Why Are Publications Trying To Bite The Google Hand That Feeds Them?

Elementary My Dear Watson....It's Called The Public Domain... Or Is It?

from the the-case-of-the-missing-public-domain dept

Thu, Dec 24th 2009 5:06pm — Mike Masnick

Fletch writes "Here's an interesting little article on why Sherlock Holmes remains so popular. Of course it happens to come right before the new movie opens and I am just sure it is pure journalism even though CNN and Warner are owned by the same company. Though I do find it rather odd that they don't mention a small part of the reason why Holmes is still so popular is that he is in the public domain and new and varied stories are created about him daily. Yes, he has always been a widely loved fictional character but there are a great many characters with fan bases. Holmes has stretched his by being used in almost all genres and having been written by some of the most popular authors even today. People like Stephen King and Neil Gaiman have written Holmes short stories and will continue to because of his public domain status. Even TV shows have gotten into the act with House M.D. which is a thinly veiled Holmes knock off. I find it odd that the same companies who decry the public domain are more then happy to use it when it suits them."

Definitely an interesting point from Fletch, but there is some dispute over the state of Sherlock Holmes' copyright status. While the character is in the public domain in some countries, there's still at least one book in the US covered by copyright, The Case Book, and the legal representative of the estate of Sir Arthur Conan Doyle seems to suggest that this means the character itself is protected by copyright until 2023, though that doesn't seem correct to me. My understanding of other characters that have gone into the public domain is that when their first works enter the public domain, the characters themselves enter the public domain -- but only the aspects of their characters originally covered by copyright that were included in those works.

Of course, this is made even more complex because it's still something of an open question as to what, exactly, about a character is covered by copyright. It used to be believed that the characters themselves were not covered by copyright, since it was only the expression, not the "idea" that was covered. But, a variety of court rulings in the US have ruled in favor of the claim that characters themselves can be covered by copyright -- leading to highly questionable legal results like the recent banning of a book using an updated version of Holden Caufield, the protagonist of JD Salinger's Catcher in the Rye.

Not surprisingly, the estate who owns the copyrights tries to present the situation as saying that all uses require a license. But, then again, it's not like they're going to tell you what's in the public domain when it's in their best interest to claim that nothing is. Either way, it appears that the initial claim concerning the public domain isn't quite the case -- and I would bet that the studio that made this latest movie paid for a license to avoid a legal fight. Why they should have to -- especially given the fact that when the content was written there was no way for it still to be protected today under copyright law -- is a separate (but rather important) question.

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Filed Under: public domain, sherlock holmes, trademark

29 Comments

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Doctor Strange, 24 Dec 2009 @ 5:34pm

I thought it was very much in their best interest to declare that it's in the public domain because then it would make the Holmes character much more popular and valuable?
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G (profile), 24 Dec 2009 @ 5:44pm

No new ideas
The 'new idea' drum is empty, has been for some time; dipping into the 'proven good ideas' is almost like printing free money. This is especially true when you can dip into the free money drum without having to pay for the privilege.
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Rooker, 24 Dec 2009 @ 5:51pm

Sherlock Holmes is over 120 years old. The man who created him died 80 friggin years ago. The fact that anyone, anywhere, still owns a copyright to any of this is outrageous.

There are people out there who would be perfectly happy finding the distant descendants of Shakespeare and convincing them to sue anyone who ever says the word "Hamlet".

Everyone has forgotten that copyright is a TEMPORARY monopoly designed specifically to have new works of art enter the public domain. The politicians who created it almost didn't because they thought it was a terrible idea.

And then Walt Disney made a ton of money by blatantly plagiarizing a cartoon from the public domain. Since then, his company has spent millions of dollars to pervert copyright law into the monstrosity it is today.
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jjmsan (profile), 24 Dec 2009 @ 7:29pm

Re:
It is in their interest if they can figure out how to make money from it. Haven't you read the rest of the site?
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headkase (profile), 24 Dec 2009 @ 7:56pm

Protect the artists...
Melancholy Elephants illuminates the situations surrounding copyrights. To protect all artists, you must disadvantage some. Those some rarely see the logic.
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ChurchHatesTucker (profile), 24 Dec 2009 @ 8:18pm

Re: Protect the artists...
Upvoted (well, if that were possible) for the Robinson ref.

Read that, then go to Starshipsofa.com and donate for Jeanne.
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Trails, 24 Dec 2009 @ 9:04pm

Sorta irrelevant, since...
It ain't Holmes.

Go see the Granada series starring Jeremy Brett. THAT is Holmes. I like Robert Downey Jr., but this film ain't the real deal.
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The Groove Tiger (profile), 25 Dec 2009 @ 12:12am

Again, we run the risk of losing our Holmes.
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Griff (profile), 25 Dec 2009 @ 8:07am

The mysterious case of the free eBook
I've been resding eBooks on my ancient PDA since about 2003.
With the Adobe Palm OS PDF viewer, lots of old out of copyright books in PDF form become very easy to access (planetpdf.com)

Hence I found myself reading a few Holmes stories recently. It works like this.
- Stumble into free book on net, download it
- Stick it on PDA for later
- Find yoursaelf somewhere isolated with nothing to do, start reading next available book on PDA
- Find that you like it, end up finishing it, even when back in the normal world.

