Conan Doyle Estate Is Horrified That The Public Domain Might Create 'Multiple Personalities' Of Sherlock Holmes
from the actually,-that's-the-point dept
For a few years now we've discussed a few times some of the confusion as to why Sherlock Holmes isn't considered in the public domain in the US, even though he probably should be. As we've explained, all of Sir Arthur Conan Doyle's Sherlock Holmes books except for one are in the public domain. The Conan Doyle estate claims that having that single book under copyright means that the entire character is covered by copyright. Earlier this year, we pointed out that a noted Sherlock Holmes scholar (such things exist!) named Leslie Klinger had decided to file for declaratory judgment that Sherlock Holmes is in the public domain, following a legal nastygram from the Estate, arguing that it needed a license fee for Klinger's latest book.The Conan Doyle Estate has now filed its response to the motion for summary judgment, and it's an astounding study of ignorance concerning copyright law and the public domain. While it admits that there are only ten short stories (from that one remaining book) that are under copyright, it still argues that those ten stories lock up pretty much everything else. First, it argues that the characters of Sherlock Holmes and Dr. Watson continued to grow as personalities in those last ten stories, and that the stories were non-linear (i.e., some took place earlier in their fictional lives), it more or less encompasses everything, even those public domain works.
The facts are that Sir Arthur continued creating the characters in the copyrighted Ten Stories, adding significant aspects of each character’s background, creating new history about the dynamics of their own relationship, changing Holmes’s outlook on the world, and giving him new skills. And Sir Arthur did this in a non-linear way. Each of the Ten Stories is set at various points earlier in the two men’s lives—and even late stories create new aspects of the men’s youthful character. In other words, at any given point in their fictional lives, the characters depend on copyrighted character development.Of course, if that's true, it basically presents a way to make copyright on characters perpetual. You just need to have someone continue to release new works that have some minor change to the character, and they get to pretend you have a new starting point for the public domain ticker. That can't be what the law intended.
Astoundingly, the filing suggests that the public domain clock only begins at the point where the "creation of the characters was complete." That is, so long as you never "complete" the character creation, they can never go into the public domain.
If the creation of the characters was complete in works published in the United States before 1923, the characters are in the public domain. If, however, the characters as works of authorship were only completed in copyrighted stories published in 1923 or after, the characters are works of authorship protected by United States copyright law.But, if that's true, then the whole concept of the idea/expression dichotomy is shot to hell. Copyright is only supposed to cover the specific expression, not the wider ideas, which would include the facets of the character that were added in those last ten stories. But, the Estate is trying to flip this all on its head by arguing that those minor character changes in the small number of covered works retroactively flows back to the character in the earlier stories.
And then it gets really wacky. The Estate seems to freak out that if the elements of Holmes and Watson were to be declared public domain, then you'd get (*gasp*!) a splintering of their characters -- a fate that seems so horrific to the Estate, which they assume must also horrify everyone else. To the Estate, there can be only one version of those characters:
Plaintiff’s position would create multiple personalities out of Sherlock Holmes: a “public domain” version of his character attempting to only use only public domain traits, next to the true character Sir Arthur created. But there are not sixty versions of Sherlock Holmes in the sixty stories; there is one complex Sherlock Holmes. To attempt to dismantle Holmes’s character is not only impossible as a practical matter, but would ignore the reality that Sir Arthur Conan Doyle created a single complex character complete in sixty stories.But, of course, it's not at all true that there is only one version of Holmes and Watson. There are infinite versions. There's the version that Conan Doyle intended. There are different versions that appear in each book. There are different versions that appear in various movies and television programs. There are different versions that live on in the minds of millions of readers and listeners and viewers who have experienced Sherlock Holmes's stories. In fact, the very nature of the public domain is to encourage that sort of thing by enabling everyone to build off of those cultural artifacts to create something new and different, using those original works as resources. To pretend that it's one singular cultural concept, only encapsulated in the whole of the published works, such that the public domain clock does not start ticking until the final work is published is entirely illogical.
