Harvard University Library Confirms That Digitized Versions Of Public Domain Works In Its Collection Remain In The Public Domain

Supreme Court Refuses To Hear Sherlock Holmes Case: Holmes Is Now (Mostly) Public Domain

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

Mon, Nov 3rd 2014 9:06pm — Mike Masnick

This isn't a huge surprise, but the Supreme Court has declined to hear the case concerning whether or not Sherlock Holmes is in the public domain. As many news sites are reporting, this more or less means that the character of Sherlock Holmes is considered public domain. It's not quite that simple, of course. Technically, all but the last book of Sherlock Holmes works (covering a few stories) is in the public domain according to the 7th Circuit appeals court. That means the character attributes that are new in those last works are not in the public domain. Also, conceivably, a similar challenge in another circuit could lead to a different conclusion, which might lead the Supreme Court to eventually weigh in another time. But, for now, it's mostly safe to assume that the basic character is in the public domain.

So, now, who's going to create some awesome new Sherlock Holmes stories?

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Filed Under: copyright, leslie klinger, public domain, sherlock holmes, supreme court
Companies: conan doyle estate

44 Comments

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That One Guy (profile), 3 Nov 2014 @ 7:41pm

On paper vs In practice
But, for now, it's mostly safe to assume that the basic character is in the public domain.

On paper perhaps, but in practice, what's to stop the estate from going after someone who they claim is infringing on something from the last book with one of their creations? Keep in mind going to court, innocent or not, is prohibitively expensive, so even if someone was sure they would win, they might still be pressured to pay up or fold.

If Sherlock Holmes really is in the public domain, the estates' entire purpose, and, more importantly, revenue stream, is gone, kaput. As a result, they have absolutely no reason to ever stop fighting this, and every reason to keep doing so.
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Anonymous Coward, 3 Nov 2014 @ 9:15pm

Re: On paper vs In practice
Ah, but this ruling only applies to the United States.

International copyright law...well, that is anything but elementary.
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Dave Cortright (profile), 3 Nov 2014 @ 9:44pm

Rule 39 FTW!
I'm sure someone can work up a story with a lot of homoerotic tension between Holmes and Watson.
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G Thompson (profile), 3 Nov 2014 @ 10:07pm

Re: On paper vs In practice
Indubitably!
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Anonymous Coward, 3 Nov 2014 @ 10:11pm

Disney of course
Then it really will be locked up again
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cpt kangarooski, 3 Nov 2014 @ 10:25pm

Re: On paper vs In practice
Well, in the US, they'd have to sue for infringement, and the victor in such a suit can obtain repayment of the fees and costs from the loser. This works even for a victorious defendant. And with precedents this strong, the likelihood of a defendant winning are pretty good. And then there are countersuits for things like tortious interference. And a lawyer would have a difficult time indeed of even representing the estate in the suit to begin with, due to the various responsibilities we have to not bring frivolous suits.

It wouldn't be a big concern.
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Anonymous Coward, 3 Nov 2014 @ 11:47pm

"So, now, who's going to create some awesome new Sherlock Holmes stories?"

Maybe someone with the money to fight against a well-oiled legal machine. Perhaps Disney could easily pull it off. The sad part is that Disney has often taken public domain stories and essentially made them its own property, thereby discouraging anyone else (who is not equally deep pocketed) from sharing in the same *technically* public domain work that Disney now (and forever more) considers its own trademark. That's why anyone of lesser means who wants to even get close to a 200-year-old long-since-out-of-copyright Brothers Grimm story had better tread very lightly.

http://www.slotstemple.com/wp-content/uploads/2014/08/miss-white-300x150.jpg
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That Anonymous Coward (profile), 4 Nov 2014 @ 12:09am

Re: Rule 39 FTW!
Rule 39: CAPS LOCK IS CRUISE CONTROL OF COOL.
how does that apply?

Perhaps you meant rule 34 and 35.
Rule 34: If it exists, there is porn of it. No exceptions.
Rule 35: If porn of it (whatever "it" is) cannot be found, then porn of it will be made.
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David, 4 Nov 2014 @ 12:15am

Re: Rule 39 FTW!
Elementary, my dearest Watson.
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robenss (profile), 4 Nov 2014 @ 12:17am

Mr. Watson :D
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Anonymous Coward, 4 Nov 2014 @ 1:31am

So, now, who's going to create some awesome new Sherlock Holmes stories?

