Once More, With Feeling: Sherlock Holmes Is In The Public Domain

from the elementary dept

Over the last few years, we've been covering the declaratory judgment lawsuit trying to establish that Sherlock Holmes is in the public domain. As explained, nearly all of the stories about Holmes were published prior to 1923, making them public domain in the US. However, there was one book with ten stories published after 1923, and those works are still covered by copyright, thanks to our nutty system of copyright extensions. Some Sherlock Holmes scholars/authors, Leslie Klinger and Laurie King, filed for declaratory judgment after the Sir Arthur Conan Doyle Estate threatened the publisher of their upcoming book (after successfully pressuring a previous publisher) that Sherlock Holmes is still covered by copyright and a license must be obtained. Klinger argued that he wasn't using anything from those works that were published post-1923.

While the Doyle Estate ignored the start of the case, after initially losing, it suddenly became interested arguing that the "character" of Holmes was not complete, and thus the new works somehow magically could extend backwards in time to keep the older versions out of copyright. Furthermore, it argued that in a world where Holmes is in the public domain, something horrible like others creating "multiple" versions of Holmes might happen (even though that's exactly what the public domain is supposed to enable). While there was some confusion, the judge didn't buy the Estate's argument, and found Holmes and his sidekick Dr. Watson to be in the public domain.

The Estate appealed, and got the unfortunate honor of having Judge Richard Posner handle the case, which he has done quite thoroughly, completely dismantling the Estate's arguments in affirming that Holmes and Watson belong to everyone, and not to the Estate. The key line:
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...
Posner notes that while the ten stories published after 1923 (it's not fair to call them "new") are derivative works of the original, and the only thing protectable in those are the "original elements added" in those later stories. Everything done before that is public domain.

Posner has little time for the Estate's wacky theory of how much "harm" would come from people actually making use of a Sherlock Holmes in the public domain, by accurately recognizing that it is the public domain that often inspires tremendous new creativity.
The estate offers the hypothetical example of a mural that is first sketched and only later completed by being carefully painted. If the sketch is allowed to enter the public domain, there to be improved by creative copiers, the mural artist will have a diminished incentive to perfect his mural. True; but other artists will have a greater incentive to improve it, or to create other works inspired by it, because they won’t have to pay a license fee to do so provided that the copyright on the original work has expired.
Posner also destroys the rationale of the Doyle Estate in which they have a made up concept of "flat" and "round" characters, where "round" characters are continually added to through newer and newer works, and the characters are never fully complete because of all that adding. Posner notes that this whole thing has nothing to do with copyright law:
The estate defines “flat” characters oddly, as ones completely and finally described in the first works in which they appear. Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us.
Posner further points out that, for all the talk that the Estate is worried about the harm of "new" versions of Holmes it doesn't like, in truth it seems clear that the Estate just wants to get paid. Finally, Posner notes that this appears to be an attempt to create a perpetual copyright, which violates the "limited times" aspect of the Constitution:
With the net effect on creativity of extending the copy-right protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would vio-late the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.
That seems like a rather useful line given the likelihood of a copyright term extension fight coming up in the next few years...

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jun 16th, 2014 @ 12:28pm

    "The estate offers the hypothetical example of a mural that is first sketched and only later completed by being carefully painted. If the sketch is allowed to enter the public domain, there to be improved by creative copiers, the mural artist will have a diminished incentive to perfect his mural."

    Um, how could it diminish his incentive? The thing that will diminish his incentive is that HE WILL BE DEAD BECAUSE IT WON'T ENTER PUBLIC DOMAIN UNTIL AFTER HE'S DEAD.

    The only way it would diminish the incentive to perfect the mural is if he's making a mural for his children's children, and is afraid that generations down his lineage (or hers), someone will make a better version of the mural from a sketch.
    What?

     

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  2.  
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    Michael, Jun 16th, 2014 @ 12:28pm

    The estate offers the hypothetical example of a mural that is first sketched and only later completed by being carefully painted. If the sketch is allowed to enter the public domain, there to be improved by creative copiers, the mural artist will have a diminished incentive to perfect his mural.