The Estate also has a pretty serious problem, in that previous case law is against them on this. In particular, the Silverman v. CBS Inc. case, concerning the public domain status of "Amos 'n' Andy." In that case, the court ruled that the original radio scripts and the characters were in the public domain, even though some later television shows were not. The Estate tries to distinguish this case by arguing that Amos 'n' Andy didn't change over time and were "flat entertainment characters" who could be described as "without the depth and complexity of a living person." But that, too, makes little sense. Again, it's clear from that ruling that the characteristics of the parts that went into the public domain are, also, considered in the public domain. That those characters didn't change merely means that there were no remaining characteristics that remain under copyright protection even as the TV shows might. That still works in this particular case, where all of the characteristics outside of the final ten stories are also in the public domain. That there are character developments in those final ten stories, any copyright should only apply to the direct expression of those character developments.
The Estate also rejects the (fairly compelling) argument that a character is created in the initial work, and future works fleshing out that character are simply derivative works off of the initial copyright. That's a reading of the law that makes sense, but the Estate will have nothing to do with it, complaining that "it's not fair" to think of later works in a series as derivative. Honestly, that's about the extent of the Estate's argument here: that it's somehow insulting to suggest that later books in a series can be called "derivative" for the sake of copyright. But they seem to offer no legal theory to support this.
Of course, it's kind of ridiculous we're even having this fight. At the time those last ten stories were published (1927), the copyright law stated, clearly, that the maximum amount of time that the works could be under copyright was 56 years. Since the structure of copyright law is that it's supposed to act, in part, as an incentive to get someone to publish (for the purpose of promoting the progress of science and learning), clearly that incentive was enough. Any second beyond 56 years is taking the work away from the public domain, effectively going back on the deal with the public. The deal was "you get 56 years of exclusivity, and we get your book." Thus, it's insane and nonsensical that all Sherlock Holmes works haven't bee in the public domain since 1983. However, hopefully this case will show that nearly all of Holmes and Watson are, in fact, in the public domain.
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Filed Under: arthur conan doyle, copyright, dr. watson, leslie klinger, public domain, sherlock holmes
Companies: conan doyle estate
Reader Comments
The First Word
“Re: Re: Why does every hack want to taint his source with crappy imitation?
Certainly 83 years after the death of the creator is "a giveaway to an underserved monopoly."Many here would argue that there should be no copyright at all.
I'm in favor of short, renewable 10-15 year terms myself, with limits on the number of times something may be renewed. 45 years seems reasonable - a 20-year-old author would be 65 when the copyright expires, giving them a whole working lifetime to derive profits, provided they keep renewing. You would assume that anyone collecting substantial royalties on a work after 45 years would be wealthy enough to have saved for retirement.
More importantly, we need a government-run and legally authoritative searchable database, since one of the biggest problems with copyright is there's no easy way to determine if something is under copyright. The United States does not have such a database, which is abominable.
Not that any of these changes would ever happen.
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You mean...
Awesome!
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Re: You mean...
http://en.wikipedia.org/wiki/Sherlock_Holmes_in_the_22nd_Century
Though this story makes me wonder if it was licensed, or for that matter if various other Sherlock Holmes derived movies and TV I know of were licensed or not.
Also the existence of said tv shows and movies pretty much blow to crap the concern over there possibly being "multiple personalities" of Sherlock Holmes. There already are multiple personalities of him thanks to those works.
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Point is, they are afraid of more culture developing around Mr Doyle's creation and are trying to use copyright to stop such 'progress'. It's clearly against the original intentions of copyright. Even if they lose and it's all settled the very fact that this could have been brought into a lawsuit spells "copyright is broken". It should be crystal clear and not the complete smoky madness that it is today after years of Mickey Mouse trampling.
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Bad Faith
It's howlingly obvious all they care about are money and control.
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Re: Bad Faith
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Re: Bad Faith
Not to mention that the "estate" owners have little to do with Sir Arthur Conan Doyle. They're just hanging on to their cash-cow.
The estate has s little to do with ACD that the Holmes fandom got together to write and publish some fanfics with the profits going to saving the home ACD wrote and lived in and turning it into a museum. Not a peep was heard from the "estate".
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Re: Bad Faith
How can the estate claim they don't want "multiple personalities" of Holmes, when we already have (as of September 2013):
1) "Sherlock": the BBC series with Benedict Cumberbatch and Martin Freeman.
2) "Elementary": the CBS series with (shock!) Asian lady as Watson.
3) The "Sherlock Holmes" movies with Robert Downey Jr and Jude Law.
I can understand the state licensing these versions and making money, but why let CBS turn Watson into an Asian lady? I'm not saying they shouldn't try some innovating, but why do it concurrently when the BBC series is very good?
