Sherlock Holmes and the Case of the Public Domain

Here's some mostly good news in the world of intellectual property law:

Sherlock Hound is still under copyright.A federal judge has issued a declarative judgment stating that Holmes, Watson, 221B Baker Street, the dastardly Professor Moriarty and other elements included in the 50 Holmes works that Arthur Conan Doyle published before Jan. 1, 1923, are no longer covered by United States copyright law, and can therefore be freely used by others without paying any licensing fee to the writer's estate.

The ruling came in response to a civil complaint filed in February by Leslie S. Klinger, the editor of the three-volume, nearly 3,000-page What about John Cleese? Can we copyright John Cleese? "New Annotated Sherlock Holmes" and a number of other Holmes-related books. The complaint stemmed from "In the Company of Sherlock Holmes," a collection of new Holmes stories written by different authors and edited by Mr. Klinger and Laurie R. King, herself the author of a mystery series featuring Mary Russell, Holmes's wife.

Mr. Klinger and Ms. King had paid a $5,000 licensing fee for a previous Holmes-inspired collection. But in the complaint, Mr. Klinger said that the publisher of "In the Company of Sherlock Holmes," Pegasus Books, had declined to go forward after receiving a letter from the Conan Doyle Estate Ltd., a business entity organized in Britain, suggesting that the estate would prevent the new book from being sold by Amazon, Barnes & Noble and "similar retailers" unless it received another fee.

I call this mostly good news because the judge sided with the Doyle estate when it came to elements of the Holmes mythos introduced after 1923. Those are still under copyright protection in the U.S., so if you want to publish a story that mentions, say, Dr. Watson's career as a rugby player, you still need to pay a fee to Doyle's heirs. (*)

The court's decision, which you can read here, discusses such topics as a precedent set by Amos 'n' Andy and whether Watson's second marriage is a copyrightable "characteristic" or a non-copyrightable "event." If you enjoy the territory where legal and literary exegesis collide, you should read it.

When I last wrote about this case, I posed some questions to Reason readers. Now that the judge has released his ruling, I'll offer them again:

And for his next trick, the world's greatest detective will play "Flight of the Bumblebee" while juggling firecrackers atop a flagpole.Posts like this tend to set off debates in the comments about whether copyright laws should exist at all, but let's assume, for the sake of argument, that they should. Can anyone give me a good reason for applying copyright to a character, as opposed to a story about that character? It shouldn't be difficult for the fans of, say, Star Wars to tell which stories about Han Solo have George Lucas' input or blessing and which ones do not. Why shouldn't you have the legal right to circulate your own Han Solo films or novels on more than a semi-clandestine amateur basis without asking permission first, competing head to head with Disney to see who can tell the better stories about the characters and settings that Lucas invented? I can see why Disney's shareholders wouldn't like that, but why should their preferences be law?

And suppose we agree that characters should be copyrightable. Why on Earth should intellectual property law protect particular characteristics of a public-domain character? Does it really make sense to have a legal regime in which anyone can write a story about Sherlock Holmes but you need to pay tribute to Arthur Conan Doyle's heirs if you allude to the wrong elements of the canon?

Bonus link: "Ripping, Mixing, and Burning Arthur Conan Doyle."

* Correction: The phrase "sided with the Doyle estate" implies that Klinger was contesting this point. The judge thought that he was, but that was a misunderstanding: Klinger was not asserting a right to use elements introduced in Doyle's final stories, but was merely arguing that those elements did not remove the characters themselves from the public domain. He spells this out on page 15 of this brief.

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  • Neoliberal Kochtopus||

    let the cheap shots on Anal Vanneman begin anew, Reasonistas!

    If you are a fan of Sir Arthur Conan Doyle's Sherlock Holmes mysteries, do not waste your time with this book. The timeless characters of Sherlock Holmes and Dr. Watson are completely unrecognizeable and have been twisted to fit the modern idea of a mystery novel...I only gave this book one star because it won't allow you to assign zero.
  • Ska||

    Venal Analman?

  • Fist of Etiquette||

    Can anyone give me a good reason for applying copyright to a character, as opposed to a story about that character?

    Rule 34.

  • robc||

    So, your answer is no?

  • sarcasmic||

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    Sarah Massey, 33, from Chicago, has a bottom that measures 7ft around
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    John pron!

  • Ebriosa||

    The only person I've ever met with the last name Klinger also possessed the first name "Dick". And he put it on mugs and t-shirts.

  • grylliade||

    Yeah, I've never gotten the idea that you can copyright characters, or world details, or the like. Copyright is what it says on the tin: it's a right to copy a given work. That means that I can't, e.g., go out and freely make copies of the first Star Wars film, nor of its script, but I should damn well be able to tell my own stories about the characters.

    For example, this guy used to be able to refer to the characters he re-imagined by name. Not anymore! Even though it's TOTALLY OBVIOUS to anyone with a brain, he has to use generic names. Thanks, copyright!

