Copyright

Free Sherlock Holmes!

The long reach of intellectual property law.

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From an interesting Economist article headlined "Who owns Sherlock Holmes?":

Sherlock Hemlock: still under copyright.

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.

Not surprisingly, that means you need the Doyle estate's permission to reprint or adapt one of those 10 tales. Perhaps more surprisingly, it means you need its permission to publish an original Sherlock Holmes story that mentions some in-universe fact that first appeared in one of those tales. Sherlock Holmes himself is in the public domain, but when it comes to certain elements of the Holmes mythos, the law gets trickier.

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?

The Doyle estate, meanwhile, seems to think it has legal control over even more than those 10 short stories. Read the Economist feature for the details.

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  1. 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 policy argument for applying copyright to a character, as opposed to a story about that character?

    The very fact that you then immediately segue into the following question says you shouldn’t. Come on, Jesse. This kind of slicing and dicing is exactly the problem with this kind of IP hocus pocus. You can’t “own” an idea.

    1. This.

      Actually, you can own an idea, but anyone who thinks said idea owns it.

      It follows from the principle of self-ownership.

      1. Copyright explicitly doesn’t protect ideas but the expression of ideas.

        In theory, an idea can be patentable but not copyrightable.

        1. Well, if the “expression” of an idea doesnt fundamentally follow from the principle of self ownership (and the 1st amendment) I dont know what does.

          1. I understand the objections to intellectual property, but don’t look to the Constitution. That’s where copyright comes from in the U.S.

            The theory is that copyright can co-exist with the First Amendment protections due to safety valves in the form of fair use and, of course, the fact that the ideas can always be expressed in a different manner.

            The problem is that fair use isn’t very well protected. If Disney wants to castrate you for parodying Steamboat Willie, they’ll do it.

            1. Since the copyright clause is in the main body and the free speech clause is in the 1st amendment, any contradictions would default to the latter, as it amended the previous document.

              1. I think you’d be hard-pressed to find anyone now or then who believed that the First Amendment ended copyright.

                1. Law of Unintended Consequences occurs in amendments too.

                  1. Yeah, well, whatever. You’re barking up the wrong tree.

                    Legally, if copyright protection were to directly impinge on free speech in any fundamental way, then copyright should lose, not because of the amendment coming later but because of the way the provisions are worded. Compare Congress “shall have the power to promote the Progress of Science and useful Arts. . .” and “Congress shall make no law. . . .”

                    What’s interesting is that since copyright is permissive, not mandatory, it could be done away with by law, without amending the Constitution.

    2. You can’t “own” an idea.

      Well, I own your mom, and that was a terrible idea in hindsight.

    3. You can’t “own” an idea.

      But is a character, with back history, just an “idea.” Or have you mixed your labour to create something that can be homesteaded?

      1. Since ideas are non-rivalrous, they aren’t ownable.

        1. Since ideas are non-rivalrous, they aren’t ownable.

          But would you say that a character is rivalrous? Can you only have one with the same back story? Think a Han Solo, Gandolf, or Baron Harkonnen. They are as identifiable as a particular flat.

          1. If you write slashfic about a rogue starship captain, it in no way prevents me from doing the same thing. So no, it’s not rivalrous.

            Things are rivalrous only when the use by one person inherently prevents the use by another.

            1. If you write slashfic about a rogue starship captain, it in no way prevents me from doing the same thing. So no, it’s not rivalrous.

              But can you do so with the name of James Tiberius “Jim” Kirk? Or is his name copyrightable? That is my question, you can right about a rogue starship captain, but can you do it in the Star Trek setting, even if you don’t use Kirk’s name?

              1. If I say Kirk, does it psychically preclude you from making the same sounds?

                Of course not!

                So it’s not rivalrous!

                In economics, the definition of rivalrous is a property that precludes one person from using something when another person is using it.