BBC did: http://www.bbc.co.uk/programmes/b018ttws
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Anonymous Coward, 4 Nov 2014 @ 1:36am

Re: Re: Rule 39 FTW!
Sherlock never said that in the original works.
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Anonymous Coward, 4 Nov 2014 @ 2:24am

Re: Re: On paper vs In practice
Unfortunately it is all to easy to use legal threats as a bullying tactic, up to and including issuing subpoenas without an intent to follow through. Consulting a lawyer, and getting them to reply to a threat costs money and time, and it is difficult to recover costs if the case never makes it to court, and not guaranteed if it does. This is what the trolls rely on, by asking for less that what it will cost to fight them.
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Ninja (profile), 4 Nov 2014 @ 3:13am

Oh my God! Mr Doyle will be deprived of money to spend in the afterlife! Think of the artists!
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Anonymous Coward, 4 Nov 2014 @ 4:27am

Re: Re: Re: Rule 39 FTW!
I tried to make a joke in response to this... but I failed. So I'm just going to have to settle with ruining the next few hours of your life with this:

http://tvtropes.org/pmwiki/pmwiki.php/Main/BeamMeUpScotty

You're welcome.
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G Thompson (profile), 4 Nov 2014 @ 5:23am

Re: Re: Rule 39 FTW!
I'm scared now cause it seems that "That Anonymous Coward" exists!

o.O
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Dave Cortright (profile), 4 Nov 2014 @ 5:45am

Re: Re: Rule 39 FTW!
Right, 34 and 35. But I thought it was funnier to go straight to furry porn.

"We must find the hound of the Baskervilles, Watson. I have a curious desire to rub my naked body all over its luscious fur."

Cue cliché music: Bow-chicka-wow-wow
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Anonymous Coward, 4 Nov 2014 @ 6:07am

Re: On paper vs In practice
"...what's to stop the estate from going after someone who they claim is infringing on something from the last book with one of their creations?"

Nothing, except they have to prove the infringing elements are particular to the last book ONLY.

For example, anyone can write about Watson's first wife, or Watson meeting and courting someone after becoming a widower.
HOWEVER, they can't mention his second wife, nor use her name as the woman he would be courting.
Got it?
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Dave Cortright (profile), 4 Nov 2014 @ 6:43am

Re: Re: Re: Rule 39 FTW!
I guess the source I was referencing wasn't the same as yours.
http://www.urbandictionary.com/define.php?term=Rule%2039
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Dave Cortright (profile), 4 Nov 2014 @ 6:46am

Re: Re: On paper vs In practice
Not exactly true. One could make up their own 2nd wife and equally have courting involved. Copyright doesn't prevent one from using the same ordinary concepts.
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Anonymous Coward, 4 Nov 2014 @ 6:49am

Why is Copyright so much longer than Patents?
Why is a copyright so much longer than a patent? The original purpose of copyright was to force works into the public domain. Copyright, in its barest form, has NOTHING to do with how artists get paid, who get royalties, etc.

I believe that copyright was originally 34 years, including one extension. Perhaps we should extend patents so that they both last the same time period.
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Sheogorath (profile), 4 Nov 2014 @ 6:54am

So, now, who's going to create some awesome new Sherlock Holmes stories?
Well, I'm not going to blow my own horn and say that they are 'awesome', but I've written two Sherlock Holmes oneshots that you can read here, and I've been careful to state that they're based on the books as opposed to any of the movies or TV series.
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Sheogorath (profile), 4 Nov 2014 @ 7:02am

Re:
The BBC is in the UK, where the entire Sherlock Holmes canon was in the Public Domain from 1981-1996, then from 2001 to the present day. *facepalms*
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Anon, 4 Nov 2014 @ 7:17am

Precisely!
In the USA, land of litigants, recovering lawyers fees when you win is not that common. This is what drives their excessive litiginous society, there's no downside to losing - especially if the lawyer works on commission (contingency). It's also what makes trolling possible, even a slam-dunk case could cost tens of thousands, so it's often cheaper to settle.

[from *Laverne and Shirley* ]

Annoyed boyfriend: "If I give you a quarter, will you go away?"

Iggy: "why would I go away from someone who's giving me money?"