    I'd have to agree here. The artist will have been dead for like 100 years before his mural will be in the public domain - that artist isn't going to have much incentive to finish anything.

     

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  3.  
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    Michael, Jun 16th, 2014 @ 12:31pm

    Re:

    Wow - did we just create an example of simultaneous invention?

     

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  4.  
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    Michael, Jun 16th, 2014 @ 12:40pm

    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...

    it's elementary.

     

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  5.  
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    OldGeezer (profile), Jun 16th, 2014 @ 12:57pm

    Sad to think that almost no one will ever live to see any work created in their entire lifetime become public domain.

     

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  6.  
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    Richard (profile), Jun 16th, 2014 @ 12:59pm

    A world where

    Furthermore, it argued that in a world where Holmes is in the public domain, something horrible like others creating "multiple" versions of Holmes might happen

    That world already exists in the UK since Conan-Doyle died in 1930 and hence all his works have been in the public domain since 2000 - (in fact they originally went into the public domain in 1980 -only to be removed from is by the disgraceful hijacking of the Peter Pan - Great Ormond St. issue by the copyright lobby )

     

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  7.  
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    JWW (profile), Jun 16th, 2014 @ 1:00pm

    Dang

    Well the Doyle Estate failed to keep Sherlock Holmes out of the public domain.

    Next thing you know there will be a show on the BBC about him as well as a show on CBS. Horrifying.

     

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  8.  
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    GMacGuffin (profile), Jun 16th, 2014 @ 1:04pm

    Classic

    I just thought the word "classic" should be used in connection with Sherlock Holmes.

    Also, it's pretty classic that the Doyle family would be the ones who pulled this stunt. My understanding (from a special by the "Sherlock" creators) is that the Sherlock Holmes character has been reimagined and used more than any other (provably) fictional character in history, and that Arthur Conan Doyle gave his blessing to all sorts of plays and derivative works during his lifetime.

    Great character to try as a test case a century later.

     

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  9.  
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    Designerfx (profile), Jun 16th, 2014 @ 1:05pm

    Re: Re:

    I already patented and own copyright on the question "Wow - did we just create an example of simultaneous invention?"

    you owe me $100


    /s

     

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  10.  
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    jupiterkansas (profile), Jun 16th, 2014 @ 1:13pm

    Re:

    Copyright keeps lawyers employed, especially after the creator dies, when "the Estate" is usually managed by a lawyer. So lawyers have an incentive to write laws so that copyright terms last as long as possible.

     

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  11.  
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    DogBreath, Jun 16th, 2014 @ 1:20pm

    The only hope for the Doyle Estate now...

    is to sell the "after 1923" (Copyright has been altered. Pray we don't alter it any further) stories to Disney, so "The Mouse" (The REAL Mark of the Beast) can use its "magical powers" (bribes) to get the Berne Convention "modified and updated" (written out to say we want all your money, NOW!) for the "New Age" (Corporate Greed, Corporate Greed never changes) to retroactively increase copyright extensions (highway robbery on the public domain).




    Posner also destroys the rationale of the Doyle Estate in which they have a made up concept of "flat" and "round" characters, where "round" characters are continually added to through newer and newer works, and the characters are never fully complete because of all that adding.

    Really Doyle Estate? Rounded? That's Apple wheelhouse. Prepare to be sued.

     

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  12.  
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    Ima Fish (profile), Jun 16th, 2014 @ 1:25pm

    "and got the unfortunate honor of having Judge Richard Posner..."

    It must have been a sad day at the office when they found out that Posner was appointed.

     

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  13.  
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    Anonymous Coward, Jun 16th, 2014 @ 1:33pm

    The next copyright term limit fight will be epic

    I predict that the next copyright term limit fight, if (read: when) Disney decides to bring it will be epic. The last time, there was no internet to fight back against those extensions. Now, the internet is here and it has shown an eager willingness to push back hard against copyright overreach by the entertainment industry. The SOPA/PIPA/ACTA fights were just a taste.

