Holmes stories. I do have a very, very faint recollection of “The Adventure of the Lion’s Mane”—possibly from a collection or some other kind of excerpt I may have come across in, I assume, high school—but until I looked up the complete list of canon I thought “His Last Bow” was the last Holmes story. Obviously, that would have to be because the collected editions I’ve read (or owned) are the public-domain stories alone.

I wonder what else I may have missed out on because of 70+ years of copyright keeping it off the shelves.

David Good (profile) says:

Re: later stories

The court has already ruled the later stories aren’t covered because they are considered derivative works, even though they were written by Doyle.

In other words, because Doyle used characters that were initially under copyright years before, the fact that he wrote those stories in 1923 doesn’t extend their copyright.

Anonymous Anonymous Coward says:

Re: Final Shelocks Holmes copyright ends when?

From Wikipedia:

Sir Arthur Ignatius Conan Doyle KGStJ, DL (22 May 1859 – 7 July 1930) was a British physician and writer who is most noted for his fictional stories about the …

So, 1930 + 70 is 2000.

What are they saying about public domain again?

Anonymous Coward says:

Re: Re: Final Shelocks Holmes copyright ends when?

Actually from the wikipedia page on copyright duration, it looks like it’s 95 years from publication. It is a work published prior to 1978.

The case focuses on when the duration of the copyright will run out on a character that has appeared in stories published over multiple decades (1887-1927).

The last two short story collections are as follows.

His Last Bow (published 1908-1917).
The Case-Book of Sherlock Holmes (published 1921-1927).

Famously “The Final Problem” was published in 1893. That was one where Conan Doyle tried to kill off his character. Didn’t work– the “Hound of the Baskerville” was published in 1901 and “The Adventure of the Empty House” in 1903.

I should check out my “complete” collection of these stories to see if it contains “Case Book”.

Anonymous Anonymous Coward says:

Re: Re: Re: Final Shelocks Holmes copyright ends when?

From your link:

“Works created in or after 1978 are extended copyright protection for a term defined in 17 U.S.C. § 302. With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.”


I don’t think Conan Doyle was either a corporation, nor was his work a ‘work for hire’. But I could be wrong about that, as I was not around at the time.

Niall (profile) says:

Re: Re: Re:3 Final Shelocks Holmes copyright ends when?

From Wiki:

Works published or registered before 1978 currently have a maximum copyright duration of 95 years from the date of publication, if copyright was renewed during the 28th year following publication[39] (such renewal was made automatic by the Copyright Renewal Act of 1992; prior to this the copyright would expire after 28 years if not renewed). The date of death of the author is not a factor in the copyright term of such works.

All copyrightable works published in the United States before 1923 are in the public domain;[40] works created before 1978 but not published until recently may be protected until 2047.[41] For works that received their copyright before 1978, a renewal had to be filed in the work’s 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain. With rare exceptions (such as very old works first published after 2002), no additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws.

So it looks like most of the stories will be long out of copyright, with the later ones heading to 2025 – assuming they had the 28-year extension added (which is likely with Conan Doyle). His date of death only influences the most likely latest date of stories that he wrote, although it would be interesting to see what would happen if an unpublished one was ‘found’ and published now, or if someone took an incomplete story and ‘finished’ it.

Anonymous Coward says:

the way the Supreme Court acts, nothing it does should surprise anyone! just because something is already in the Public Domain, doesn’t mean it will stay there, at least, not when this bunch gets involved. the only US court that is predictable is the one that gives the NSA and other security forces the right to do what the fuck they like to screw ordinary citizens, not just in the USA but everywhere! and lets face it, this is the one thing that badly needs to be stopped!!

nasch (profile) says:

Re: Re:

the way the Supreme Court acts, nothing it does should surprise anyone! just because something is already in the Public Domain, doesn’t mean it will stay there, at least, not when this bunch gets involved.

I agree, there’s no telling what wacky reasoning they could come up with to decide it’s OK to put public domain things back under copyright. They’re like other courts sometimes in making a decision based on how they think things should be and then finding a legal path to that decision, rather than following what the law says to a decision. It might be better if they didn’t take the case so only the 8th circuit has this bad precedent.

