Judge Says That Sherlock Holmes Is In The Public Domain

from the but-this-isn't-over-yet dept

Mon, Dec 30th 2013 8:34am — Mike Masnick

Almost exactly four years ago, we had a discussion on the curious case of Sherlock Holmes and the public domain. As we explained, nearly all of the books and stories by Sir Arthur Conan Doyle were published prior to 1923, putting them clearly in the public domain in the US. However, there was one remaining book of ten stories that was published after 1923, and still covered by copyright. Because of that, the Conan Doyle Estate has argued that Sherlock Holmes, Dr. Watson and a variety of other facets of the stories remained covered by copyright because those remaining works were still covered. This goes against a lot of case law, but rather than challenge this, plenty of publishers, filmmakers, TV producers and the like have just lined up to pay the Estate to avoid having to go to court.

Finally, back in February, a couple of authors/scholars of Holmes filed for declaratory judgment to have a court declare that Holmes, Watson and a variety of other key "elements" were in the public domain. The Conan Doyle Estate flipped out, arguing that the character isn't done until all works have been published, and thus the clock on the public domain doesn't start ticking until the last work is published. It further argued, bizarrely, that it would be absolutely horrific if, somehow, Holmes made it into the public domain, because it would create "multiple personalities" as the public might (gasp!) actually do stuff with Holmes. As we pointed out at the time, that's kind of the point of the public domain.

And, indeed, a judge has now ruled on summary judgment in the case, saying that Holmes, Watson and a variety of story elements published prior to 1923 are, in fact, in the public domain. The judge was not impressed by the arguments from the Conan Doyle Estate:

Conan Doyle argues that the effect of such a holding will be to dismantle Sir Arthur Conan Doyle's characters into a public domain version and a copyrighted version.... This is, however, precisely what prior courts have done. Silverman and Pannonia Farms instruct that characters and story elements first articulated in public domain works are free for public use, while the further delineation of the characters and story elements in protected works retain their protected status. Conan Doyle argues that the precedent exemplifed in Silverman should pertain only to two-dimensional, "flat" characters and not to complex, three-dimensional characters such as Sherlock Holmes and Dr. Watson.... Conan Doyle fails to offer a bright line rule or workable legal standard for determining when characters are sufficiently developed to warrant copyright protection through an entire series, nor does it provide any case law that supports its position. Conan Doyle's proposed distinction runs counter to prevailing case law.... The effect of adopting Conan Doyle's position would be to extend impermissibly the copyright of certain character elements of Holmes and Watson beyond their statutory period, contrary to the goals of the Copyright Act.

There was a second issue at play here -- concerning certain story elements that were first published in those post-1923 stories, which the authors hoped would be declared in the public domain as well, basically by arguing that the "elements" were not things that could be covered by copyright in the first place. As is made pretty clear by the judge's ruling, Leslie Klinger, who brought the suit, did a pretty bad job of making this particular part of the case, ceding arguments that probably shouldn't have been ceded, and failing to fully develop the argument. The judge therefore rejected that part, but it's possible those elements could be subject to further review assuming the rest of the case moves forward.

There was one other part of the ruling that was somewhat important. In our post about the the Conan Doyle Estate's response, we noted that the Estate tried to argue that every work after the initial Sherlock Holmes story should not be considered a "derivative work," so various case law concerning derivative works should not apply. As we noted, there was no legal basis for this, and the only real reason the Estate seemed to come up with was that it was somehow insulting to suggest later works were "derivative." Thankfully, the judge rejects that argument as well.

Of course, the Conan Doyle Estate is not done fighting. Not only has its lawyer said that the Estate is "exploring an appeal," but also hinted at using trademark law to stop other attempts at using the characters. Stay tuned on that front...

Still, this should be seen as a victory for the public domain. Wednesday is "Public Domain Day," as January 1st is the date around the globe that new works enter the public domain. As we've noted repeatedly in the past, the US hasn't had an actual public domain day in many, many years, thanks to constant copyright term extension. So it's nice that Judge Ruben Castillo at least gave a tiny slice of the public domain back to the public.

