Sherlock Holmes And The Case Of The Never Ending Copyright Dispute
from the and-here-we-go-again dept
For the last few years, we've been covering a long (now complete) saga concerning the status of the copyright on Sherlock Holmes. A few years ago, we wrote about the odd state of the copyright according to the Conan Doyle Estate -- which insisted that the character was not in the public domain in the US (even as it is in the public domain in many other countries). That's because, while nearly all of Sir Arthur Conan Doyle's works were published long before 1923, a final set of 10 stories were published after. The Estate erroneously argued that as long as any part of Sherlock Holmes was under copyright, all of it was. In 2013, a scholar of Sherlock Holmes sued the Estate to argue otherwise. And despite the silly fears of the Estate, both the district court and the appeals court rightly explained how copyright law works to the Estate, noting that all of the early works are in the public domain, and the only copyright that may be maintained is in the marginal creative additions in those final 10 works. The appeals court even went so far as to argue that the Estate was abusing antitrust laws in demanding fees from everyone. And the Supreme Court refused to review the case.And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes' retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that's now been adapted into a film called Mr. Holmes, being released by Miramax.
First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:
The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself.And that's where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes' retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story "Blanched Soldier":
It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions.And contrasts it with the following from Cullin's work:
“From South Africa, sir, I perceive.”
“Yes, sir,” he answered, with some surprise.
As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where— from his vantage point—I became obscured by the brightness of the outside light, and he—from mine—was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him.Certainly a similar setup, but is it infringing? That's where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover "a character." After all, copyright is supposed to only protect the specific expression, rather than the idea. That's why it's never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character's perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original.
“There is a great deal of concern, I see, about your wife.”
“That is correct, sir,” he replied, visibly taken aback.
However, if we're going to be honest and say that copyright only protects the specific expression, then passages like the one above should not be protected by copyright. The Cullin version is not a reproduction of the original. Other elements that the Estate argues Cullin copied are even more tenuous:
This story, “The Adventure of the Lion’s Mane,” significantly develops the fictional world of Holmes’s later life. In this story Conan Doyle created original details such as the lonely farmhouse in which Holmes lives on a ridge overlooking the English Channel, with chalk cliffs visible in the distance and a path down to the sea.Seriously? "Chalk cliffs" in the distance? A path down to the sea? These are not the things copyright is designed to cover.
Along with other copyrighted stories, “Lion’s Mane” also adds important traits to Holmes’ character. For example, in his later years, living in the countryside instead of London, Holmes comes to love nature and dedicates himself to studying it. Other copyrighted stories give Holmes in his later years a personal warmth and the capacity to express love for the first time.
Cullin took these and many other protected elements of setting, plot, and character in A Slight Trick of the Mind. Cullin has Holmes living in a lonely farmhouse on a ridge over the Channel. Chalk cliffs are visible in the distance and a path leads down to the sea. Holmes’s love of nature and developing ability to express love are central to Cullin’s story.
There are lots of other sketchy aspects to the lawsuit as well. The book came out ten years ago. The statute of limitations on copyright is supposed to be three years, but there are disagreements over what those three years means -- does it mean you can only get compensated for infringements from the past three years? Or does it mean you can't sue at all after three years have passed?
Separately, there are venue questions, given that the lawsuit was filed in New Mexico... on the basis that Cullin grew up there and studied Sherlock Holmes there. But he doesn't live there any more (and the Estate is in the UK). It seems like careful jurisdiction shopping by the Estate.
That said, given the way these cases normally work out, it won't be at all surprising if the court sides with the Estate. People still have this visceral feeling that "if inspired too directly by this copyrighted work, it must be infringement." That's unfortunate, given how much of human creativity is based on people building off the works of one another.
