Sherlock Holmes Is Public Domain–Or Is It?

"Who owns Sherlock Holmes?" The answer is . . . complicated.

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The Economist asks, “Who owns Sherlock Holmes?” The answer is . . . complicated.

The situation is muddled by differing copyright regimes in America and elsewhere. No one disputes that the copyright has expired on Conan Doyle’s work anywhere where protection ceases 70 years after an author’s death (he died in 1930). Yet when America reformed its copyright rules in 1978 to introduce a “life plus” model in harmony with the rest of the world for works created starting in 1978, it retained its older term-limited system for property created between 1923 and 1977. Works produced within that range have had their expiration extended to a fixed 95-year term from first publication; anything produced earlier is in the public domain. This umbrella of protection covers ten Holmes stories published in America for the first time as part of “The Case-Book of Sherlock Holmes” in 1927. These stories are still under copyright until January 1st 2023.

Mr Klinger says in his lawsuit that the estate has demanded a licence for access to parts of Holmes’s history, characterisation and chums. Back in 2010, when he and Ms King prepared another collection of Holmes-inspired stories called “A Study in Sherlock”, he and his publisher, Random House, agreed to assuage the estate to avoid litigation, even though the fan fiction avoided any story elements that remain under copyright. The fee was $5,000, Mr Klinger has told the New York Times. But for a sequel called “In the Company of Sherlock Holmes”, to be published by Pegasus Books, the editors intend to stand their ground. Mr Klinger says that in December 2012 the Conan Doyle estate threatened to alert retailers of the copyright dispute were the book to go ahead without license. He adds that Pegasus now refuses to publish the work without an affirmative declaration that no legal action will be lodged against it, nor will attempts be made to interfere with distribution.

The estate also asserts some trademark rights on the Holmes characters, but Mr Klinger confirms to your correspondent that this was not part of the license claim. Jennifer Jenkins, the director of Duke University’s Centre for the Study of the Public Domain, says trademark protection would be inapplicable, in any case. “Trademark law doesn’t fit what they’re claiming to own or what they’re trying to stop,” she says. Ms Jenkins also dismisses any copyright claim the estate might have to any pre-1923 elements of Holmes’s biography. “The problem is that Sherlock Holmes and Watson are quite clearly in the public domain.” The estate did not respond to a request for details about its intellectual property.

To avoid similar disputes, high-profile film-makers, television producers and other creators have paid the estate in the past, including for the BBC’s “Sherlock”, CBS’s “Elementary” and the Hollywood films starring Robert Downey junior (for which Mr Klinger served as a Holmes expert). But many other uses of Sherlockiana have sought no permission, and have received no sanction. This includes Ms King’s own series of “Mary Russell” books, told from the perspective of Holmes’s eponymous protégé, colleague and, finally, wife.

An expert in the duration of copyright terms in America, Peter Hirtle of Cornell University finds no basis for the Conan Doyle estate to claim general ownership over aspects of Holmes from stories that are in the public domain. “Let’s imagine that the fact that Holmes plays the violin was included for the first time in one of the copyrighted stories,” he says via e-mail, “then it can’t be included in any new story that draws on the public domain versions.” But if the “Company” stories rely entirely on public-domain elements, then the estate has no ground to stand on, he adds.

It’s often said of the American legal system, “The process is the punishment.” In civil litigation, simply engaging in the suit imposes so much cost that even if you win a case, you lose–the time and money of fighting it can be worse than simply giving in. The Conan Doyle estate is very much capitalizing on this, betting on authors, publishers, and movie houses giving in to intimidation even in cases where it’s obvious that the claim being advanced has no merit.

To be sure, there are costs to filing frivolous suits. In some jurisdictions, where loser pays rules are in effect, they can be prohibitive. But there’s a cottage industry in filing dubious claims in the hopes of extracting even modest settlements just to make the case go away.

 

via Paul Hsieh

FILED UNDER: Law and the Courts, Quick Takes
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. john personna says:

    The crime is that US Copyright did not stick at the original 14 + 14 years.

  2. Ben says:

    Our copyright system is insane. Life + 70 years is preposterous. I can sort of understand the argument that a person should be able to pass on valuable property to their kids if they pass early. But what possible public good can come from allowing an author’s or artist’s great-great-grandchildren to continue to cash in and restrict use of a work?