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Irony...
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Re: Irony...
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In fact, the story of that happening could make a great book! Someone should write about this character. He should have some kind of side-kick too.
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Why does every hack want to taint his source with crappy imitation?
Anyhoo, this is again an "argument" that makes me lean toward perpetual copyright, if it'd keep one of the few good characters in the world from being mis-treated by every hacky hack in Hacktown who just tacks a big name onto the front of his hackery.*
If you're against copyright, quit putting your name on posts! You don't own the idea!
[* Hack writer means one who turns out low-quality work, especially for hire; word usage now somewhat rare.]
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Re: Why does every hack want to taint his source with crappy imitation?
Because that’s how culture works. We take the characteristics of a good story, character, film, song, etc. and work them into our own works, either directly or indirectly and in pieces or in whole. Fifty Shades of Grey started off as a Twilight fanfiction. Practically every modern zombie movie is spun off of the original Night of the Living Dead. We appropriate old culture and transform it into new culture in one way or another. If we had perpetual copyright, culture couldn't grow because culture would require people to create 100% original works every time they set pen to paper or strummed a guitar or picked up a camera.
Locking up culture behind a wall of control presents the most dangerous threat to culture. Copyright strangles culture. It denies us the right to grow culture and improve culture and create new culture.
That you oppose the public domain (the best resource for anyone looking to grow and create new culture) says more about how much you respect how artists work and create than anything.
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Re: Re: Why does every hack want to taint his source with crappy imitation?
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
Everything is derivative, Cathy. Everything. Detective novels existed prior to Doyle's work. http://www.theguardian.com/books/2012/feb/21/first-detective-novel-notting-hill-mystery
Even the characters aren't particularly original. The Stoic Smoking Bookish Misanthrope has been a stock character in literature for centuries, as has the Trusty Sidekick. That Doyle gave Holmes a few character quirks and made him eccentric doesn't make him original. It's the quality of the writing that makes the stories work.
Define "Grifter."
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Re: Why does every hack want to taint his source with crappy imitation?
2) who's to say these are to be no talent hack writers? Maybe they'll be really talented writers who write some really good shit. You made the exams of music, I find that many times the cover of a song surpasses the original. Will there be no talent ripoffs? Undoubtedly. But there will also be some amazing stuff.
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Re: Re: Why does every hack want to taint his source with crappy imitation?
To wit: Johnny Cash’s cover of ‘Hurt’.
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
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Re: Why does every hack want to taint his source with crappy imitation?
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Re: Re: Why does every hack want to taint his source with crappy imitation?
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
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Re: Why does every hack want to taint his source with crappy imitation?
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Re: Re: Why does every hack want to taint his source with crappy imitation?
Or maybe he's just a really good troll...
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
I edited your comment for brevity and added truth ;)
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Re: Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
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Re: Why does every hack want to taint his source with crappy imitation?
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Re: Re: Why does every hack want to taint his source with crappy imitation?
No. Wrong. Its retribution for his/her/its failure to make it as any kind of creative talent. He/it is trying to punish the world because he/it couldn't make anything that anyone wanted.
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Re: Why does every hack want to taint his source with crappy imitation?
To decide in advance that something is now a classic and can never be touched is wrong on so many levels. It denies everyone in the future the ability to play with an idea or concept. Will most of them suck? Yep, but that gem that you would deny the chance to come into existence makes it worth plowing through the dross.
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Re: Why does every hack want to taint his source with crappy imitation?
out_of_the_blue just hates it when due process is enforced.
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Re: Why does every hack want to taint his source with crappy imitation?
Just out of curiosity, were this 1928 does anyone doubt that this site would be arguing that the author's copyright has lasted one year, long enough for the publication of a first edition, and that it should now enter the public domain so it could be used to create more culture? In fairness, even here 5 years would likely be acceptable...but any longer is simply the giveaway of an underserved monopoly.
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Re: Re: Why does every hack want to taint his source with crappy imitation?
Many here would argue that there should be no copyright at all.
I'm in favor of short, renewable 10-15 year terms myself, with limits on the number of times something may be renewed. 45 years seems reasonable - a 20-year-old author would be 65 when the copyright expires, giving them a whole working lifetime to derive profits, provided they keep renewing. You would assume that anyone collecting substantial royalties on a work after 45 years would be wealthy enough to have saved for retirement.