And... finally, we'd be remiss if we didn't mention that the Estate is also pulling out its other big gun here, arguing trademark infringement as well, rather than just copyright infringement:
The Estate has developed common law trademark protection for SHERLOCK HOLMES for the above goods and services—including motion picture and television series—by virtue of its consistent licensing of its mark. Every major motion picture and television production in the past thirty years using SHERLOCK HOLMES has been released in the United States in association with the Estate, from Lorindy Pictures’ 1981 television movie series Sherlock Holmes, Paramount Pictures’ 1985 movie Young Sherlock Holmes, and Granada’s 1989 television series Sherlock Holmes, to Warner Brothers’ current Sherlock Holmes movies and the BBC’s Sherlock. Because of its widespread use in connection with Estate-licensed motion pictures and television series, SHERLOCK HOLMES has tremendous power as a source identifier of the Estate.While this might appear to be an even stronger claim, that's not necessarily the case either. The famous Dastar v. Fox saw the Supreme Court shoot down an attempt to use trademark law to try to lock up a work in the public domain. In that ruling, the Supreme Court (written by Justice Scalia) noted:
To hold otherwise would be akin to finding that [trademark law] created a species of perpetual patent and copyright, which Congress may not do.But, this might not be quite the same situation, if the Estate is focused on arguing about the works still under copyright, rather than those in the public domain.
Of course, there's a separate argument to all of this, which is that at the time that the original copyrights were granted for those last ten works, the longest that anyone could have expected them to last was 56 years, and by any reasonable consideration, all of the Holmes stories should be in the public domain. But, alas, Congress has decided to retroactively extend copyright again and again, and the Supreme Court has decided that's okay.
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Filed Under: a slight trick of the mind, copyright, mitch cullin, mr. holmes, public domain, sherlock holmes, trademark
Companies: conan doyle estate, miramax
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Wait... zombies are fiction?
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good this this estate keeps publishing new works
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Trademark
When we say that trademark cannot be used to create a perpetual copyright, this means that once a work like a Sherlock Holmes story reaches the public domain, anyone can copy and distribute that original story. But the trademark claim here could still prevent others from writng new Sherlock Holmes stories... as long as the original mark holder continues to use the mark in trade.
In other words, as long as the owner of the Sherlock Holmes trademark continues to create new content with the mark, as they are doing by licensing the mark for movies, then the mark should be protected. This is what IP is supposed to do: encourage creation of new works.
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Re: Trademark
I don't see how a trademark here is encouraging anything here, and I'm ignoring the fact that the purpose of trademark is not to encourage the creation of new work but to protect consumers from brand confusion.
The estate has simply gotten used to big movie studios paying up to use Sherlock Holmes, and the studios don't question it because paying up for rights is simply how they do business. They can't imagine a world where everyone isn't paying up for the rights to everything ever created, which is why they can't fathom the internet.
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Re: Trademark
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Re: Trademark
The purpose of trademark isn't to encourage the creation of new works at all. Which is a good thing, because it doesn't do that.
The purpose of trademarks is consumer protection: to prevent people from producing products that deceive people into thinking that they're buying someone else's product.
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Re: Trademark
Trademark to me (IANAL) means a mark, for trade. Young Sherlock, modern day Sherlock, "Without A Clue" Sherlock, etc. - these are not the character being copyright. Our image of him is more the Basil Rathbone roman-nose-and-magnifying-glass guy.
At what point does the name rather than a visual representation become a trademark? We know Coca-Cola because it refers to a drink which, despite other flavours hints, at its core it is a fizzy brown drink with a specific flavour. Nobody would associate Coke with a virgin margarita or strawberry ice cream. Mickey Mouse is the round black guy with the squeaky voice, not Ratatouille. Similarly, the Sherlock estate does not market any specific identifiable "product" other than the name and "detective", hardly an original combination, given that the name is now in the public domain.
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So if there's a series of books called "Sherlock Holmes and the X", I could see preventing others from having similar titles, to prevent confusion.
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Of course, the really ironic part is that fans are often more likely to produce good expanded material that's faithful to the brand than what gets produced under the current licensing regime on many properties -- as any kid who has received a crappy licensed videogame or a hastily-made straight-to-video movie of a favourite cartoon from a clueless but well-meaning relative knows very clearly.
