The Mystery Of The Copyright On Sherlock Holmes' Emotions Goes Unsolved Due To Settlement

from the unsolved-mysteries dept

Since this past summer we have been writing about a bonkers lawsuit brought against the makers of a Netflix movie, Enola Holmes, by the Conan Doyle Estate. The stories of Sherlock Holmes are, of course, largely in the public domain now, although roughly 10 tales still haven't reached the expiration date of their copyright protection. The film does not tell any of those protected stories. Instead, it tells an original story, focused on Holmes' sister, Enola. To make its copyright claim, the Estate instead suggests that Enola Holmes shows a Sherlock who has feelings and empathy, among other details, and therefore runs afoul of the character copyright as Sherlock didn't show such features until those still-protected stories were written. Also, something about Sherlock developing a liking towards dogs. Yes, seriously.

Well, Netflix moved to have the case dismissed, going in quite hard on the details of the Estate's claims. For starters, in Enola Holmes, um, no dogs. Added to that, the motion provides ample evidence of Sherlock having feelings and empathy prior to the protected works and that such ideas are not protectable anyway. The rest of us, meanwhile, waited patiently to see if the mystery of whether or not you could break copyright in this way could actually succeed in court.

Sadly, we'll never know, as reportedly Netflix and the Estate have reached a settlement.

Is a more emotional Sherlock Holmes protected by copyright? Although that's dubious, the mystery remains technically unsolved as Netflix, Legendary Pictures, and others associated with Enola Holmes have come to a settlement with the Conan Doyle Estate. On Friday, the parties stipulated to dismissal of a lawsuit in New Mexico federal court.

In response [to the suit], the producers blasted the suit as an "attempt to create a perpetual copyright," arguing in a motion to dismiss that generic concepts like warmth and kindness don't fall under protection.

The Conan Doyle Estate never took the chance to respond. Undoubtedly, its negotiating leverage would be stronger having defeated a dismissal motion, but the heirs to the author surely have their reasons for taking whatever they could in settlement.

As per usual, the details of the settlement were not released publicly. And while I'm sure readers here are sick and tired of hearing me complain about such opaque settlements, it is immensely frustrating when we get questions about protectable copyright elements where it would be nice to have some clear court rulings to not get any. Given what the Estate was up against based on the merits of its attempt to create perpetual copyright, it's hard to imagine it made out particularly well in the settlement, but for now all we can do is guess.

Filed Under: copyright, derivative works, enola holmes, sherlock holmes
Companies: conan doyle estate, netflix

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.

“From South Africa, sir, I perceive.”

“Yes, sir,” he answered, with some surprise.

And contrasts it with the following from Cullin's work:

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.

“There is a great deal of concern, I see, about your wife.”

“That is correct, sir,” he replied, visibly taken aback.

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.

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.

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.

Seriously? "Chalk cliffs" in the distance? A path down to the sea? These are not the things copyright is designed to cover.

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.

Filed Under: a slight trick of the mind, copyright, mitch cullin, mr. holmes, public domain, sherlock holmes, trademark
Companies: conan doyle estate, miramax

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

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

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?

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

Conan Doyle Estate Asks Supreme Court To Put Sherlock Holmes Back Under Copyright

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

For a while now, we've been following the lawsuit concerning whether or not Sherlock Holmes is in the public domain. Back in June the 7th Circuit appeals court ruled that Holmes was in the public domain, followed up by a more thorough slamming of the Sir Arthur Conan Doyle Estate in a follow-up ruling concerning rewarding attorneys' fees. We saw some reporters claim that the case was now "over," but that was clearly not true. The Estate had made it clear it intended to appeal, having already asked the Supreme Court to block the appeals court ruling from taking effect (a request that was quickly denied). But that was clearly the preamble to a request to the Supreme Court to hear the case.

That request has now come, with the Estate arguing that there are serious questions still in play. Specifically, the Doyle Estate raises three questions for a potential Supreme Court hearing. As a bit of background, the case was not directly started by the Estate, but rather author Leslie Klinger, who filed for declaratory judgment saying he wasn't infringing since the character was in the public domain. In the past, Klinger's publisher had felt pressured into taking out a license, and Klinger felt that this demand was unfair and unjust. The Estate tried to argue that even though all but one book of Holmes stories were published before 1923 (which puts them in the public domain), the fact that another book was published after 1923 with new facets to the character meant that the entirety of the character of Holmes (and Watson) were still covered by copyright. The argument was, more or less, that as long as the character is still "developing," and not complete, the copyright clock can be kept ticking. The courts completely rejected this argument and pointed out that the public domain is the public domain.