                1. s/psychically/physically

                2. In economics, the definition of rivalrous is a property that precludes one person from using something when another person is using it.

                  Strange, that is the same definition my professor gave us in economics. I know what rivalrous means, I am asking does using the James Tiberius Kirk name pass that test? I don’t see how it could, as that is a specifiable, identifiable individual.

                  Could you make a Star Trek novel with totally different names? I don’t know if you could or not. A space based federation type exploration genre novel, sure.

                  1. Well, MR Shun Yu, let’s see if your use of the word Kirk prevents me from writing that word:

                    KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK, KIRK!

                    I guess it fails the test of rivalrousness and we can move on.

        2. That’s only if you think that being rivalrous is a critical component of being ownable.

          1. That’s only if you think that being rivalrous is a critical component of being ownable.

            In a free society, it is a necessary requirement to make something ownable ie. to mandate that one person has exclusive right to control it.

            The purpose of ownership is to reduce conflict by identifying who has the final say in the use of something. Absent rivalrousness, there is no conflict to resolve. Assigning ownership to rivalrous objects thus inherently requires someone to aggress against another person, to introduce a conflict. Naturally the aggression is a violation of the NAP, and thus is incompatible with a free society.

            1. Without copyrights and IP rights, wouldn’t every idea be subjected to the tragedy of the commons?

              1. Without copyrights and IP rights, wouldn’t every idea be subjected to the tragedy of the commons?

                No, because ideas are not rivalrous! When you have your herd overgraze a common, the grass your herd consumes, the grass being a rivalrous good, is now no longer available for your neighbor’s herd to consume.

                When I write ‘Kirk’ a million times, it does not deprive you of a million opportunities to write ‘Kirk’.

                1. “No, because ideas are not rivalrous!”

                  Well characters certainly are. If I create the character Sissy Sweet and write a few stories about her super-sweet character, and then someone turns around and publishes 50 shades of Sissy Sweet, that sound mighty rivalrous. to me. I mean some rival author is shitting all over my brand.

                  1. Why? Can’t there be more than one character named Sissy Sweet?

                2. When I write ‘Kirk’ a million times, it does not deprive you of a million opportunities to write ‘Kirk’.

                  But that is not the question. The question is can a “specific” Kirk be owned. The idea of a car (Kirk, if you will) cannot be owned, but a specific car (James T. Kirk of Star Trek) can.

                  1. That’s my thinking. “KIRK” is merely an arrangement of letters; write away. The character “Kirk” has a specific identity and that identity has value in the marketplace.

                    1. The character “Kirk” has a specific identity and that identity has value in the marketplace.

                      Which has fuck all to do with rivalrousness.

                      You grow grass on a field. It’s the only field for miles, so your grass is very valuable.

                      I clear my own larger field, and the market clearing price for grass tumbles.

                      In no way has that interfered with your use of the grass on your field. You can still sell it, albeit finding a willing buyer requires much lower prices.

                      The argument that ideas are less valuable if an artificial rivalrousness isn’t imposed by force has just as much moral power as the argument that I should be prevented by force from clearing my field in order to establish your monopoly on grass-growing.

                    2. You grow grass on a field.

                      An idea is not grass and therein lies your confusion.

                    3. THat may be, but he is a fictional character, not a real person or object and as such he can be used in an unlimited number of stories simultaneously and the existence of the other stories does not destroy or make less usable the others.

                  2. but a specific car (James T. Kirk of Star Trek) can.

                    I just wrote the string “James T. Kirk of Star Trek”. if that pattern of letters were rivalrous, then my post would look like this:

                    I just wrote the string “”

                    Obviously, the phrase James T Kirk is not rivalrous, as is any other string or sequence of bits or numbers or any other system of patterns you can conceive.

                    1. tarran,

                      I am going to go with the hypothesis that you are simply being purposefully obtuse, just for laughs. Otherwise, I would have to conclude that you are incapable of understanding what I wrote, and I refuse to believe that.