That Anonymous Coward (profile) says:

So a whole bunch of lawyers who are invested in 1 thing will pull out all the stops to keep that cash cow going.
When your business model sucks, you should not be able to avail yourself of the courts, laws, etc. to keep it going.
Doyle is not writing any new material, will not write any new material, and these entire case highlights the problem with treating it like real property that is supposed to pay in perpetuity someone at the expense of a shared culture that was one of the foundations of the concept of copyright.
For a limited time should mean less than a human lifespan.

Anonymous Coward says:

Positive outcomes?

One thing about this is that if their argument bears fruit, Disney and friends could use the same argument, thereby negating any reason for copyright as a whole to be extended.

This would mean that outside of Sherlock and Mickey Mouse, copyright would actually promote the arts and sciences like it was actually intended to.

And, of course, eventually in this climate, individual constructed personas would be revisited and sane minds would realise that keeping things under copyright purely to allow a rightsholder to continue to profit from an otherwise public domain work is silly, and that part would be reformed as well.

Our real issue is the fact that corporations are immortal, and can hold copyright. If someone can figure out how to deal with that, everything else would fall into place.

DogBreath says:

Re: Positive outcomes?

Our real issue is the fact that corporations are immortal, and can hold copyright. If someone can figure out how to deal with that, everything else would fall into place.

I would suggest taking out the immortal corporations with sunlight or a stake through the heart, but history shows they have an endless supply of sunshine that they blow up everyone else’s ass, and they have no heart to stake.

nasch (profile) says:

Re: Positive outcomes?

One thing about this is that if their argument bears fruit, Disney and friends could use the same argument, thereby negating any reason for copyright as a whole to be extended.

This would mean that outside of Sherlock and Mickey Mouse, copyright would actually promote the arts and sciences like it was actually intended to.

No, it would mean that all the media corporations would make sequels to public domain works and then claim copyright on the originals. Would it work? Probably not since they weren’t the original authors, but I don’t want them to have an incentive to try.

Nick (profile) says:

I think the problem needs to be looked at as whether the general idea of a character can be copyrighted, or the specific implementation of it. Basically, is the copyright on the specific books expired (leading to the ability for anyone to “copy” and print out their own copies with maybe slight changes in cover art and shapes), or has the copyright on the character itself expired.

If the latter, then this case is null, and anyone can make any stories they damned well please despite the fact that the original author made another book with it’s own copyright.

Niall (profile) says:

Re: Re:

I think elements added in later stories may be under protection for a few years still. So if in a later story Holmes admitted a liking to polka dot curtains, and you mentioned this in your ‘original’ Holmes story, the estate may have room to sue you, although probably only over that small element – and would be incredibly Disney, sorry, petty of them.

Anonymous Coward says:

Re: Re: Re:

“I think elements added in later stories may be under protection for a few years still.”

But only those elements added in the later stories.
For example, Dr Watson married and lost his wife in the first group of stories.
He remarried in the second batch.
So you can do a story involving Watson’s first wife, or his seeing someone after he became a widower, but you can’t mention his second wife (by name or not)…yet.

Binko Barnes (profile) says:

Sad world where copyright lasts longer than an average lifetime, everything cultural is owned and protected and nobody can build new work on top of previous work which was pretty much how human culture always worked until corporate interests took over and perverted the concept.

A return to rational, constitutional copyright would be something like 16 years only IF registered, with one 16 year extension.

Anon says:

Actually..

The argument is that the elements of stories no longer copyright are fair game for copying and embellishing, while elements introduced in the last story/stories are copyright still. Therefore, let’s say, you can use the character of Holmes. But some detail that only appears in the copyright material cannot be used.

So let’s say, if the fact he played the violin, or Dr. Watson being married, or the landlady’s name appeared only in those stories, you could not use that. (I know, they are earlier)

The estate is trying to say, because new details about Holmes emerged in the new stories, that covers the whole character and prevents others from using him.

Interesting, the more so with for example, Disney. What happens when some of Mickey’s early cartoons become public domain (should that ever even happen)? Can people then make new cartoons, but only with the really primitive-looking Steamboat Willie Mickey? How does this interact with Disney’s other secret weapon, trademark (which I understand, is not the case with Sherlock)?

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