However, the Estate is making one last go of it, with a two-pronged attempt to get the Supreme Court to reconsider:

1. Whether it was reasonable to rule on the case prior to Klinger finishing his book. This is a bit of misdirection. The Estate argues that the case shouldn't have been decided until Klinger finished his book since you can't determine if something isn't infringing if it hasn't been produced yet. This question was easily dismissed by the courts because (1) the Estate had been agitating for a license already, and that had created publishing issues for Klinger and (2) the courts made it clear that they were just saying that the early works were in the public domain -- and if Klinger's eventual book infringed on anything from that final (still copyrighted) Holmes book, the Estate could bring a specific case on that issue.
2. The big question: whether or not a "dynamically developing character" can continue to extend the clock on copyright. Here, the Doyle Estate claims that there's a circuit split, in particular with a ruling from the 8th Circuit (which we covered here) concerning the Wizard of Oz (and people making t-shirts out of images from a movie poster that clearly was in the public domain). Admittedly, that was a terrible decision -- effectively allowing some reclamation of the public domain by copyright law. If the Supreme Court takes this case, hopefully it will be to just smack down that 8th Circuit decision and bring it into compliance with the 7th Circuit's point that things that were in the public domain stay in the public domain.

The Supreme Court is not always clear in indicating which cases it will take and which it will pass over, and I wouldn't recommend betting in favor of the Court taking this case. Chances are it will pass. However, if it does take on the case, hopefully it will only be to protect and preserve the public domain.

Filed Under: 7th circuit, 8th circuit, copyright, leslie klinger, public domain, sherlock holmes, supreme court, wizard of oz
Companies: conan doyle estate

Appeals Court Uses Bogus Sherlock Holmes Case To Slam Copyright Trolling For License Fees, Suggests Antitrust Violations

from the could-be-worth-paying-attention-to-this-one dept

Back in June, we wrote about how the 7th Circuit appeals court, in a ruling written by Richard Posner, totally rejected the Sir Arthur Conan Doyle Estate's ongoing attempt to claim copyright over the character of Sherlock Holmes, even though everyone knows that all but 10 Holmes stories are in the public domain. The Estate asked the Supreme Court to put a stay on the ruling, which was quickly rejected, though it's still expected that the Estate will ask the Supreme Court to review the entire case (which the court seems unlikely to take).

In the meantime, Posner has again ruled on the case, concerning the plaintiff (remember, it was a declaratory judgment suit against the Estate), Leslie Klinger, and his request to have his attorneys' fees paid. The court grants the request but also uses the opportunity to trash the filing of bogus lawsuits around intellectual property with the hope of getting someone to pay up a small fee. In short, he bashes copyright and patent trolling pretty broadly in the ruling. Posner has been fairly vocal about his concerns with the patent system and patent trolling, but he clearly sees how it applies to copyright trolling as well. This ruling might be somewhat useful to those dealing with copyright trolling case (especially in the 7th circuit...).

Posner highlights a few recent papers about copyright trolling, and how troubling it is:

Copyright holders, the authors explain, have larger potential upsides and smaller downside risks to filing suit, since if they win they obtain damages but if they lose they don’t have to pay damages (although a loss, especially if recorded in a published opinion as in this case, may make it more difficult for them to play their extortionate game in future cases). So copiers or alleged copiers may be “induced into licensing [that is, paying a fee for a license to reproduce] the underlying work, even if this license is unnecessary or conveys non-existent rights."

He uses the example of the song Happy Birthday, which is currently involved in litigation, in a case that we've argued has some similarities to the Sherlock Holmes case. It's good to see Posner see the parallels. From there, he notes why it's so important to award attorneys' fees in these cases, otherwise trollish behavior will continue:

Unless Klinger is awarded his attorneys’ fees, he will have lost money—to be precise, $25,679.93 ($30,679.93 – $5,000)—in winning an appeal in which the defendant’s only defense bordered on the frivolous: a Pyrrhic victory if ever there was one.