                    2. Mr Shun Yu. I am not being obtuse. I am insisting on precision in language. In economics, rivalrousness has a specific meaning, just like in physics, momentum has a specific meaning.

                      When someone tries to argue that a scalar in a mutlidimensional space is “momentum”, they are making a serious error.

                      Similarly, when you ascribe the term rivalrous to an object whose usage in no way inherently precludes another’s usage of that object (in this case the idea of a character named James T Kirk with a similar if not identical back-story), you are making a serious error.

                    3. “n economics, rivalrousness has a specific meaning, just like in physics”

                      So in your mind, economics is a hard science just like physics?

                      Apples =/= Oranges

                    4. So in your mind, economics is a hard science just like physics?

                      I think he is speaking strictly of terms. In economics, rivalrousness has a specific meaning, just like momentum has a specific meaning in physics.

                    5. “Similarly, when you ascribe the term rivalrous to an object whose usage in no way inherently precludes another’s usage of that object”

                      Got a 15-year-old daughter? Can I spend some time with her, because my usage in no way inherently precludes another’s usage of that daughter.

                    6. Can I spend some time with her, because my usage in no way inherently precludes another’s usage of that daughter.

                      This is both gratuitous and factually incorrect. Good job.

                    7. “Got a 15-year-old daughter? Can I spend some time with her, because my usage in no way inherently precludes another’s usage of that daughter.”

                      Yes it does. For that time, no one else can use the daughter. The same is not the case if you want to spend some time jerking off to James T. Kirk slash fiction. Everyone else in the world can simultaneously do the same with no conflict.

                      Those arguing against this seem to be the ones being deliberately obtuse. Whatever you think of IP, it is glaringly obvious that IP is a different sort of thing from real property. I’m not entirely opposed to IP protections, but to try to claim that it is exactly the same as other types of property is absurd on its face.

                    8. tarran,

                      I now see what you are saying, thank you. So you would say that nothing should be able to be trademarked, copy written, or patented as the ideas are not rivalrous?

                    9. I have to get back to work, so I’ll perforce keep this short:

                      Patents of monopoly are incompatible with a free society.

                      Copyright is possible, but would require a web of contracts (I sell you my James T Kirk novel in exchange for you agreeing not to copy it or resell it to fluffy). Rothbard had an essay showing how a contractual copyright regime could also serve as a ersatz patent system.

                      Owners of marketplaces could similarly establish trademark registration regimes and enforce them in the markets they control.

                    10. Copyright is possible, but would require a web of contracts (I sell you my James T Kirk novel in exchange for you agreeing not to copy it or resell it to fluffy). Rothbard had an essay showing how a contractual copyright regime could also serve as a ersatz patent system.

                      This actually raises more questions than it answers, but for another time.

  2. Well, it’s not all bad. Those stories pretty much all suck, so they can have them.

    But it is funny that a law created to encourage creative works is now stopping them from being created.

    1. What? Shall we say pistols at dawn?

      1. Not the early ones, which are usually pretty good. It’s the last 10 stories (pretty much anything he wrote in the 20th century) that sucked. Doyle hated the character at that point, and was mailing it in near the end.

        1. Oh, okay. Forget about the duel thing, then.

          1. That’s good, because I pawned my only gun. Which you would have known had you noticed the shabby clothes I’m wearing. You see, but you don’t observe.

            1. You know my methods, BakedPenguin.

  3. So, is Elementary a House ripoff, or was House a Sherlock Holmes ripoff to begin with?

    1. House was openly derived from Sherlock Holmes.

      Elementary is a rip-off of Sherlock, which is a rip-off of the original Sherlock Holmes.

      1. No shit, Sherlock.

      2. The funny thing is both Elementary and Sherlock are excellent shows in their own right and I would most happily sit down and watch multiple episodes of each in an evening.