More importantly, we need a government-run and legally authoritative searchable database, since one of the biggest problems with copyright is there's no easy way to determine if something is under copyright. The United States does not have such a database, which is abominable.
Not that any of these changes would ever happen.
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
And here's why:
http://en.wikipedia.org/wiki/Public_Domain_Enhancement_Act#Opposition_to_PDEA
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
And here's why:
http://en.wikipedia.org/wiki/Public_Domain_Enhancement_Act#Opposition_to_PDEA
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Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
That rather depends. An author might experience only modest success on an early work, and throughout their life, only to have a later work be wildly successful and spark a strong interested in their earlier works. It would really suck for someone to barely make ends meet throughout their life, finally hit it big, only to have half their back catalog in the public domain, free for exploiting by others.
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Re: Re: Re: Re: Why does every hack want to taint his source with crappy imitation?
Seems like it would be pretty unusual for someone to only hit it big late in life. And even if that happens, they obviously had enough incentive to create those earlier works, so a longer copyright term wasn't necessary in that case.
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Re: Why does every hack want to taint his source with crappy imitation?
There would simply be no need because everyone here would see that works were entering the public domain. There would be no need to fight against the modern corruption of copyright law to benefit a few large corporations.
Context is everything of course.
There isn't going to be a backlash against a perceived injustice without that injustice.
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Re: Why does every hack want to taint his source with crappy imitation?
What is his estate? Lawyers and his heirs. I thought you said lawyers were bad? But you want them to be able to grift income off of the work of a dead man? Forever? What kind of screwed up logic is that? I thought you hated grifters....
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Be realistic, this is already shot to hell as Characters are obviously ideas and not expressions anyway. The specific words or images mage to describe the character would be the expression.
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83 years you say? Then the Sherlock character is doomed to splinter anyway, regardless of the result of this lawsuit. There will be the official Doyle-estate sanctioned version... and his nefarious toque-wearing Canadian counterpart, a notorious freeloader who respects copyright for a mere 50 years after the author's death, and not a day longer!
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Re: Re: 83 years
Surely in the UK it has finally passed the life +70 term (in fact it will have gone PD via the old life+50 term in 198 - only to be brought back by the disgraceful extension sponsored by Callaghan.
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Re: Re: Re: 83 years
If it was published after 1923, it can be under copyright for 95 years.
http://copyright.cornell.edu/resources/publicdomain.cfm
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if Doyle died 83 years ago...
...
Then all his works should have been in the public domain in 2000.
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...
Then all his works should have been in the public domain in 2000.
Works first created on or after January 1, 1978 enter the public domain 70 years after the death of the author if the author is a natural person.
Works published and copyrighted 1923-1977 retain copyright for 95 years, assuming all renewal requirements were met. No such works will enter the public domain until 2019.
All works whose copyrights were secured in the US before 1923 are now in the public domain.
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Retelling stories
Stories need to be retold as culture and language change else they fade away as fewer and fewer people can actually read them. Where would stories of King Arthur be if they were not retold as language and culture changed.
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Re: Retelling stories
Every generation has a new way of telling the same stories that makes it relevant to them, even if that means setting it space or adding zombies. It's not about improving the original. It's about using prior cultural references to say something new and relevant.
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The point is that the changes in language and culture by themself are not responsible for the death of the work.
The monetization culture will do the trick much faster, as to make changes in language and culture basically irrelevant.
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Re: Re: Re: Re: Retelling stories
Some things have value for a few days, or weeks, or years. Some of it preserves it's value by being part of a collection (like a newspaper article). Some things have lasting cultural value but no economic value, and some things have enormous economic value because they are unique and can't be copied (like paintings).
Unfortunately, copyright can only measure value in one way, so it's taken the most extreme stance that everything ever created has lasting economic value in order to protect the very few things that actually do have lasting economic value.
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Re: Retelling stories
This pretty much nails the problem the Doyle Estate is creating for itself.
I have personally seen stories (well, primarily the characters) and their creators sink into obscurity in the collective universe known as Creepypasta.
Money isn't an issue since the stories are published on the net for everyone to read (but many Creepypasta artists/writers will enforce their copyright over their creations in extreme circumstances), but the fact is: the characters in the creepypastas are not (in theory) supposed to be limited to just one single work, or even their original author. What gives those characters longevity is if more people start writing stories about them, keeping the characters relevant and spreading the word about their existence to an even greater number of readers.