Would I have gone out and bought my first Conan Doyle ? No. Would I now read another ? Yes.
Maybe even pay for a complete collection ? Possibly.
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Anonymous Coward, 25 Dec 2009 @ 11:54am

Re:
It's in their best interest to ignore the issue until those who have thought it was in the public domain use it and then, afterwords, claim it's not in the public domain and sue everyone. Otherwise, if they immediately proclaim it's not in the public domain from the outset no one would use it and they would have no one to sue.
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Anonymous Coward, 25 Dec 2009 @ 11:55am

Re: No new ideas
Just about all ideas are based on previous idea. The words you use right now are based on previous people who created those words.
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Anonymous Coward, 25 Dec 2009 @ 11:58am

Re: Protect the artists...
You mean to protect all artists you must severely disadvantage the overwhelming majority of them. Those that are protected are only the elite who do absolutely no work and benefit from the work that others have done many years ago.
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Tek'a R (profile), 25 Dec 2009 @ 6:01pm

Re: Re: Protect the artists...
read the story, AC.

Its a horrible future where the copyright maximalist dream (copyright forever and ever) is near at hand, and is finally shown to be a nightmare.

the "some" artists that are disadvantaged are the ones who cannot profit from their works in a reasonable time period and refuse to cope with the markets.

The Vast Majority who are protected are the Other artists of today and the infinite future, protecting their freedom to innovate, rebuild and even reinvent without some ancient monopoly power looming in the shadows to spank them and call them thieves.

bravo spider robinson too.
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PaulT (profile), 26 Dec 2009 @ 1:13am

I used to watch the old Basil Rathbone movies on TV as a kid. I'm not sure if they were public domain back then (the 80s), but most of them are now available on archive.org for free, and I had the pleasure of legally checking them out again recently. I have bought several editions of Conan Doyle's original books over the years because they were cheap (£1 or £1.50 at a time when the average paperback was £5) due to their public domain status and I have free copies on my iPod.

The character has been kept alive because he can be reused at will for TV and cinematic retellings of his stories, as well as interesting new adventures such as the Holmes vs Cthulthu compilation Shadows Over Baker Street or various videogame adventures. If the character was still completely tied up by copyright, many of these interesting departures probably wouldn't exist, and long-term interest in the character would be diminished.

To all the copyright maximalists out there - public domain doesn't mean that you lose the right or ability to make money from a product or character. It just means you lose total monopoly control. If a work or character deserves long term popularity, there will always be ways to make money if you have some imagination. Overbearing copyright controls will stifle creative and financial opportunities in the future, the exact opposite of what copyright is meant to do.

Oh, and I didn't realise that Nicholas Meyer had written 2 more Holmes adventures following his excellent Seven Per Cent Solution (where Holmes gets treatment from Sigmund Freud in Vienna for his cocaine addiction). Now I do after checking some details on Wikipedia, so I'll check them out!
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PWG, 27 Dec 2009 @ 5:10pm

Holmes popularity
anyone who concludes that Holmes popularity is because the character is in public domain ought to be prepared to note that Star Trek is popular because it is based on the Odyssey and that love stories are popular because David loved Bathsheba in the Bible. Give it up: invention is not public property--but imitation is.
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Cohen (profile), 27 Dec 2009 @ 6:24pm

The comment regarding "House"
The comment that "Even TV shows have gotten into the act with House M.D. which is a thinly veiled Holmes knock off..." should not be left unchallenged.

Sherlock Holmes is an educated man, but not a doctor. Gregory House is most certainly a doctor.

Holmes has a good friend, Dr. Watson, who is a doctor and the "author" of the Holmes stories. Watson is Holmes's constant companion during the mysteries.

House has a good friend, Dr. Wilson, who is a doctor, but is hardly the source of the House stories and is only sometimes part of solving the mysteries.

Holmes's mysteries are murders and robberies in London and England. House's mysteries are the illnesses of his patients.

Holmes's often works with law enforcement such as Scotland Yard. House has no equivalent work with any law enforcement.

There are a few shared traits such as the ability to see details hidden from others. But almost every detective from Poirot to Nero Wolf to Miss Marple can do the same.

Saying House is a thinly disguised Holmes is a disservice to the excellent work done by the House creative team.
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vonbrand (profile), 28 Dec 2009 @ 12:08pm

Re: Wide use makes the character more valuable...
... it just doesn't put the monies into the pockets of the "owners" of the copyright if the character is public domain.
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vonbrand (profile), 28 Dec 2009 @ 12:10pm

Re: Walt Disney plagiarized from the public domain?