        Ergo proof that IP is non rivalrous and that it does not require any sort of artifical rivalrousness imposed on it, both shows are able to succeed on their own merits as adaptations of a well known property

    2. That ain’t nuthin’. It was a year ago when I finally read Doyle’s Tales of Terror and Mystery and began to realize that not only Lost, but Watchmen, was derived, directly and indirectly, from it — primarily from “The Lost Special” therein. And Doyle’s “The Lost Special” was based on the real world story of the loss of locomotive 115 on Sept. 22, 1890 in Lindal-in-Furness. But the makers of Lost and of Watchmen put in clues to acknowledge their lineage; in fact I think Lost was my friend Damon’s way of telling Alan Moore he noticed the same in Watchmen. So this is no more ripoff than is House; rather, homage — which I hope you pronounce the English way rather than the French which has become so trendy.

  4. Mark Twain on copyright:

    My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years’ extension, because that benefits my two daughter, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don’t know anything and can’t do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

    1. I love Twain. In one paragraph he boasts and insults himself and his daughters and snidely attacks society.

  5. If you guys haven’t seen it yet, the BBC Sherlock starring Benedict Cumberbatch as Sherlock and Martin Freeman as Watson is pretty damn good. I’ve enjoyed all of the episodes so far, but I am disappoint that Peter Jackson has pillaged both of them from that series for his Hobbit trilogy, thereby delaying future Sherlock episodes for anothe year at least.

    1. I like the series quite a bit. I usually don’t like moderned-up versions of classic stories, but this is really well done.

      1. Same here. Modern adaptations of classics tend to be fairly poor renditions, but they wrote that one extremely well and Cumberbatch nails the empathy-lacking borderline-autistic savant role so well that I am convinced he must be a libertarian.

        1. This is probably blasphemy to long-teim Holmes fans but I really enjoyed the last Guy Ritchie Sherlock Homes movie. It honestly made me think about starting to read the original stories.

          However, I am almost finished reading Unfinished Tales of Numenor and Middle-Earth and am champing aqt the bit to read Silmarillion again. I think it will make a lot more sense now.

          1. J’accuse! J’accuse!

        2. Agreed. Comberbatch is excellent and all around I think the characters are great. Speaking of Sherlock and the new episodes, what do those of you who watch the series think of the season 2 ending — i.e. how’d he do it? Just watched it again with some friends and we had a lively discussion after about the various possibilities.

          1. I think it’s because he’s the Batman.

              1. Promoting Law and Order in the new frontier? Sounds great, Tulpa.

                1. Look out, Space Mexicans!

              2. Looks vaguely fascist to me. Also reminds we of the dastardly Numenorans and their ships sailing to Middle-Earth in the guise of fighting Sauron but secretly on a mission of conquest.

                1. Surely you forgot about this.

    2. Great show with a great cast. They are filming the new season this spring & summer, though, so the delay was minor.

      1. I believe it airs on BBC in the fall of this year, but we yanks will have to wait an additional six months or something before it hits PBS out here.

        Perhaps I’ll be able to find “other means” that may or may not have been discussed in yesterday’s torrent/game of thrones thread.

    3. I watched the first season but I was pretty disappointed. Sherlock is simply too slick, and Watson is a total wimp (hence a bad foil) even though he just got back from a war zone.

      It’s not terrible by any means but distorted the characters too much for my taste.

      1. I don’t see Watson as a wimp at all in the show. (Spoiler alert) In the very first episode he stands up Mycroft after being kidnapped and hauled off to some secret location for what you think at the time is a fairly threatening encounter. In fact throughout the show he, in his quiet and understated way, tries to rein in the excesses of Sherlock, often standing up to both him and Mycroft. Where is he a wimp?