  • Acosmist||

    That's an odd treatment of a term of art.

    By that I mean it's fallacious, so we're clear.

  • Overt||

    I'm on the fence about copyright for characters/worlds.

    On the one hand, I get the libertarian perspective that it includes infringement on liberty- and beyond that it can get very vague and lead to copyright trolls trying to force licensing by writing as broad a story as possible.

    On the other hand, as a writer, I don't like the idea that some large company could just usurp a writer's story and world. For example, when the first Harry Potter book came out and took the world by storm, there were suddenly a bunch of copy-cat novels out there written by ghost-writers and publishing shops. But they couldn't appropriate the entire Harry Potter mythos from Rowling. Without copyright on the entire world, Disney could have started pumping out "The Real Harry Potter" movies that completely undermined and hijacked her story. I think that Rowling (and others like her) deserve better than that, and I think the world is better off having allowed her the years to finish the series.

    On the other (third mutant) hand, it was a real pity that no one competent could ever finish the Dune Series when Herbert died, and instead the copyright remained in his family for the dynamic duo- his son and Anderson- to absolutely ruin. Had his work gone into the public domain sooner, it would likely have had a much more satisfying conclusion.

  • Overt||

    Related thought: one cannot look back at historical stories like Ancient Greek Mythology without seeing just what happens when there is no copyright. Pretty much every major figure or event in that cannon has contradictory storylines- Prometheus, Perseus, the rise of Olympus, Pandora, Heracles, etc- as those stories were retold by different authors up to and including today (Clash of the Titans, whu?) . It is both gratifying to see the variety and annoying to try and piece together a continuous narrative.

  • ||

    Authorship is usually less murky today though, so continuity of the story from author to author is easier.

  • OldMexican||

    A federal judge has issued a declarative judgment stating that [...]Holmes works that Arthur Conan Doyle published before Jan. 1, 1923, are no longer covered by United States copyright law, and can therefore be freely used by others without paying any licensing fee[...]


    This is impossible, because we all know that, without IP, the Sumerians would not have invented writing and we would still be communicating through grunts and hand gestures.

  • OldMexican||

    Can anyone give me a good reason for applying copyright to a character, as opposed to a story about that character?


    It is this sort of hair-splitting that undermines true property rights (IP), which we all know is the shit we make up in our minds, and not irrelevant or pedestrian or yucky things such as your land; or your house.

  • ||

    ...and not irrelevant or pedestrian or yucky things such as your land; or your house.

    Have you ever encountered anyone who argued in favor of intellectual property protection who wasn't also in favor of physical property rights? Once? Anywhere?

  • OldMexican||

    I can see why Disney's shareholders wouldn't like that, but why should their preferences be law?


    Why anybody's? Laws should not be the result of men's passions or appetites but of moral conviction. There's no moral conviction behind IP, only greed.

  • ||

    There's no moral conviction behind IP, only greed.

    The same is said by Marxists about the physical property that, in your view, mystically is imbued with rights by virtue of its being composed of matter. In addition to begging the question, it's a pretty simplistic and unsophisticated argument.

  • Cro's Innumerous Basterds||

    No, copyright protection of characters makes little sense. However, trademark protection of character names and likenesses may be appropriate in many instances, and there is no finite expiration date on trademark protection. So this whole discussion may be moot.

  • WM1000||

    "Why on Earth should intellectual property law protect particular characteristics of a public-domain character?"

    Such use of intellectual property laws really push the boundaries of its interpretation. I feel many people would agree that would be to far.

    Intellectual Property is really a limiting concept to begin with. Limiting in the sense that a person's incentive to build upon or enhance an existing idea or concept is diminished because the intellectual property law may prevent the person from selling the newly enhanced idea or concept to the general public.

    I understand a creator trying to protect the idea that they created, but after it is sold to the general public, why should we protect the creator from any individual enhancing the idea or making it better?

  • ||

    I'm sure when the founders elected to add IP protection to the constitution this is exactly what they had in mind.

  • Bretzky||

    "Can anyone give me a good reason for applying copyright to a character, as opposed to a story about that character?"

    I think an answer to that might depend on what you believe the purpose of copyright law is. If you believe that copyright is meant to secure a property right to the writer in his works (i.e., the creations of his mind), then a good reason for applying copyright to a character would be to expressly protect the creator from competition over those characters and worlds he has created.

    This might be similar to the idea that if you operate a business and you've built some top-of-the-line equipment that takes you many hours to construct and to learn how to use properly, you have the right to prevent your competitors from using your equipment in their operations, even though customers would know beforehand that whatever it is that is being made is not being made by you.

    It's not a perfect analogy, I admit, because literary compositions are almost a unique type of product, and competition in the field could result in an increase in demand for the original creator's works. But it could, of course, also reduce demand for them. The property right thesis of copyright would say, however, that taking the risk in that regard should be at the option of the copyright holder, and not be forced on him.

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