Supreme Court Refuses To Hear Sherlock Holmes Case: Holmes Is Now (Mostly) Public Domain

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

This isn’t a huge surprise, but the Supreme Court has declined to hear the case concerning whether or not Sherlock Holmes is in the public domain. As many news sites are reporting, this more or less means that the character of Sherlock Holmes is considered public domain. It’s not quite that simple, of course. Technically, all but the last book of Sherlock Holmes works (covering a few stories) is in the public domain according to the 7th Circuit appeals court. That means the character attributes that are new in those last works are not in the public domain. Also, conceivably, a similar challenge in another circuit could lead to a different conclusion, which might lead the Supreme Court to eventually weigh in another time. But, for now, it’s mostly safe to assume that the basic character is in the public domain.

So, now, who’s going to create some awesome new Sherlock Holmes stories?

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Comments on “Supreme Court Refuses To Hear Sherlock Holmes Case: Holmes Is Now (Mostly) Public Domain”

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44 Comments
That One Guy (profile) says:

On paper vs In practice

But, for now, it’s mostly safe to assume that the basic character is in the public domain.

On paper perhaps, but in practice, what’s to stop the estate from going after someone who they claim is infringing on something from the last book with one of their creations? Keep in mind going to court, innocent or not, is prohibitively expensive, so even if someone was sure they would win, they might still be pressured to pay up or fold.

If Sherlock Holmes really is in the public domain, the estates’ entire purpose, and, more importantly, revenue stream, is gone, kaput. As a result, they have absolutely no reason to ever stop fighting this, and every reason to keep doing so.

cpt kangarooski says:

Re: On paper vs In practice

Well, in the US, they’d have to sue for infringement, and the victor in such a suit can obtain repayment of the fees and costs from the loser. This works even for a victorious defendant. And with precedents this strong, the likelihood of a defendant winning are pretty good. And then there are countersuits for things like tortious interference. And a lawyer would have a difficult time indeed of even representing the estate in the suit to begin with, due to the various responsibilities we have to not bring frivolous suits.

It wouldn’t be a big concern.

Anonymous Coward says:

Re: Re: On paper vs In practice

Unfortunately it is all to easy to use legal threats as a bullying tactic, up to and including issuing subpoenas without an intent to follow through. Consulting a lawyer, and getting them to reply to a threat costs money and time, and it is difficult to recover costs if the case never makes it to court, and not guaranteed if it does. This is what the trolls rely on, by asking for less that what it will cost to fight them.

Anonymous Coward says:

Re: On paper vs In practice

“…what’s to stop the estate from going after someone who they claim is infringing on something from the last book with one of their creations?”

Nothing, except they have to prove the infringing elements are particular to the last book ONLY.

For example, anyone can write about Watson’s first wife, or Watson meeting and courting someone after becoming a widower.
HOWEVER, they can’t mention his second wife, nor use her name as the woman he would be courting.
Got it?

Anonymous Coward says:

“So, now, who’s going to create some awesome new Sherlock Holmes stories?”

Maybe someone with the money to fight against a well-oiled legal machine. Perhaps Disney could easily pull it off. The sad part is that Disney has often taken public domain stories and essentially made them its own property, thereby discouraging anyone else (who is not equally deep pocketed) from sharing in the same *technically* public domain work that Disney now (and forever more) considers its own trademark. That’s why anyone of lesser means who wants to even get close to a 200-year-old long-since-out-of-copyright Brothers Grimm story had better tread very lightly.

http://www.slotstemple.com/wp-content/uploads/2014/08/miss-white-300×150.jpg

John Nemesh (profile) says:

Re: New Sherlock Holmes stories...

Maybe you should reference the Star Trek: TNG Episodes which featured Moriarty (and Data as Holmes). Or the CBS show “Elementary”, or the (ugh) Benedict Cumberbatch show…among MANY MANY others. What about “The Great Mouse Detective” from years back? Holmes has appeared NUMEROUS times over the past several years in film and television.

PRMan (profile) says:

Re: Re:

They can’t do anything about them, which is why when they sold Beauty and the Beast on DVD, there were 2 crappy ripoff versions right next to it to confuse Grandma into buying the wrong one.

There’s a reason why Disney’s latest fairy tales are named “Tangled” instead of “Rapunzel” and “Frozen” instead of “The Snow Queen”. The wannabes can’t put out their own versions and call them “Tangled” or “Frozen” because then it’s obvious they are copying.

Anonymous Coward says:

Why is Copyright so much longer than Patents?

Why is a copyright so much longer than a patent? The original purpose of copyright was to force works into the public domain. Copyright, in its barest form, has NOTHING to do with how artists get paid, who get royalties, etc.

I believe that copyright was originally 34 years, including one extension. Perhaps we should extend patents so that they both last the same time period.

Chris Brand says:

Re: Why is Copyright so much longer than Patents?

The basic answer is “because a patent is so much more restrictive”. In theory, a copyright only prevents literal copying of the expression, whereas a patent restricts any implementation of the idea, even if somebody came up with it independently.
Unfortunately, the courts aren’t very good at distinguishing ideas from expression.

Anonymous Coward says:

Re: Re: Why is Copyright so much longer than Patents?

“…whereas a patent restricts any implementation of the idea, even if somebody came up with it independently.”

Not quite.
patent restricts use of the technique/equipment/formula specifically-patented.
How many different can openers are there?
They all open cans, but they do it differently.

Anon says:

Precisely!

In the USA, land of litigants, recovering lawyers fees when you win is not that common. This is what drives their excessive litiginous society, there’s no downside to losing – especially if the lawyer works on commission (contingency). It’s also what makes trolling possible, even a slam-dunk case could cost tens of thousands, so it’s often cheaper to settle.

[from *Laverne and Shirley* ]

Annoyed boyfriend: “If I give you a quarter, will you go away?”

Iggy: “why would I go away from someone who’s giving me money?”

The 7th court only covers some of the area around Chicago. It’s a precedent there, only an optional guideline or related case in the rest of the USA. So the trick for the Doyles is to figure out which circuit court would be most sympathetic and file in that jurisdiction, hope to get a contrary ruling and leave it up to the Supreme Court to decide which circuit is right.

JeffJeremy (profile) says:

So, now, who’s going to create some awesome new Sherlock Holmes stories?
Well, I’m not going to blow my own horn and say that they are ‘awesome’, but I’ve written two Sherlock Holmes oneshots that you can read here, and I’ve been careful to state that they’re based on the books as opposed to any of the movies or TV series.
http://slotsspot.com/news/

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