        1. I agree. In fact, I think he’s stronger in that sense than the original Watson.

          1. Well, maybe I ought to give it a try again. It’s not like there’s an ocean of great shows to watch.

            1. But leaving Watson aside, don’t you find Holmes to be too damn slick?

              1. Yeah, Holmes is supposed to be too damn slick. I think it is great. DEfinitely watch ti again.

        2. Honestly I can’t remember now, but that was my impression, just his general demeanor.

          I suppose he is just too quiet and understated for my taste.

  6. Say, isn’t that Sherlock Holmes?

  7. If you write slashfic about a rogue starship captain, it in no way prevents me from doing the same thing.

    If you write fiction about a starship captain named tarran, I’ll almost certainly not read it and won’t pay anything to read it.

    If you write fiction about a starship captain named James T. Kirk, I might read it and might spend money on it, either because I’m interested to see a new angle on the character, or because you tricked me into thinking you were somehow affiliated with the person or persons who created the original character.

    Since you didn’t create the character, that delta between my non-interest and my interest wasn’t earned. The complete lack of interest I would have if you made up your own name is what your own efforts truly would have earned you. I tend to distrust anything you come by unearned, and will strongly err on the side of agreeing with those who say you “stole” it.

    1. This sounds more like a trademark issue. While I should be able to make a cartoon about Mickey Mouse I can’t claim it is “Disney’s Mickey Mouse” as they have nothing to do with it. You could easily do the same with other properties so you would not be misled.

      1. That would largely solve any “consumer confusion” problem, but that’s not really the point.

    2. If you write fiction about a starship captain named James T. Kirk, I might read it and might spend money on it, either because I’m interested to see a new angle on the character, or because you tricked me into thinking you were somehow affiliated with the person or persons who created the original character.

      And assuming I didn’t commit fraud, but wrote “The Murder of Prince Prospero by James T Kirk and his Enormously Bosomed Wife by tarran”, and you bought a copy of the book, how is your buyer’s remorse justidication for me being prevented from having written it in the first place?

      And BTW, your argument is a non sequitur in that my example was intended to demonstrate why ideas are non-rivalrous. After all, the guy who penned the first stories about James T Kirk is just as likely to be a sucky writer as I am.

  8. Only a total idiot would would want to write Sherlock Holmes stories. And I mean a total idiot.

    1. This guy got a bestselling book and a movie deal out of it.

      1. And, thanks to that, gave us Khaaan!

        1. Yeah he did the even numbered ones which were the strongest.

      2. Let me rephrase my comment:

        Anal Vanneman, please pick up the white courtesy phone. Mr. Anal Vanneman.

        1. Don’t say it on more time, damn it!

  9. We should be acting like those later stories don’t exist anyway. They suck.

  10. The problem with copyright is that it presumes things will end up in the public domain eventually. That isn’t happening any more; heck the song Happy Birthday, written in the 19th century, is still under copyright in the 21st. If things actually expired out of copyright instead of Disney lobbying Congress to extend copyright again every time Mickey Mouse is about to fall out of copyright, there would be more public domain material for everyone and less incentives for piracy.

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

    Yes. Apologies for thread necromancy, but as a writer I couldn’t let this one slide. Table any general objections to the concept of copyright temporarily.

    Ok, so I write a novel in which the main character is a woman named Jane Whatsherface. It’s a young-adult horror novel (because it’s not like the market’s flooded or anything) and she’s a heroine sort of between Hermione and Pippi Longstockings, let’s say.

    Two weeks after I publish, someone writes a hardcore porn “fanfic” short story. It goes viral, as these things tend to do. People start making YouTube videos about it, etc., and all of a sudden my character’s name becomes associated more closely with vegetable penetration than wholesome values like pluckiness and fortitude (although I’m sure the latter may come in handy regarding the former).

    Now, in the free market of ideas, it could be argued that the better use for my character is cartoon vegetable porn since that’s attracted the most attention. However, the work I invested has now gone to utter poop, because nobody’s going to buy his precious little snowflake a YA book about a teenage girl who’s name is now synonymous with double penetration.

    And that, my friends, is why authors copyright characters.

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