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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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  • icon
    That One Guy (profile), 3 Nov 2014 @ 7:41pm

    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.

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

    • identicon
      Anonymous Coward, 3 Nov 2014 @ 9:15pm

      Re: On paper vs In practice

      Ah, but this ruling only applies to the United States.

      International copyright law...well, that is anything but elementary.

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

    • icon
      G Thompson (profile), 3 Nov 2014 @ 10:07pm

      Re: On paper vs In practice

      Indubitably!

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

    • identicon
      cpt kangarooski, 3 Nov 2014 @ 10:25pm

      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.

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

      • identicon
        Anonymous Coward, 4 Nov 2014 @ 2:24am

        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.

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

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 6:07am

      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?

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

      • icon
        Dave Cortright (profile), 4 Nov 2014 @ 6:46am

        Re: Re: On paper vs In practice

        Not exactly true. One could make up their own 2nd wife and equally have courting involved. Copyright doesn't prevent one from using the same ordinary concepts.

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

        • identicon
          Anonymous Coward, 5 Nov 2014 @ 7:40am

          Re: Re: Re: On paper vs In practice

          If one invented their own second wife for Watson, they're creating an "alternate universe" version since the Doyle-created second wife is canon.

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

  • icon
    Dave Cortright (profile), 3 Nov 2014 @ 9:44pm

    Rule 39 FTW!

    I'm sure someone can work up a story with a lot of homoerotic tension between Holmes and Watson.

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

  • identicon
    Anonymous Coward, 3 Nov 2014 @ 10:11pm

    Disney of course

    Then it really will be locked up again

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

  • identicon
    Anonymous Coward, 3 Nov 2014 @ 11:47pm

    "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-300x150.jpg

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

    • identicon
      John Nemesh, 4 Nov 2014 @ 8:11am

      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.

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

    • identicon
      PRMan, 4 Nov 2014 @ 9:54am

      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.

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

  • icon
    robenss (profile), 4 Nov 2014 @ 12:17am

    Mr. Watson :D

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

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 1:31am

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


    BBC did: http://www.bbc.co.uk/programmes/b018ttws

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

    • icon
      Sheogorath (profile), 4 Nov 2014 @ 7:02am

      Re:

      The BBC is in the UK, where the entire Sherlock Holmes canon was in the Public Domain from 1981-1996, then from 2001 to the present day. *facepalms*

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

      • identicon
        Anonymous Coward, 9 Nov 2014 @ 9:35am

        Re: Re:

        Frankly, I don't want a Hollywood version of Sherlock Holmes. To many terrists and way to many bullets.

        Please let the BBC apply for worldwide copyright. Quick! Think of the children.

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

  • icon
    Ninja (profile), 4 Nov 2014 @ 3:13am

    Oh my God! Mr Doyle will be deprived of money to spend in the afterlife! Think of the artists!

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

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 6:49am

    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.

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

    • identicon
      PRMan, 4 Nov 2014 @ 9:56am

      Re: Why is Copyright so much longer than Patents?

      14 years + 14 year extension.

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

    • identicon
      Chris Brand, 4 Nov 2014 @ 11:10am

      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.

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

      • identicon
        Anonymous Coward, 5 Nov 2014 @ 7:43am

        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.

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

  • icon
    Sheogorath (profile), 4 Nov 2014 @ 6:54am

    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.

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

  • identicon
    Anon, 4 Nov 2014 @ 7:17am

    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.

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

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 7:28am

    I always liked Maurice LeBlanc's workaround - his bumbling detective antagonist is Holmlock Shears, who interferes with Lupin's plots alongside his overweight and dull assistant Wilson.

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

  • icon
    silverscarcat (profile), 4 Nov 2014 @ 2:21pm

    New Sherlock Holmes?

    Isn't there some Batman crossovers with him?

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

  • identicon
    Anonymous Coward, 5 Nov 2014 @ 3:38am

    No shit Sherlock

    and the case of the bottomless outhouse

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


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