And then, the bigger smackdown occurs:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.

This is why fee-shifting and attorneys' fees are so damn important in both patent and copyright trolling cases. It's too bad that this year's patent reform bill was killed over this, just because some short-sighted trial lawyers hate fee shifting. Posner rightly explains just why it's important. Without it, it allows this extortion (and thank you to Posner for directly calling it that) to continue over and over again, because the cost of fighting back is just too high.

Posner also makes one other point that doesn't directly impact other trolling cases necessarily, but is interesting. He suggests that the Conan Doyle Estate may be playing with antitrust fire for abusing a "monopoly" it has no legitimate right over:

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the antitrust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser.... This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

In the end, the court tells the Estate to pay up $30,679.93 in legal fees to Klinger, which just covers the cost in the appeals court. Klinger is still seeking more for the cost of the district court ruling as well.

Filed Under: attorneys fees, copyright, fee shifting, leslie klinger, richard posner, sherlock holmes, trolling
Companies: conan doyle estate

Supreme Court Tells Conan Doyle Estate To Take A Hike: Consider Sherlock Holmes In The Public Domain

from the well-that-didn't-take-long... dept

Well that did not take long at all. We just wrote about the Sir Arthur Conan Doyle Estate begging the Supreme Court to issue a stay on the appeals court ruling that determined (easily) that Sherlock Holmes was in the public domain. The Conan Doyle Estate wanted the Supreme Court to issue a stay on the decision while it prepared an appeal. That stay would effectively block the publication of the book that Leslie Klinger was planning -- which was at the center of the lawsuit.

Justice Elena Kagan, who received the request for the stay from the estate has already rejected it with no comment or explanation. She did so without consulting with her fellow justices or without asking (or waiting) for a filing from Klinger. She has every right to just make this decision, but it certainly suggests that the Supreme Court (well, at least Kagan) finds the appeals court ruling to be quite persuasive, and is not at all convinced the estate has a legitimate argument. I'm sure that the estate will still ask the Supreme Court to rehear the case, but at least this initial response suggests that the Supreme Court is not interested. Chalk up another (small) victory for the public domain.

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

Conan Doyle Estate Asks Supreme Court To Step In And Block Sherlock Holmes From Being Public Domain'd

from the a-curious-case dept

In February of last year, we wrote about author/lawyer Leslie Klinger suing the Conan Doyle Estate for demanding a license for his latest book about Sherlock Holmes. An earlier book that Klinger had published about Holmes had resulted in his publisher paying the estate a license, but Klinger felt he didn't need such a license for the latest book. Nearly all of Sir Arthur Conan Doyle's Sherlock Holmes works are in the public domain (published before 1923), but there is one remaining book of a bunch of stories called The Case-Book of Sherlock Holmes which was published after 1923 and is still in copyright. Klinger insists his own latest book would only pull from the public domain works, but the Doyle Estate made the amazing argument that it could effectively keep the characters of Holmes and Watson locked up forever by claiming that each new work added another layer to the character in an ongoing fashion, and the clock would start anew each time.

This reasoning got rejected quickly by the district court, and last month an appeals court ruled (strongly) against the estate, making it quite clear that the basic characters are very much in the public domain. As the court noted, the estate doesn't get to make up copyright law the way it would like:

We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors...

The court seems completely unpersuaded by the Conan Doyle Estate's ridiculous fear that (*gasp*) if Holmes goes into the public domain, some people might create different versions of him. That's actually kind of the point of the public domain. That's what's supposed to happen.

Well, wouldn't you know it? The Conan Doyle Estate is not giving up, and appears poised to take this to the Supreme Court. It has started out by asking the Supreme Court to stay the appeals court ruling (basically blocking the publication of the book) until the estate can ask the Supreme Court to hear the full case. The estate's argument is about as silly as you'd expect. Basically, it insists that because Klinger has not handed over his entire work, it can't be declared to be non-infringing, and thus his publication should be blocked. The Estate is actually flipping the equation (without admitting it). It's correct that to show infringement, you first would need to examine the work, but here it's actually demanding that a negative be proven. It's demanding that Klinger present his final work to prove that it doesn't infringe. That's silly. If Klinger's final work does infringe, then the estate can bring it to court. The question Klinger's original lawsuit addressed was more straightforward: so long as he relies on the public domain works as his source material, there shouldn't be anything that infringes. And two courts have agreed with him.