    If Disney or some other pushes for and, more importantly, actually wins yet another absurd extension of copyright term length from corrupt politicians, I feel infringement will absolutely explode in retaliation.

    The entertainment industry better tread very lightly. I have no sympathy for them.

     

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  14.  
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    Nick (profile), Jun 16th, 2014 @ 1:33pm

    I think what we need to focus on is not whether particular books are in the public domain, but rather the concept itself of a British PI names Sherlock Holmes being in the public domain. A particular book may or may not be in the public domain depending on publication date, but that should have absolutely no relation to someone else making a different story involving the character.

    If we can establish that the general idea/concept of a character can't be copyrighted (or if it is, when it expires), we should then apply that to every single other icon we can find.

     

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  15.  
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    Anonymous Coward, Jun 16th, 2014 @ 1:53pm

    Re: Dang

    Just think what Disney could do with him, Baker Street mock-ups in their theme parks etc.

     

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  16.  
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    OldGeezer (profile), Jun 16th, 2014 @ 2:03pm

    Re: Re:

    That makes sense.

    I wonder what Martin Luther King would think of the greedy way his heirs are trying to monetize his speeches. Do you think he made any of them expecting to be paid for it?

     

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  17.  
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    cpt kangarooski, Jun 16th, 2014 @ 2:07pm

    Re:

    Nick--
    Well, the way that it's normally handled is that if a character is copyrightable at all, it is as part of the work which introduces the character. A character that consists of nothing but a name is really not protectable. But the more that the work describes them, the more they're fleshed out, the more protectable they become. But still, just as a part of the work which introduces them.

    Features of a character added in a later work will be copyrightable as part of that work. So if Doyle's very last Holmes story mentioned how he had a superfluous third nipple, and that work was still protected, it would be an aspect of the Holmes character which was not available for use by the public even when the older remainder of the character was.

    If it helps, try thinking of a movie: there are characters, images, music, a plot, etc. Extracting the music from the movie and reusing it for a different purpose would clearly be infringing, if the movie was copyrighted. Likewise, reusing some of the images (as was known to happen with special effects shots back in the day). Characters are really no different; they're a part of the story.

     

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  18.  
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    That One Guy (profile), Jun 16th, 2014 @ 2:16pm

    Re: Re: Re:

    I'd like to think that if he was alive today, and able to see just how his 'estate' was treating his words and speeches, namely wringing every last cent possible out of them, he'd be the first to publicly denounce their actions as nothing but greed driven parasitism.

     

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  19.  
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    Anonymous Coward, Jun 16th, 2014 @ 2:22pm

    The spectre of perpetual, or at least nearly perpetual, copyright


    Imagine if the Doyle estate had one. A neat little dirty trick they could pull would be to commission-- as a work-for-hire-- a writer to pen a new Holmes story. Then they would hold the copyright for another 90 years. Rinse and repeat ad infinitum.

     

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  20.  
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    OldGeezer (profile), Jun 16th, 2014 @ 2:29pm

    Re: Re: Re: Re:

    Yeah, I don't think he ever said "Shout it from the mountain top Let freedom ring, but you are going to have to pay my grandchildren until half way through the next century if you want to use my speeches!"

     

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  21.  
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    Roger Strong (profile), Jun 16th, 2014 @ 3:26pm

    the Estate's wacky theory

    "The estate isn't wacky, it's a high-functioning sociopath; do your research!"

     

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  22.  
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    Kronomex, Jun 16th, 2014 @ 3:59pm

    Does this mean that I don't have to put any more 10 cent pieces each time I say or think the words "Sherlock Holmes, Dr. Watson, and Moriarty" in the tin money boxes?

     

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  23.  
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    Anonymous Coward, Jun 16th, 2014 @ 4:41pm

    Re: The next copyright term limit fight will be epic

    It just means that the next copyright extension will be hidden in a fishery bill.