I've seen a few characters pop up and then drop off the radar because the collective fandom/culture changed and forgot about them within a couple months.
Now while Sherlock Holmes might take decades or even centuries longer to disappear from modern culture than a bunch of characters that only a specific subculture knows about, a similar thing could happen to good great detective and dear old Watson if people stop retelling Conan Doyle's stories.
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Re: Retelling stories
More to the point, where would they be if the estate of 12th century writer Chrétien de Troyes demanded all rights and control over the characters he apparently added to the story (including, apparently, Lancelot and the Holy Grail) or if Geoffrey of Monmouth kept those he is purported to have added to the legend (including Merlin and Excalibur)?
You'd have to be a complete idiot not to see that culture and history would be far poorer without the works that were either adapted from or inspired by these characters.
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I think that future cases of copyright over characters should require the authors or estates to present the so-called infringed upon work to the courts.
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It's actually happened to a relatively well-known character in the Creepypasta universe (nobody's making money off the character, but the problem is still the same).
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Everybody wins!
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So the author doesn't win as he creates a setting and characters, and then loses out on sales as other people run with it before he can, then when he does come out with a new novel, few people care because other authors have run the brand name into the ground.
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You also develop problems like have cropped up in the Star Wars or Dragonlance franchises from time to time where one author develops a character, then another kills them off. One author writes a character as fairly intelligence and capable in most situations, and another writes them as an idiot that pretty much needs their hand held in similar situations. One author makes sweeping changes to the setting, and author authors are forced to abide by them.
And that's the problems that crop up when there is one central authority with the license to organize things. Just imagine the magnification of the problems if authors weren't forced to abide by the central authority and had a rift in where to take things.
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If you're arguing that the problem is some kind of "brand dilution," then copyright is the wrong tool for the job. The author might look into trademarking instead.
The fact that copyright law can be used to prevent derivative works is one of the really awful things about copyright at it exists nowadays. It is plainly clear that things like characters, set, and setting were specifically excluded from being copyrightable, and for very good reason.
Copyright is supposed to, and should, only apply to specific expression (the words used), not to ideas (the characters, etc.) When it gets applied to ideas, then the societal deal that is copyright has been violated, and that essential value of copyright itself is weakened.
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You massively increase the overhead, just to get (at best) the same protection that current copyright laws provide.
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Copyright, historically, is about preventing plagiarizing -- that is, taking someone else's words as your own. Producing an original work that is set in a universe someone else invented is certainly not plagiarism. Doing so should not be (and wasn't until the relatively recent rounds of copyright expansion) a copyright violation.
Trademarking the name a series? Sure, it's a bit more work, but it's not double. You only need to do it once for the whole series, after all.
"Protecting" characters doesn't seem like the sort of thing that should be allowed (there's no societal benefit to it). But if an author wants to be pigheaded about it, then making them go to the extra effort to qualify for a trademark doesn't seem like too great of a burden.
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I'm no copyright lawyer or historian, but I'm pretty sure that historically, copyright has included the characters of a work as well for quite some time. That's why Mickey Mouse is still under copyright, and not in the public domain. Setting is a bit weaker protected, but there's a reason you don't see a bunch of books published in the Star Trek or Star Wars universe that don't have official approval.
Protecting the characters has just as much societal benefit to it as protecting the work. Indeed, it's kind of critical if you want an author to produce a series rather than just a bunch of one novels. Otherwise you're basically saying that it would be a great thing for anyone to be able to use Darth Vader any way they saw fit once the first Star Wars movie was released. Or that anyone should be able to film a season of Game of Thrones using the same characters, as long as they changed the name of the series and wrote their own script.
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I disagree completely on this. I don't think it would affect a thinking author's decision one way or the other. But neither of us have any evidence, so this is just duelling opinions.
I am saying that. I do think that would be a great thing.
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Then that's likely the key divide between us. I find it quite reasonable for the original author to have large degrees of control over the non-parody usage of the stories, characters, and settings they create, during their lifetime. It keeps the person that thought up the ideas in the first place benefiting from their ideas, rather than having their ideas being unconditionally exploited by others. Similarly I find it reasonable for the control to be extended for a time after the author's death, as it gives those close to them the ability to keep just anyone from finishing the author's unfinished works (for example, Robert Jordan and the Wheel of Time series).