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Re: Trademark
Do all characters constitute brands? And since we're talking about trademark, I assume we're just talking about the character's name or some other identifying mark — so can nobody re-use any character name? Obviously that's absurd, but then - where precisely is the line drawn? Can I write another book that uses Sherlock Holmes as a character so long as his name isn't on the cover or on the dust-jacket, because then I'm not selling based on his brand? Or conversely, can I write a book with a character that is exactly Sherlock Holmes just with a different name? Can I have other characters in the narrative comment on how he's just like Sherlock Holmes and then start calling him that as a nickname?
It's just too crazy a can of worms. I do see a role for more trademark-like stuff, but it would be about ensuring there's no confusion as to who created a work - and frankly I think that could eliminate the need for all sorts of copyright. So while I could, say, write a story with Harry Potter in it, even as a main character, there would be limits to prevent me from passing that book off as a new Rowling-penned entry in the series. Perhaps that means she is solely allowed to label Potter books "Official" or use some specifically worded brand-tag like "A Harry Potter Novel", or perhaps it even means that I would need to label mine "Unofficial".
Because really, once the chance of authorial confusion is eliminated, what real reason is there that anyone should be prevented from re-using characters, even current ones?
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Re: Trademark
The existence of such a trademark is a burden on the creation of new works, as this very lawsuit demonstrates, since all new works inspired by the original works are forced to endure the shakedown of an estate that contributes nothing to the creation process. The estate is creating an unofficial tax on anyone who wants to use the original works.
"as long as the owner of the Sherlock Holmes trademark continues to create new content with the mark, as they are doing by licensing the mark for movies, then the mark should be protected."
This is a contradiction right here. Licensing the mark for movies is the act of a parasite, not a creator. They're not creating works themselves. What stories have members of the estate written? What movies have they scripted, produced, directed, and/or acted in?
Just because the estate holds a few copyrights on the last non-PD works about Sherlock Holmes doesn't mean they should be allowed a trademark on the character, anymore than a random person should be allowed a trademark on a popular meme or trend. That's opportunism, not artistic creation.
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Re: Re: Trademark
"all new works inspired by the original works are forced to endure the shakedown of an estate that contributes nothing to the creation process"
But the original author did clearly contribute something -- in this case, the Sherlock Holmes property itself. That's not nothing.
The underlying point here -- which nobody else has raised, so thank you for this -- is that the current owners of the estate (presumably the descendants and other heirs and assigns of Conan Doyle) didn't do jack to earn their ransom demands, other than "choose" the right... is it great-great-great-grandparent that we're up to now? Or further?
I wonder if there's anyone else who finds it as curious as I do that the very same people who howl the loudest about "unproductive people" getting "unearned taxpayer-funded government handouts" are often exactly the same people most vociferously and aggressively defending the "sacred private property rights" of people three and more generations removed from anyone who did anything at all to generate ideas, efforts, or wealth of any kind?
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Re: Trademark
A character cannot be copyrighted, but a work that includes a description of a character can be, such that it can be infringing to describe the same character elsewhere. This basically amounts to the same thing. Of course the copyright status of the character hinges on the status of the works in which it is described.
Whether or not trademarks are available depends on other factors. A single character in a single work is not trademarkable on that basis.
When we say that trademark cannot be used to create a perpetual copyright, this means that once a work like a Sherlock Holmes story reaches the public domain, anyone can copy and distribute that original story. But the trademark claim here could still prevent others from writng new Sherlock Holmes stories... as long as the original mark holder continues to use the mark in trade.
Wrong. Which leads us to the reason that the estate has no viable trademark argument. A trademark can only function of it can serve as a source identifier. That is, a customer must be able to expect that all so marked goods or services ultimately originate from a common source and have consistent levels of quality.
Enough of Holmes is in the public domain that anyone can make Holmes stories and put them on the market. That means that there cannot be an expectation of a common source and standard quality. Hence, no mark.