     

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  24.  
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    zip, Jun 16th, 2014 @ 6:56pm

    copyright or trademark?

    The Doyle estate seems to be arguing that a copyright grants automatic --and perpetual-- trademark status to the elements of a published story, an argument the judge knocks down flat.

    "The analogy would be to trademark dilution, see, e.g., Hyatt
    Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1157–59 (7th Cir.
    1984), as if a hot-dog stand advertised itself as “The Rolls-
    Royce Hot-Dog Stand.” No one would be confused as to
    origin—Rolls-Royce obviously would not be the owner. Its
    concern would be that its brand would be diminished by be-
    ing linked in people’s involuntary imagination to a hot-dog
    stand; when they thought “Rolls-Royce,” they would see the
    car and the hot-dog stand—an anomalous juxtaposition of
    high and low. There is no comparable doctrine of copyright
    law; parodies or burlesques of copyrighted works may or
    may not be deemed infringing, depending on circumstances,
    see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580–81
    and n. 14, 588, 591 (1994), but there is no copyright infringe-
    ment of a story or character that is not under copyright. "


    This could also be a reason why even the early cartoon shorts of Mickey Mouse from the 1920s will almost certainly never enter the public domain. The issue is not whether there is commercial value from ancient black-and-white cartoons -- but the fact that keeping all early works under perpetual copyright (through repeated copyright extension legislation) serves to strengthen Disney's trademark of the Mickey Mouse character itself.

     

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  25.  
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    cpt kangarooski, Jun 16th, 2014 @ 8:04pm

    Re: copyright or trademark?

    Yes, that's true, although I don't really see how you're finding it in the passage you quoted. The usual cases on this sort of thing are Kellogg v. National Biscuit for the basic scenario (there it involved patents and trademarks, but it works for copyrights too), and Dastar v. 20th Century Fox.

    Trademarks are inferior to copyrights and must reflect the facts on the ground. When a copyright enters the public domain, anyone can make and sell copies of the work, make new works based on the work, etc. This means that a mark pertaining to the work can no longer identify all such marked goods as sharing a common origin. Thus the trademark becomes generic.

    It might still survive for unrelated products: Peter Pan is a public domain character in the US, but there are valid trademarks for PETER PAN peanut butter, and PETER PAN bus lines. But Disney is clearly not going to settle for those Mickey Mouse ice cream bars as the consolation prize, while everyone else in the world starts using the mouse freely.

     

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  26.  
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    Bergman (profile), Jun 17th, 2014 @ 12:21am

    Re:

    Hey, what's wrong with creating an incentive to rise from your grave as a hideous undead abomination?

     

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  27.  
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    Rekrul, Jun 17th, 2014 @ 12:58am

    So, which court will the next, inevitable appeal be filed in?

     

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  28.  
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    Prashanth (profile), Jun 17th, 2014 @ 6:28am

    Small slip

    "to keep the older versions out of copyright"
    I think that should have been written as "to keep the older versions out of the public domain", unless I haven't fully woken up this morning.

     

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  29.  
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    x, Jun 17th, 2014 @ 6:32am

    I am going to create my own version of Sherlock Holmes...

    Where he is an alcoholic cay junkie who loves to butt-rape Dr. Watson.

    The state cannot stop me...he is in the public domain, so I can create my own version of Sherlock Holmes and if the estate does not like it, tough shit.

     

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  30.  
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    Anonymous Coward, Jun 17th, 2014 @ 7:43am

    In other news... Sir Arthur Conan Doyle refuses to write another Sherlock Holmes story.

     

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  31.  
    identicon
    Anonymous Coward, Jun 17th, 2014 @ 2:40pm

    Re: Re: Re:

    Unfortunately, he was involved in enforcing his copyrights in similar ways while he was alive. People don't tend to be "all good" or "all bad" -- they tend to pick their areas of focus. In the later part of his life, he was using copyright to provide income that he used to promote his public agenda.

    Now if only ALL his children were at least attempting to do THAT.

     

    reply to this | link to this | view in thread ]


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