The 7th court only covers some of the area around Chicago. It's a precedent there, only an optional guideline or related case in the rest of the USA. So the trick for the Doyles is to figure out which circuit court would be most sympathetic and file in that jurisdiction, hope to get a contrary ruling and leave it up to the Supreme Court to decide which circuit is right.
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Pragmatic, 4 Nov 2014 @ 7:27am

Re:
Yeah, this will have a major chilling effect on new creative works being, like, created, and everything, by zombie authors!
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Anonymous Coward, 4 Nov 2014 @ 7:28am

I always liked Maurice LeBlanc's workaround - his bumbling detective antagonist is Holmlock Shears, who interferes with Lupin's plots alongside his overweight and dull assistant Wilson.
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John Nemesh, 4 Nov 2014 @ 8:11am

New Sherlock Holmes stories...
Maybe you should reference the Star Trek: TNG Episodes which featured Moriarty (and Data as Holmes). Or the CBS show "Elementary", or the (ugh) Benedict Cumberbatch show...among MANY MANY others. What about "The Great Mouse Detective" from years back? Holmes has appeared NUMEROUS times over the past several years in film and television.
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PRMan, 4 Nov 2014 @ 9:54am

Re:
They can't do anything about them, which is why when they sold Beauty and the Beast on DVD, there were 2 crappy ripoff versions right next to it to confuse Grandma into buying the wrong one.

There's a reason why Disney's latest fairy tales are named "Tangled" instead of "Rapunzel" and "Frozen" instead of "The Snow Queen". The wannabes can't put out their own versions and call them "Tangled" or "Frozen" because then it's obvious they are copying.
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PRMan, 4 Nov 2014 @ 9:56am

Re:
I'm pretty sure he doesn't need any money where he went...
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PRMan, 4 Nov 2014 @ 9:56am

Re: Why is Copyright so much longer than Patents?
14 years + 14 year extension.
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Anonymous Coward, 4 Nov 2014 @ 10:22am

Re: Rule 39 FTW!
Conan Doyle already did that..and the works are in the Public domain..

If its change you want, you have to make Sherlock and Watson get it on victorian-style....
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Chris Brand, 4 Nov 2014 @ 11:10am

Re: Why is Copyright so much longer than Patents?
The basic answer is "because a patent is so much more restrictive". In theory, a copyright only prevents literal copying of the expression, whereas a patent restricts any implementation of the idea, even if somebody came up with it independently.
Unfortunately, the courts aren't very good at distinguishing ideas from expression.
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silverscarcat (profile), 4 Nov 2014 @ 2:21pm

New Sherlock Holmes?
Isn't there some Batman crossovers with him?
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That Anonymous Coward (profile), 4 Nov 2014 @ 3:09pm

Re: Re: Re: Rule 39 FTW!
and there is porn of it... :D
*that disturbing serene smile that lets your mind fill in the awkward silence with visions that terrify*
and it was all of that and more.
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That Anonymous Coward (profile), 4 Nov 2014 @ 3:22pm

Re: Re: Re: Re: Rule 39 FTW!
there are several variations out there, but a few of the rules retain their place across several lists.
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Anonymous Coward, 4 Nov 2014 @ 4:49pm

Re: New Sherlock Holmes stories...
and of those, how many had to pay a huge licence fee to create the new work?
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Anonymous Coward, 5 Nov 2014 @ 3:38am

No shit Sherlock
and the case of the bottomless outhouse
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Anonymous Coward, 5 Nov 2014 @ 7:40am

Re: Re: Re: On paper vs In practice
If one invented their own second wife for Watson, they're creating an "alternate universe" version since the Doyle-created second wife is canon.
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Anonymous Coward, 5 Nov 2014 @ 7:43am

Re: Re: Why is Copyright so much longer than Patents?
"...whereas a patent restricts any implementation of the idea, even if somebody came up with it independently."

Not quite.
patent restricts use of the technique/equipment/formula specifically-patented.
How many different can openers are there?
They all open cans, but they do it differently.
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Anonymous Coward, 9 Nov 2014 @ 9:35am

Re: Re:
Frankly, I don't want a Hollywood version of Sherlock Holmes. To many terrists and way to many bullets.

Please let the BBC apply for worldwide copyright. Quick! Think of the children.
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JeffJeremy (profile), 14 Jun 2018 @ 2:46am

So, now, who's going to create some awesome new Sherlock Holmes stories?
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JeffJeremy (profile), 14 Jun 2018 @ 2:50am

So, now, who's going to create some awesome new Sherlock Holmes stories? Well, I'm not going to blow my own horn and say that they are 'awesome', but I've written two Sherlock Holmes oneshots that you can read here, and I've been careful to state that they're based on the books as opposed to any of the movies or TV series. http://slotsspot.com/news/
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Lic Marcos, 23 Jan 2019 @ 6:24am

I'm sure someone can work up a story with a lot of homoerotic tension between Holmes and Watson. https://onlinecasinodaily.co.uk/
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Lora (profile), 30 Apr 2020 @ 8:01am

Frankly, I don't want a Hollywood version of Sherlock Holmes. To many terrists and way to many bullets with https://kaszinomaxi.com/blackjack/ and whores
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