Sorry, that just can't be done... if it is public doamin, anybody can take it and do as they well please.
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headkase (profile), 28 Dec 2009 @ 12:36pm

Re: Re: Walt Disney plagiarized from the public domain?
It's called "plagiarized" in this context because Disney took the idea, locked it up (which is ok for a limited time) but then abused copyright law to keep his additions from ever returning to the public domain. Effectively "stealing" it.
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zcat (profile), 28 Dec 2009 @ 12:36pm

Re:
I'd just like to correct you a little there. Disney kicked off with Steamboat Willie by blatantly plagiarising a Buster Keaton film made THE SAME YEAR. Not even close to copyright.

Many people claim this is OK because the Disney work was a parody, but I wouldn't give them so much slack. The original work was slapstick comedy. Disney's 'copy' was basically a cartoon adaptation of it. If anyone did the same thing to a Disney movie today (eg make a cartoon parody of the Hannah Montana movie) they'd be in court so fast their head would spin.
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zcat (profile), 28 Dec 2009 @ 12:37pm

Re: Re:
Duh, sorry.. 'not even close to public domain', still very much copyright.
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poch, 2 Jan 2010 @ 7:47am

Bravo Fletch. Great review!
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Rooker, 5 Jan 2010 @ 5:18am

Re: Re:
I don't like repeating urban legend as fact and it looks like I did exactly that.

You're right about Steamboat Willie but I was actually talking about Disney's mouse. I could swear I'd read he was based on another cartoon drawing that had gone into the public domain. I've spent some time at Snopes and Google University and I can't find anything that supports that, so it looks like I was wrong about the mouse.

On the other hand, I did learn that most of Disney's most successful movies are lifted straight from the pages of The Brothers Grimm. He dressed the stories up for a modern audience but he didn't create them. That's probably where I got mixed up.

Disney the company has managed to successfully lobby for longer copyright extensions every time the mouse comes close to the public domain, so I was right on that point at least. We're at the point now - thanks to Disney - where copyright extends to 70 years beyond the death of the creator. I'm sure the original creators of copyright law itself would be sputtering with rage at this perversion.
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jurgen wolff, 5 Jan 2010 @ 3:28pm

She doesn't own the copyright
This woman is not the holder of the US copyright. According to Project Guttenberg:
Doyle, Arthur Conan, Sir, 1859-1930
Title The Adventures of Sherlock Holmes
Note Also available as audio book: #9551
Contents A Scandal in Bohemia
The Red-Headed League
A Case of Identity
The Boscombe Valley Mystery
The Five Orange Pips
The Man with the Twisted Lip
The Adventure of the Blue Carbuncle
The Adventure of the Speckled Band
The Adventure of the Engineer’s Thumb
The Adventure of the Noble Bachelor
The Adventure of the Beryl Coronet
The Adventure of the Copper Beeches
Language English
LoC Class PR: Language and Literatures: English literature
Subject Holmes, Sherlock (Fictitious character) -- Fiction
Subject Private investigators -- England -- Fiction
Subject Detective and mystery stories, English
EText-No. 1661
Release Date 1999-03-01
Copyright Status Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook.
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Eric, 6 Jan 2010 @ 8:37am

apples/oranges
But, then again, it's not like they're going to tell you what's in the public domain when it's in their best interest to claim that nothing is....

...Why they should have to -- especially given the fact that when the content was written there was no way for it still to be protected today under copyright law -- is a separate (but rather important) question.

The Conan Doyle Estate's website actually *does* indicate (albeit backhandedly) that their copyright in the EU has expired and that they only have copyright in the US on post-1922 works.

They're not claiming copyright on the Holmes characters--they're claiming a trademark. Trademarks, unlike copyrights, have no expiration date (at least in the US). But, as I understand them, they also enjoy a lesser degree of protection, and have to be actively defended or they lapse. I do question whether they have defended their trademark vigorously enough.

The extent of trademark protections is something I don't know. I wonder, for example, whether the Great Mouse Detective (a *very* thinly veiled Holmes knockoff) would have required a license if the Holmes stories had been under copyright at the time?
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Eric, 6 Jan 2010 @ 9:08am

Re: apples/oranges
(what I meant in the last ¶ was, "if the Holmes stories had *not* been under copyright at the time")
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Nora Daly, 18 Mar 2010 @ 11:55am

We can all take a lesson on copyright from Sir Doyle himself...
http://www.sherlockholmesonline.org/Biography/biography8.htm

"You may marry him, murder him, or do anything you like to him."
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Dr Bob, 11 May 2010 @ 6:35pm

Re: The comment regarding "House"
@Cohen: "Saying House is a thinly disguised Holmes is a disservice to the excellent work done by the House creative team."

Except, of course, that the creators of House freely admit that Holmes was a major source of inspiration for the series.

(CF http://en.wikipedia.org/wiki/House_md#References_to_Sherlock_Holmes)
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Trojan, 11 Feb 2011 @ 2:34pm

Sherlock Holmes pictures published before 1923 are public domain and some of his silent films are public domain
All of the Sherlock Holmes pictures that are published in all of the stories before 1923 are public domain.

The silent films of Sherlock Holmes before 1923 are also public domain.

Nobody can not release their copyright into the public domain early because there is no law that allows you to waive your moral rights and economic rights to Sherlock Holmes.
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