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

Arthur Conan Doyle Estate Sued To Show That Sherlock Holmes Is Public Domain

from the go-get-'em dept

A little over three years ago, we had a discussion concerning whether or not Sherlock Holmes was in the public domain. By our understanding of the law, the character absolutely is in the public domain. There is one remaining book -- The Case-Book of Sherlock Holmes -- which contains a few stories that are still covered by copyright, but the characters and most of the written works are in the public domain. However, the legal representatives of the Sir Arthur Conan Doyle Estate use the fact that one book is still held under copyright to argue that the character is still protected until (at least) 2023. Of course, as with things like Happy Birthday, even if it should be in the public domain, if there's some corporate entity insisting that it's covered by copyright, you'd have to go to court to prove otherwise. And most people don't want to bother.

Thankfully, that just changed when it comes to Sherlock Holmes. Sherlock Holmes scholar, Leslie S. Klinger, was working on a book (with Laurie R. King) called In the Company of Sherlock Holmes, detailing "major mystery/sci-fi/fantasy authors inspired by the Holmes tales." However, the Conan Doyle Estate contacted their publisher, Pegasus Books, demanding a license fee, and saying if they weren't paid, they'd make sure that no major distributors would sell the book. Specifically, the estate directly threatened that:

If you proceed instead to bring out Study in Sherlock II unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

Like too many publishers, Pegasus freaked out and refused to publish the book at all, so Klinger has taken it upon himself to file for declaratory judgment. You can see the full filing posted here (and embedded it below).

The lawsuit points out that Sherlock Holmes characters have long been in the public domain, and even that remaining book of stories includes two that are clearly in the public domain, as they were published prior to 1923. But, most importantly "none of the Sherlock Holmes Story Elements first appeared in any of the stories that were collected in The Case-Book of Sherlock Holmes." In other words, the entirety of copyright protected elements in the character were published outside of that one book, and are now in the public domain.

The lawsuit also notes that Klinger and King's publisher on an earlier book, A Study in Sherlock, did, in fact, pay a license to the estate, but they did not concede any of the legal arguments. When the estate threatened Klinger, he correctly explained that no license was needed, but he's still dealing with the fallout from his publisher getting cold feet. Thus, he's asking the court to state, definitively, that the character is in the public domain. Kudos to Klinger for taking this on. We need more people willing to stand up for the public domain. Also, jeers to Pegasus for not being the one to take this on and for freaking out over the bogus threat.

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

Maybe Failing Faster Is Really The Way To Go

from the books-now-limited-to-140-pages dept

We're always on the lookout for new experiments in media publishing, so keep on submitting relevant links, folks. So here's another one. Trying to target a "gap" between magazines and books, the Daily Beast and Perseus Books Group are teaming up to publish books in just 2-4 months, giving authors 1-3 months to write and then publishing the work a month later as an e-book (and then in paperback). These books are aiming to be 40,000 words long, or around 150 pages -- which sounds like a Twitter-like limit, designed to encourage authors to produce stories that are more topical and timely. And on the logistical side, these publishers are going to use the sales of the e-book titles to help anticipate how many paperback editions to print.

It's an interesting experiment because it begins to grasp that digital goods can be used both to promote content and also to assess the market for the related tangible/scarce goods. On top of that, the shorter publishing cycle will likely be more engaging to readers who won't have to wait very long for new books to come out. However, there are some possible pitfalls, too. If the e-books are too expensive (or poor quality because they're written in a rush), then obviously the promotional aspect of the digital content won't be there. They could also soon discover that their target audience is too tuned into digital goods, and the audience that buys printed books doesn't overlap much with Daily Beast readers (so they'd need to promote on a different channel). But at least the publishers won't be stuck with a ton of printed books in inventory, so the downside risk seems lower than traditional publishing. And, actually, that reduced risk might be the key part of this publishing plan. When digital distribution costs are minimal, the strategy of "throwing everything at the wall to see if it sticks" becomes more viable. The Daily Beast's website already leverages free content with news and opinion articles, so if it can also offer unique content with a quicker turnaround time, the reason to buy its books could surface as more and more "good" authors are discovered and recommended -- and commissioned to produce new content.

Filed Under: books, ebooks, publishing, speed
Companies: daily beast, iac, perseus books