The problem I find is rights being transferred from the creators to large corporations, and the rights being extended for decades and decades past the original creator's deaths. There's a balance to be struck, and I don't think that balance is as simple as "everything is immediately in the public domain".
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While some might be annoyed by the 'profits' angle(depending on the person), from what I've seen, most authors are absolutely thrilled by people writing stories and creating characters in the universes they've created, as it means that they've created something to interesting, so engaging that people want to explore it even more, or write adventures involving the world they've created.
That's the fans saying 'You've made something cool and interesting enough that I want to be a part of it too', and you'd be hard pressed to find an author who really cared about the world/characters they've created, and the fans they've got, who didn't take that as the complement that it is.
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However I'm dubious they would be as thrilled if those fans were selling said works alongside their own original works.
That's the thing about fan fiction, and other fan works. They're derivative works, but they're generally speaking non-profit derivative works thanks to copyright. Remove that, and you've got A Song of Fire and Ice fanfiction turning up on Amazon searches for the series.
I also expect most authors are thrilled when someone wants to make a movie or TV show based on their books. I expect that nevertheless they still want a fair share of the profits of said movie or series. Many would probably want some sort of say in it as well, just to try and guarantee that the result would not be a travesty that shares nothing more than names with their series.
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You keep talking about what authors want and what makes authors happy as though that's the purpose of copyright law. It isn't. Do you have any argument that describes how prohibiting derivative works promotes the progress, grows the public domain, or otherwise benefits the public?
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No, I keep talking about what would protect the author's profits, and what would keep them producing new works. Part of that involves keeping the author happy.
I've already more or less stated one argument, but to restate and expand it, prohibiting for profit derivative works promotes progress as new author's have some assurance that if their work is successful they will benefit from it and control it. That's pretty much why the Copyright Clause of the Constitution reads "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." People that can't profit from their work have significantly less incentive to work.
Furthermore, preventing people from wholesale copying of characters and settings forces other would be creators to think of their own characters and settings. Thus rather than a million stories set in Middle Earth or Krynn, people have to come up with their own fantasy settings with it's own rules.
As for growing the public domain, it both encourages author's to write more material as they can be assured of profits from it's success, and encourage other authors to write their own works and expand a unique story into a far more broad genre.
Furthermore, as I said before, the problem is not that copyright keeps others from making derivative works, the problem is that the length of copyright keeps works from entering the public domain for longer than is reasonable. We would not even be having this argument if all of Arthur Conan Doyle's works had entered the public domain back in the 1980s.
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Totally agree with that. Almost all the problems of copyright would go away if it had a very short term.
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Even if true, that is not a reason to outlaw it.
It keeps the person that thought up the ideas in the first place benefiting from their ideas, rather than having their ideas being unconditionally exploited by others.
According to the idea/expression dichotomy, there should be no ownership of ideas and anyone should be able to use any ideas they want in any fashion they want. The derivative works doctrine turns that on its head though.
Similarly I find it reasonable for the control to be extended for a time after the author's death, as it gives those close to them the ability to keep just anyone from finishing the author's unfinished works (for example, Robert Jordan and the Wheel of Time series).
The public would clearly benefit more if people could finish those works, and that's supposed to be what copyright is about.
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When the result is an author having their work being commercially exploited by other the moment they publish it, yes it is. So you think that the MPAA members would pay one cent to the original author if they did not have to? That's one thing copyright currently prevents.
That's likely to simplify the question of what constitutes an idea and what constitutes an expression in literature is not always simple to define, and the derivative works doctor sidesteps the problem in most relevant areas, while protecting the original author.
And the family and publisher should not have the right to choose who finishes the works as in the case of the Wheel of Time? Who ever is the quickest to writer and publish their own ending should be the one to get to write the ending for the story?
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When the result is an author having their work being commercially exploited by other the moment they publish it, yes it is.
Authors finding something disheartening is not a reason to outlaw it, which is what I was responding to. And even the new point you just raised is only a valid concern for copyright if it decreases public access to creative works.
And the family and publisher should not have the right to choose who finishes the works as in the case of the Wheel of Time?
Why should they? They didn't create the works. What is the public benefit in keeping others from writing?
Who ever is the quickest to writer and publish their own ending should be the one to get to write the ending for the story?
No, anybody who wants to.