  3. Tsar Nicholas says:

    But there’s a cottage industry in filing dubious claims in the hopes of extracting even modest settlements just to make the case go away

    .

    It’s tempting to say “no shit, Sherlock,” but I’ll pass. Oh, wait.

    Seriously, the above-quoted statement is a remarkable understatement. Shakedown lawsuits for decades have been strangling the economy and specifically destroying job creation. It’s not at all limited to the copyright, trademark and patent cottage lawsuit industries. Med. mal. cases. Wage and hour class actions. Overtime and meal & break class actions. MDL products cases. ADA access cases. Disparate impact class actions. Securities laws class actions. Antitrust class actions. “Non-class” class actions. The list goes on, and on, and on. Every dollar spent fighting and insuring against litigation is one less dollar for R&D, capital investment and net hiring.

    Then of course there are the political elephants in the room: which political party for decades has been advocating for basic, common sense reforms of the lawsuit cottage industry system and which political party for decades along with its big money donors have tooth and nail been fighting against even the ideas of said reforms? The answers are elementary…..

  4. Franklin says:

    I’m giving you a thumb’s up purely for the Sherlock references, not for content.

  5. john personna says:

    @Tsar Nicholas:

    -1 for pretending tort reform is copyright reform

  6. Ben says:

    @Tsar Nicholas:

    Yeah, tort reform will be awesome!! Then businesses, doctors, and lawyers can screw over, injure, poison, maim or kill their customers, patients and employees with impunity, and the aggrieved will be able to get a nice puny little 5 figure settlement out of it that won’t even pay for medical bills.

    Seriously, why do so many people enjoy licking corporate boots?

  7. James in LA says:

    The coming meshnet revolution — those growing clouds always-on devices — will make redundant the ISP model used to enforce content restrictions. It will spell the end of copyrights, trademarks, and patents as they cannot be enforced on an open network that is secure to a person.

    These clouds are already city-sized. Soon, they will encompass whole counties, and then nations. New devices are coming off the line every day, and most have been deliberately throttled back by the carrier. Each is a powerful network device capable of supporting hundreds of connections at once. Thou shall not unlock this device.

    By 2020, latest. I am already using a nascent version of it. Strong encryption end-to-end. My “address” cannot be known in this model. Meshnets also allow you to do something the current infrastructure does not allow: making sure the recipient of your message is the only one who sees it.

    The potential to restore balance to our government is real. These clouds are growing and people 45 and under are utterly uninterested in our broken government from old politicians who have let the modern world pass them by in favor of boundless greed.

    There will be grief. Govts and big business have zero interest in strong encryption. Isn’t it just a little suspicious that strong encryption has been with us for decades, but no email programs incorporate it and make it easy to use? It would certainly help the spam problem.

    Those who fight from the past are going to lose this war. Big-time.

    http://projectmeshnet.org

  8. matt bernius says:

    @Ben:

    Life + 70 years is preposterous. I can sort of understand the argument that a person should be able to pass on valuable property to their kids if they pass early. But what possible public good can come from allowing an author’s or artist’s great-great-grandchildren to continue to cash in and restrict use of a work?

    What’s particularly problematic is corporate entities owning copyrights given that corporations continue to “live” long past the original creator’s lives. And, at some point, that’s going to become the focus of future efforts to prolong copyrights.

    [Sarcasm] As long as Walt Disney, the corporation endures, why should they have to lose the rights to their creations (i.e. Snow White the film and the appearance of that character]) even though almost everyone who worked on the original product shuffled off this mortal coil years ago? I mean, what does it matter that the original character was public domain to begin with?[/sarcasm]

  9. john personna says:

    @James in LA:

    If the corps could get something as benign as municipal wi-fi outlawed, why do think they wouldn’t outlaw mesh networks?

    Terrorist threat, right?

    (Actually a threat to profit, which is the same thing.)

  10. Argon says:

    Call it the ‘Disney tax’. And it’s less about estates and individuals, and more about corporations.

  11. grumpy realist says:

    @matt bernius: if it’s a work-for-hire, the expiration date is a number of years from the date of creation. So the lifetime of the corporation is irrelevant.