Now the Holmes character could be used as a mark in something wholly unrelated to the stories, just as PETER PAN is a public domain character used as a mark for bus services and peanut butter. But that's no help here.
In other words, as long as the owner of the Sherlock Holmes trademark continues to create new content with the mark, as they are doing by licensing the mark for movies, then the mark should be protected. This is what IP is supposed to do: encourage creation of new works.
That's not the purpose of trademark.
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Re: Trademark
The trademark has to be shown IN USE on products/merchandise in whatever classification (books/toys/clothing/dvd-bluray/etc) within a (IIRC) three-year period or it becomes abandoned.
Just registering a trademark is nothing if it isn't actually used.
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heirs
Article 1, section 8, clause 8 of the US Constitution states:
"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."
...limited times to the Authors and Inventors...
It does not state decedents or any other person or entity. The copyright clause is part of the US Constitution and the only way to change it is via a constitutional amendment, not an act or bill. "Limited time has always been disputed, but who the copyright applies to is crystal clear. So technically, when the author or inventor of a creative work dies, the copyright should die with the author or inventor.
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Re: heirs
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That doesn't extend the duration of the copyright.
The clock continues running from the initial date.
It doesn't restart if the copyright's transferred.
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I've given this some thought
There really is no reason to extend copyright beyond the death of the creator. Orphaned works should also be stripped of copyright and fall into the public domain.
I think we need some real copyright reform. We won't go back to the original terms, but I think 5 14-year terms (not automatically renewed) are perfect. That gives a term of 70 years, which is already too long, but *somewhat* closer to the limited term provided by the Constitution.
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I've given this some more thought
Noone would sign a million dollar movie screenplay deal if it meant they had to watch out for hit men sent to save someone some royalty money..
70 years seems excessive, it is less in most of the world.
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Homage, not infringement
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Just how honest are we being, if we claim that copyright "only" protects a specific exception, and neglect to mention that it also grants an exclusive right to the creation of derivative works?
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Also that expression is very close to the original text. Minor word variation is not a viable defense.
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About that movie
And did anyone else notice that all of the infringement claims mention the book, but not the movie?
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According to the estate's website, the US agent is based in Evanston, a suburb of Chicago.
And the estate is suing in New Mexico. I'll let you do the math.
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No trademark issues
The name and the character are now in the public domain. Something is afoot, Watson.
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Be nice to the estate, they don't have much longer to live...
Of course, if it were up to me...we'd never get to this point because the copyright would have expired long before Sir Doyle did.
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1923
These are some things that happened in 1923. It was a LONG time ago.
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Time Magazine is launched on March 3rd
The Hunchback of Notre Dame, starring Lon Chaney is released.
Women's One Piece swimming suits begin to be worn.
The Ten Commandments directed by Cecil B. DeMille.
First Le Mans 24 hour race run in France.
The first Yankee Stadium opens its doors in the Bronx, New York City
The Hollywood Sign is inaugurated in California (originally reading Hollywoodland)
Roy and Walt Disney found The Walt Disney Company
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I don't know how long copyright should last, but it should be a lot shorter than it is now.
You could still buy a NEW Ford Model-T from Ford when these last ten stories were published for crying out loud.
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A matter of incentives
That's the only source of money for those parasites, so of course they're going to do everything in their power to maintain what control over it they can manage, the only other alternative is to be forced to find real work, instead of leeching off of the works of a corpse.
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- Leslie S. Klinger, editor of THE NEW ANNOTATED SHERLOCK HOLMES
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Theft
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> the sea? These are not the things copyright is designed to
> cover.
If chalk cliffs in the distance ARE the intellectual property of Sir Arthur Conan Doyle's estate, someone ought to inform the UK government that they are in violation, and need to tear down their coast line.
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Estate Disputes and Intellectual Property
http://www.hackardlaw.com/blog/2015/07/suspicions-of-elder-abuse-linger-after-mockingbird-sequel-rel ease.shtml
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