Klinger Order on Motion for Summary Judgment C (PDF)Klinger Order on Motion for Summary Judgment C (Text)

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Filed Under: copyright, public domain, sherlock holmes
Companies: conan doyle estate

30 Comments

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That One Guy (profile), 30 Dec 2013 @ 6:42am

Missing lines?
'Thankfully, the judge rejects that argument as well: '

I'm guessing another excerpt from the ruling was supposed to be included after this line.
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That One Guy (profile), 30 Dec 2013 @ 6:49am

Perpetual copyright duration
So, unless I'm mis-reading this:

'arguing that the character isn't done until all works have been published, and thus the clock on the public domain doesn't start ticking until the last work is published.

... had the judge bought their argument on that part, that would have left a barn-sized loophole in copyright duration, where as long as the 'estate' that got ahold of the copyright continued to pump out books involving the characters, say by hiring some other writer to 'continue the story', they'd be able to keep the older works under essentially permanent copyright, where they'd never be able to enter the public domain, because the 'story, and the characters in it, weren't finished'.

Glad the judge shot that down, and hopefully any appeals will likewise rule on the side of sanity and the public.
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Arsik Vek (profile), 30 Dec 2013 @ 7:00am

Re: Perpetual copyright duration
Worse than that. They'd only have to promise another book was coming.
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Anonymous Coward, 30 Dec 2013 @ 8:58am

Re: Perpetual copyright duration
If they translate a public domain book, the courts have ruled that the translation gets a new copyright. So there are still loopholes that allow perpetual copyright duration.
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Anonymous Coward, 30 Dec 2013 @ 9:00am

No wonder our justice system is failing. We're arguing over whether something some dead guy wrote 100 years ago is in the public domain or not. The courts seem to forget that copyright is "for the author" and not for the author's great grandkids who are too lazy to get off their asses and do something on their own.
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cpt kangarooski, 30 Dec 2013 @ 9:00am

Re: Re: Perpetual copyright duration
But nothing stops people from using the original, if it's in the public domain, or from using older translations in the public domain. So this is not so bad.
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Kevin H (profile), 30 Dec 2013 @ 9:09am

Sherlock
I believe that the idea of Sherlock Holmes should be a prime example of what CAN happen when you allow people to expand upon an idea. With successes like the movies feat. RDJ and Jude Law, Elementary (US/CBS), and Sherlock (UK/BBC fucking love this show) people should recognize the good that comes from opening up. A new generation of kids, and adults are now falling in love with the characters and my son even asked me to get him the original stories.
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John Fenderson (profile), 30 Dec 2013 @ 9:13am

Where's the incentive?
If Sherlock Holmes is in the public domain, then where is the incentive for Arthur Conan Doyle to write new ones?
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Luke A, 30 Dec 2013 @ 9:20am

Re: Where's the incentive?
I hope that was sarcasm : )
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Anonymous Coward, 30 Dec 2013 @ 9:23am

Re: Where's the incentive?
Dead and buried!
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MrWilson, 30 Dec 2013 @ 9:24am

Re: Where's the incentive?
Even if ACD could rise from the grave and write more, I'm pretty sure he'd refuse, just to make sure that his petty, greedy descendants stopped shitting on his legacy for money. At least, I'd hope he'd be so inclined. I would.
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Internet Zen Master (profile), 30 Dec 2013 @ 9:46am

Re: Re: Where's the incentive?
Actually, I wouldn't mind if he wrote more books, but only if he somehow managed to cut those greedy parasitic jackasses at the estate out of the picture first.
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LAB (profile), 30 Dec 2013 @ 10:03am

Applaud the decision and hope the appeals, if any, are unsuccessful.
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Anonymous Coward, 30 Dec 2013 @ 10:06am

Re:
But copyright is not supposed to be "for the author". It's a deal with the author for the PUBLIC. However, the holders keep pushing to change the deal so that the "for the public" part never happens.
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Anonymous Coward, 30 Dec 2013 @ 10:35am

Re: Re: Perpetual copyright duration
Well, that would only cover the new book and not the old stories in the original language. If the book contained characters and events, the new book would not change the copyright on those specific story elements.

Copyright is ridiculously complicated. This ruling does little to clarify the shape of it since the Conan Doyle Estate was arguing from such an incoherent legal theory (or even lack of such!).
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ken (profile), 30 Dec 2013 @ 10:55am

They may have to get jobs now.
Maybe they will actually have to get jobs now rather than feeding off of someone else's work or maybe they could actually start earning the money for once by writing their own versions of Sherlock Holmes. Anything they write would be copyrighted but only the new stories themselves and not the characters.
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ken (profile), 30 Dec 2013 @ 11:02am

Dead people need no incentives
Dead people need no incentives to write books so copyrights beyond death is a disincentive for more works. It is really just a way for non creative to leach on to someone else's work and keep others from expanding it.
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Anonymous Coward, 30 Dec 2013 @ 11:06am

Re: Re:
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.