Hopefully the Supreme Court rejects this, which would also likely mean that it will reject the eventual appeal from the estate as well. However, if Justice Kagan (who is handling these kinds of requests) decides to grant the stay, then we could be in for another round and another chance for the Supreme Court to dig in on copyright issues. Given its past record -- especially on the public domain -- this might be a dangerous thing.

Filed Under: copyright, elena kagan, leslie klinger, public domain, sherlock holmes, sir arthur conan doyle, surpreme court
Companies: conan doyle estate

Once More, With Feeling: Sherlock Holmes Is In The Public Domain

from the elementary dept

Over the last few years, we've been covering the declaratory judgment lawsuit trying to establish that Sherlock Holmes is in the public domain. As explained, nearly all of the stories about Holmes were published prior to 1923, making them public domain in the US. However, there was one book with ten stories published after 1923, and those works are still covered by copyright, thanks to our nutty system of copyright extensions. Some Sherlock Holmes scholars/authors, Leslie Klinger and Laurie King, filed for declaratory judgment after the Sir Arthur Conan Doyle Estate threatened the publisher of their upcoming book (after successfully pressuring a previous publisher) that Sherlock Holmes is still covered by copyright and a license must be obtained. Klinger argued that he wasn't using anything from those works that were published post-1923.

While the Doyle Estate ignored the start of the case, after initially losing, it suddenly became interested arguing that the "character" of Holmes was not complete, and thus the new works somehow magically could extend backwards in time to keep the older versions out of copyright. Furthermore, it argued that in a world where Holmes is in the public domain, something horrible like others creating "multiple" versions of Holmes might happen (even though that's exactly what the public domain is supposed to enable). While there was some confusion, the judge didn't buy the Estate's argument, and found Holmes and his sidekick Dr. Watson to be in the public domain.

The Estate appealed, and got the unfortunate honor of having Judge Richard Posner handle the case, which he has done quite thoroughly, completely dismantling the Estate's arguments in affirming that Holmes and Watson belong to everyone, and not to the Estate. The key line:

We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors...

Posner notes that while the ten stories published after 1923 (it's not fair to call them "new") are derivative works of the original, and the only thing protectable in those are the "original elements added" in those later stories. Everything done before that is public domain.

Posner has little time for the Estate's wacky theory of how much "harm" would come from people actually making use of a Sherlock Holmes in the public domain, by accurately recognizing that it is the public domain that often inspires tremendous new creativity.

The estate offers the hypothetical example of a mural that is first sketched and only later completed by being carefully painted. If the sketch is allowed to enter the public domain, there to be improved by creative copiers, the mural artist will have a diminished incentive to perfect his mural. True; but other artists will have a greater incentive to improve it, or to create other works inspired by it, because they won’t have to pay a license fee to do so provided that the copyright on the original work has expired.

Posner also destroys the rationale of the Doyle Estate in which they have a made up concept of "flat" and "round" characters, where "round" characters are continually added to through newer and newer works, and the characters are never fully complete because of all that adding. Posner notes that this whole thing has nothing to do with copyright law:

The estate defines “flat” characters oddly, as ones completely and finally described in the first works in which they appear. Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us.

Posner further points out that, for all the talk that the Estate is worried about the harm of "new" versions of Holmes it doesn't like, in truth it seems clear that the Estate just wants to get paid. Finally, Posner notes that this appears to be an attempt to create a perpetual copyright, which violates the "limited times" aspect of the Constitution:

With the net effect on creativity of extending the copy-right protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would vio-late the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.

That seems like a rather useful line given the likelihood of a copyright term extension fight coming up in the next few years...

Filed Under: arthur conan doyle, copyright, laurie king, leslie klinger, public domain, richard posner, sherlock holmes
Companies: conan doyle estate, perseus books

Judge Says That Sherlock Holmes Is In The Public Domain

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

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.

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

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.

Filed Under: arthur conan doyle, copyright, dr. watson, leslie klinger, public domain, sherlock holmes
Companies: conan doyle estate