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They are the ones that know the author best, and how he would write best. His editor who he likely will have discussed the story with will likely be a family member or work for the publisher. The future direction of his story is something he has likely discussed with them. They will be the ones in possession of any notes or incomplete manuscripts. In short, they are the ones in the best position to see to it that the completion of the series is as close to what the author themselves would have written as is possible. If they cannot do the writing themselves, they are the ones best suited to pick an author capable of doing the job.
So you would prefer a dozen different authors, publishing dozens of books purporting to be the conclusion of a series, rather than a few books publish by a single author best able to finish the series the way the original author would have wanted, using material the original author left behind?
Or to put it another way, what best benefits the public when an author dies with a series unfinished? For the series to be finished by those best able to finish it the way the author would have finished it? Or for any one that cares to do so to make up their own ending regardless of whether or not it's remotely close to what the author would have written?
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Possibly, but I would imagine in many cases that is not true. Sounds like a sketchy assumption to base a copyright theory on.
So you would prefer a dozen different authors, publishing dozens of books purporting to be the conclusion of a series, rather than a few books publish by a single author best able to finish the series the way the original author would have wanted, using material the original author left behind?
I would rather copyright apply to expressions and not ideas. If characters are considered expressions, then so be it - no unauthorized sequels. People would have to make their own stories using whatever ideas they wanted, including ones from other series. Whether the author is living or dead doesn't really seem to matter.
Or for any one that cares to do so to make up their own ending regardless of whether or not it's remotely close to what the author would have written?
If copyright works the way it's supposed to, that's going to happen anyway, it's just a question of when.
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No, it's about preventing copying. I can copy without plagiarizing. I don't think even the Statute of Anne was about plagiarism, was it?
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I've been using hammers and nails for as long as I can remember, and now I have to use screws and a screwdriver? Plus, I hear they have TWO DIFFERENT KINDS of screwdrivers. Why should I have to massively increase my overhead when a hammer can already be used on nails and nail-shaped objects?
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Yes, Copyright and Trademark provide different but similar, though sometimes overlapping protections.
However right now, authors can get pretty much everything they really want in the way of protection, with just copyright. They don't have to worry about some movie studio making their own movie "based" on the author's book without the author's approval for example, as the name, story, characters, and setting are all effectively covered by copyright. They don't need to go and trademark each individual character to keep some studio from freely using a character without permission.
So to make an analogy more comparably to what is being suggested here, copyright is like having a power drill, with drill bits, and screwdriver heads. You can use it to drill holes in things, or to quickly and easily screw things in. What you are suggesting is to remove the screwdriver heads from the drill set, and force people to buy a separate screwdriver set instead. Requiring two screw drivers to do the same just as one reversible screw driver head, and doing the job less efficiently to boot.
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If they can also write as well as he can, great. More good fiction in the marketplace. If they cannot, then the original author can still compete on quality.
few people care because other authors have run the brand name into the ground.
If few people care about good literature, yes. You seem to think that fans will read every piece of crap fan fiction book that comes out and then be sick of it by the time the official sequel is released. From what I know of fans, that sounds extremely unlikely.
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you know why it doesn't matter? because if you are into the game of thrones, you know that only the RR version is the real one.
the other stories, the other art, the other creations have changed that exactly none.
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That's why they have no real impact on the real series, they simply aren't in a position to compete with it in any of it's marketplaces.
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Thus while it became competition, it couldn't impact the Twilight franchise the way it could if it billed itself as part of the franchise.
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And, more importantly, how is applying copyright to ideas not an abuse of copyright?
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Really, ultimately the problem here is not the copyrighting of characters and settings. That's gone on for quite some time now. The root probably here is copyright being held overly long past the death of the original creator to the point that most of a century later the works are not fully in the public domain. If all Arthur Conan Doyle's works entered the public domain 50 or 20 years after his death, this would not be a problem.
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That's not what I'm talking about at all -- and that problem is readily solvable without abusing copyright, by using the specific tool that was designed to address this issue of consumer confusion: trademark.
What I'm talking about is someone writing a story using the setting and characters of the Twilight universe, not someone engaging in fraud by claiming their story is the "latest book in the series".