Check again.
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DandonTRJ (profile), 30 Dec 2013 @ 11:26am

Of course, the Conan Doyle Estate is not done fighting. Not only has its lawyer said that the Estate is "exploring an appeal," but also hinted at using trademark law to stop other attempts at using the characters. Stay tuned on that front...

Yeah, good luck with that.
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Anonymous Coward, 30 Dec 2013 @ 11:46am

Re: Re: Re: Where's the incentive?
In fact, that sounds like a terrific plot for another Sherlock Holmes book�
A dead author comes to life to pen more mysteries�.
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Karl (profile), 30 Dec 2013 @ 12:01pm

Re: Re: Re:
Check again.

I checked. Did you miss this part?

To promote the Progress of Science and useful Arts

That is the sole purpose of copyright. Granting exclusive rights to authors is its method, not its purpose.
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RadialSkid (profile), 30 Dec 2013 @ 12:05pm

Re: Re: Re: Re: Where's the incentive?
You wrote the plot to a Holmes book? I hope you paid the estate the licensing fees!
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LAB (profile), 30 Dec 2013 @ 12:27pm

Re:
So on point, thanks for that.
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Rikuo (profile), 30 Dec 2013 @ 1:27pm

Re: Re: Perpetual copyright duration
Wait...translating a public domain book merits a copyright? How does that work? Wouldn't that be merely a factual translation e.g. translating 'Je suis' to 'I am', with little to no creativity involved? I thought works of mere fact weren't eligible for copyright due to the rejection of sweat-of-the-brow.
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cpt kangarooski, 30 Dec 2013 @ 1:39pm

Re: Re: Re: Perpetual copyright duration
Translations often involve creative effort, eg rewording idioms so that they can be understood by the new audience. If I tell OOTB to get bent, a literal translation is likely not going to convey what I really meant. And sometimes supplementary notes are needed. Eg in Japanese, there are separate first person singular pronouns depending on gender. In the absence of other cues, a translator might need to add a note or totally rewrite a passage to indicate to an English speaker what gender a character in a book is, when it would be immediately understood by a native reader.

A very simple translation might not qualify, but it's not hard to go beyond simple projects. Look at how many versions of the Bible there are.
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Anonymous Coward, 30 Dec 2013 @ 2:28pm

Re: Re: Re: Re:
by securing for limited Times to Authors

Did you miss this part? Copyright is only intended for the author, not their grandchildren. That was my original point. I understand the purpose you are getting at, but I'm trying to convey that our founders did not intend to lock up works for multiple generations.
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Anonymous Coward, 30 Dec 2013 @ 5:02pm

Re: Re: Re: Where's the incentive?
Didn't Doyle hate the character to the point he killed Holmes off in one story, then brought him back with a bunch of stories of dubious quality compared to those before?
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Karl (profile), 30 Dec 2013 @ 9:57pm

Re: Re: Re: Re: Re:
Copyright is only intended for the author, not their grandchildren.

I do see your point. (Apologies for not recognizing that you were the same AC that made the original post.)

Still, the point stands, and it does actually provide a rationale for providing copyright past the death of the author. The monopoly privileges are granted not just as an economic incentive to create, but also as an economic incentive to publish.

So, if copyright did not survive the original author, then heirs would lack that incentive to publish posthumous works. Also, publishers would be less likely to deal with authors who are nearing the end of their lives, since they know that any monopoly they could be assigned would only be economically enforceable for a few years.

But I wholeheartedly agree that copyright lasts way too long. Frankly, even the lifetime of the author may be too long. Inventors aren't granted such a lengthy term when they hold a patent, and I don't see why authors should be treated any differently.
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Karl (profile), 30 Dec 2013 @ 9:57pm

Re: Re: Re: Re: Re: Re:
Still, the point stands

...uh, my point, I mean.
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Samuel Abram (profile), 31 Dec 2013 @ 9:14am

Re: translations
Excellent point. As a linguist, I can tell you that literal translations don't serve the reader the translated language. As an example, Imagine if you translated the floating island "Laputa" from Jonathan Swift's Gulliver's Travels into Spanish!
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