Elementary My Dear Watson....It's Called The Public Domain... Or Is It?

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

Fletch writes "Here's an interesting little article on why Sherlock Holmes remains so popular. Of course it happens to come right before the new movie opens and I am just sure it is pure journalism even though CNN and Warner are owned by the same company. Though I do find it rather odd that they don't mention a small part of the reason why Holmes is still so popular is that he is in the public domain and new and varied stories are created about him daily. Yes, he has always been a widely loved fictional character but there are a great many characters with fan bases. Holmes has stretched his by being used in almost all genres and having been written by some of the most popular authors even today. People like Stephen King and Neil Gaiman have written Holmes short stories and will continue to because of his public domain status. Even TV shows have gotten into the act with House M.D. which is a thinly veiled Holmes knock off. I find it odd that the same companies who decry the public domain are more then happy to use it when it suits them."

Definitely an interesting point from Fletch, but there is some dispute over the state of Sherlock Holmes' copyright status. While the character is in the public domain in some countries, there's still at least one book in the US covered by copyright, The Case Book, and the legal representative of the estate of Sir Arthur Conan Doyle seems to suggest that this means the character itself is protected by copyright until 2023, though that doesn't seem correct to me. My understanding of other characters that have gone into the public domain is that when their first works enter the public domain, the characters themselves enter the public domain -- but only the aspects of their characters originally covered by copyright that were included in those works.

Of course, this is made even more complex because it's still something of an open question as to what, exactly, about a character is covered by copyright. It used to be believed that the characters themselves were not covered by copyright, since it was only the expression, not the "idea" that was covered. But, a variety of court rulings in the US have ruled in favor of the claim that characters themselves can be covered by copyright -- leading to highly questionable legal results like the recent banning of a book using an updated version of Holden Caufield, the protagonist of JD Salinger's Catcher in the Rye.

Not surprisingly, the estate who owns the copyrights tries to present the situation as saying that all uses require a license. But, then again, it's not like they're going to tell you what's in the public domain when it's in their best interest to claim that nothing is. Either way, it appears that the initial claim concerning the public domain isn't quite the case -- and I would bet that the studio that made this latest movie paid for a license to avoid a legal fight. Why they should have to -- especially given the fact that when the content was written there was no way for it still to be protected today under copyright law -- is a separate (but rather important) question.

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    PaulT (profile), 26 Dec 2009 @ 1:13am

    I used to watch the old Basil Rathbone movies on TV as a kid. I'm not sure if they were public domain back then (the 80s), but most of them are now available on archive.org for free, and I had the pleasure of legally checking them out again recently. I have bought several editions of Conan Doyle's original books over the years because they were cheap (£1 or £1.50 at a time when the average paperback was £5) due to their public domain status and I have free copies on my iPod.

    The character has been kept alive because he can be reused at will for TV and cinematic retellings of his stories, as well as interesting new adventures such as the Holmes vs Cthulthu compilation Shadows Over Baker Street or various videogame adventures. If the character was still completely tied up by copyright, many of these interesting departures probably wouldn't exist, and long-term interest in the character would be diminished.

    To all the copyright maximalists out there - public domain doesn't mean that you lose the right or ability to make money from a product or character. It just means you lose total monopoly control. If a work or character deserves long term popularity, there will always be ways to make money if you have some imagination. Overbearing copyright controls will stifle creative and financial opportunities in the future, the exact opposite of what copyright is meant to do.

    Oh, and I didn't realise that Nicholas Meyer had written 2 more Holmes adventures following his excellent Seven Per Cent Solution (where Holmes gets treatment from Sigmund Freud in Vienna for his cocaine addiction). Now I do after checking some details on Wikipedia, so I'll check them out!

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