A good example would be The Wizard of Oz books. There are a number of books written using the characters and setting of the Wizard of Oz that aren't part of the series. Nobody is confused by this, nobody counts these books as "canon", and the existence of these books do not detract from the originals (despite, in at least a couple of cases, being superior to the originals). In fact, my daughter read the originals because she read the non-canon "A Barnstormer in Oz" by Philip Jose Farmer and it got her interested in them.
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The thing is, right now the current implementation of copyright provides protections against that sort of abuse, often stronger protections than trademark does. You have yet to make a compelling argument as to why it would benefit authors to remove that existing protection, and force them to go to trademarks in addition to copyrights to obtain what is at best the same protection. I say at best because trademark generally has provisions about needing to use it or lose it, which can be rather vague in application.
What you're talking about there isn't particularly applicable to your argument that material should immediately be in the public domain. The original Wizard of Oz book is in the public domain, and the original author long dead. That's why it has the derivative works you speak of. It's actually quite comparable to the current situation with Sherlock Holmes. It's a public domain work, those derivative works you speak of your daughter reading do not harm the original author because he's already dead, much the way the various derivative works of Sherlock Holmes do not harm Arthur Conan Doyle because he's already dead.
The key thing there being that the original author's are dead. They cannot be harmed by derivative works because they're resting in a grave. That does not speak to how living authors attempting to publish new works would fair.
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The correct question to ask is whether it would benefit the public, not authors. Copyright (ostensibly) exists to further the public good, not to enrich or protect creators.
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It furthers the public good by ensuring that authors have exclusive rights to their work for a limited time, so that they will be sure to reap the benefits of successful works, thus encouraging people to make said works in the first place. Laws and courts have long held that those exclusive rights includes non-parody derivative works which is a pretty natural outgrowth of protecting parts of the works.
The problem is not the exclusive rights being granted, but that the length of that exclusivity has been extended to ridiculous lengths, and that copyright is increasingly transfered from individuals to corporations that had no role in the creation of the work.
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...and all of the events of the Red Wedding were just a dream.
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Derivative works
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With this view, any attempts to create something that references prior work in any way is simply a hack job not worthy of discussion. Conan Doyle is therefore the only person that can write about Sherlock Holmes (a creation of pure genius), and he's been dead for 83 years.
At this point, I'd love to see a list of all the things that Conan Doyle stole his ideas from.
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Re: Derivative works
Supposedly those ten non-linear short stories give Holmes skills he didn't acquire in earlier books retroactively. But what if you wrote a a fanfiction where he travels to the 24th and a half century, meets Duck Dodgers and acquires those skills in that future?
Suddenly, you have a Holmes who is NOT derivative of the ACD version (according to the Estate) who is also not covered by the copyright on those ten short stories. Oops.
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There are Limits
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I guess the Doyle estate
Of course, if that's true, it basically presents a way to make copyright on characters perpetual. You just need to have someone continue to release new works that have some minor change to the character, and they get to pretend you have a new starting point for the public domain ticker. That can't be what the law intended.
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We need someone from Jurisfiction to look into this. Thursday Next would be a good choice.
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Surely this is very simple
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Too late
They're complaining now? Holmes has been in kids' books, teamed up with Batman more than once, been in dozens of cartoons and several movies, and fought the Phantom of the Opera. I wouldn't be surprised if one version knew kg fu.
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Holmes takes a dump
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Re: Holmes takes a dump
When you're sliding into first...
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Maybe I understand less of the world than I though...
How can the characters be both incomplete and not a derivative from the first story.
If they are incomplete then by all reasonable logic they have to be derived from the initial story.
So if they are incomplete, then they are a derivative and there was existing case law pointed out to handle this.
If they are not derivatives, then every story should be considered independent which means the older works are clearly no longer covered under copyright.
I'm not a lawyer but seems to be if they want to use this argument they better pick which way they want to lose.
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And you think it's not already out there?
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Ha ven't read any of them, so I can't comment as to how good they are, but...they're there.
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Simple solution
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Conan Doyle Himself Did Not Try To Claim Ownership Of His Characters
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Really, *this* is the character they want to claim is endangered by multiple versions? A bit late aren't you?
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Chapters?
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The former.
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What happened to my take of the profits?
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Fracturing? They already are.
If someone reads the public domain stories but not the later retcons, they would see a different Holmes and Watson than if they just read those short stories and not the main body of the works of Sir Arthur Conan Doyle.
That also completely ignores the modern reimaginings of the characters...
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@ The Conan Doyle Estate
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