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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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  1. icon
    Mike Masnick (profile), 20 Jan 2010 @ 10:43am

    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.

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