Sherlock Holmes copyrights are an insane hairball

Robbo sez, "The Independent Filmmaker Project has a great post examining the nonsense which continues to surround Sir Arthur Conan Doyle's most loved character, Sherlock Holmes (now 125 years old) , and whether he resides not just at 221B Baker Street - but also in the public domain."

According to the lawsuit all the Sherlock Holmes stories entered the public domain under the laws of the United Kingdom and Canada in 1980. However, with the passage of the U. S. Copyright Act of 1976 the author of a work that had passed into the public domain in the United States, or his heirs, were entitled to restore the work to copyright in the United States under certain conditions. In 1981, Dame Jean Conan Doyle, the last surviving child of Sir Arthur Conan Doyle, applied for registration of the copyright to “The Case-Book of Sherlock Holmes,” a collection of stories. This work is comprised of 12 stories that were first published in various periodicals between 1921 and 1927, and the collection was first published as a book in the United States in 1927.

The complaint asserts that the Doyle estate sent a letter to Pegasus Books threatening to prevent publication of “In the Company of Sherlock Holmes” unless it was paid a license fee. Kingler’s prior publisher, Random House, had reluctantly paid $5,000 fee for an earlier Klinger collection he edited titled “A Study in Sherlock,” even though Klinger believed he was not legally required to do so. The suit asks the court to make a declaratory judgment, establishing that the basic “Sherlock Holmes story elements” are in the public domain under U.S copyright law. Klinger claims that the stories in his new collection avoided drawing on copyrighted elements introduced in any of the Holmes stories published after January 1, 1923.

In a 2004 decision, a U.S District court judge Naomi Reice Buchwald determined that of Doyle’s 60 Sherlock Holmes stories, nine might still be under copyright.[2]Although the character of Sherlock Holmes is in the public domain, various storylines, dialogue and characters that first appeared in these nine stories could be protected under U.S. copyright law. A copyright for a derivative work based on a prior work does not create copyright protection retroactively for the underlying work but can protect new material that has been added.

Attentive readers will remember last month's post about the scholar who is suing the Holmes estate over this question.

Sherlock Holmes and the Case of the Public Domain [Mark Litwak/IFP]

(Thanks, Robbo!)


  1. Y’know, this should be simple: Characters or stories X years old are in the public domain.  If I didn’t know any better I’d swear this whole system was set up to make using the public domain as legally tricky as possible while ensuring that creators’ estates get the most money possible.

    1. And for one-off stories it usually is that simple, except for he whole never ending copyright thing. But it gets trickier for series.

      For a modern example, let’s take Star Wars. At some point in the future A New Hope will enter the public domain while Empire Strikes Back still has a few years on it. So, for those few years the basic characters and setup will be public domain but the details and developments of the sequel will still be protected. So any derivative works would be unable to reference the reveals about the Skywalker family or Carbonite or Hoth or the expanded universe at all. In fact, even though “Star Wars” would be public domain a massive amount of what people associate with the franchise would not be.

      Personally I don’t think it would be possible to make something that would be reconizably Star Wars without stepping into material that would still be copyrighted.

      1.  The example I like is Superman, since it is closer to happening and the publishing history of Superman now spans eight decades. But I guess the Star Wars example is nice, since most people will already know what happened in Empire, while with Superman, I have to start listing all the things like kryptonite, Lex Luthor, flying instead of just leaping over tall buildings and people don’t always realize these elements weren’t there from the start.

        1. I read some of the first issues and was really surprised how different he was back then. Lois Lane didn’t show up until maybe a year later.

        2. The superman example also has a bunch of complicating factors with the multiple creators and work for hire issues along with the layers of copyright law that has been passed since it was created.

          Star Wars is just a cleaner example.

      2. So lets make copyright reasonable, like 30 years after you’ve written an item. Then, like Star Wars, where there’s an active ongoing franchise by the original creator, the copyright would be tricky.  But don’t do anything with the franchise for 30 years? Public domain. 

      3. It depends if the characters are trademarked (a good example of a trademarked character is Mickey Mouse). Then, so long as the rights holder maintains the trademark, no one else can use the characters even if the copyright on the original material has expired.

      4. All wrong. Now that Disney owns the rights Star Wars will never fall into the public domain.

      5.  Don’t forget: Lucas trademarked pretty much everything in every scene and every significant name or item or word of dialogue and trademarks are forever if I am not mistaken.

      6. Trademark protection is more difficult to obtain, and more expensive, but it can last indefinitely.

  2. Gah! Copyright as a means for ensuring a creator ever has to work again? Absolutely fair play.
    As a means of ensuring that their grandchildren never need to lift a finger. Beyond crazy.

    1. No, that was never the point. The whole purpose of copyright was to encourage people to produce works for the public good. 

      If the idea was you write one thing and never have to work again, you, the person who has demonstrated the ability to produce works, would have no further incentive to continue contributing to the public good. That is both against the general idea and commonsense. 

    2. A 96-year-old woman just published a memoir that got mentioned in some fairly notable papers this past week.  If copyright were a lifetime-only thing, her publisher might not have been willing to risk bringing out the book, since while she’s in pretty good health, there’s always the chance that she won’t live long enough for them to make a profit. 

      On the other hand, having copyright last until 99 years after the bankruptcy of the Walt Disney company isn’t really the right thing either.

      1. As opposed to, say having copyright adhere to a fixed number of years.  If you also had a requirment that the date it was published be written on the work, you could tell AT A GLANCE if the copyright had expired.  Too bad nobody ever thought of that / vicious sarcasm

  3. This is ridiculous. Storylines should not be copyrightable. The specific wording of a story? Sure. But not the plot.

  4. The situation would be straightforward except that the Conan Doyle Estate (which represents some heirs, and has a tangled history as noted) is asserting copyright and trademark theories that no copyright expert I have spoken to agrees with.

    In essence, they’re saying that because of the later stories (10 by most accounts) that remain under copyright because of later publication in the United States, you can’t treat Sherlock Holmes as a completely developed public domain character. That those 10 stories are part of what makes him. Which is absurd and will eventually be disproven in court, no matter how you feel about copyright issues, as there is no theory upon which to rest such a defense. Copyright covers only the words and, sometimes, unique elements that occur in stories.

    Trademark doesn’t cover anything to do with Holmes *generically*. If it were established that, somehow, a trademark remains from the original stories, it has to be proven in different countries, and, further, it is only for very specific things, like a deerstalker hat related to detectives, or some such. There is no way to protect by trademark the *notion* of a detective with certain characteristics, only very specific elements associated with very specific products or services in cases in which the use of trademarked elements would confuse people.

    The estate has used the uncertainty about copyright to make it easier to license than to dispute. One could argue that for a movie about Sherlock Holmes, it’s more sensible for the film makers to pay a few hundred thousand dollars in case they unintentionally use an element from one of the 10 copyrighted stories and then have to go through an infringement lawsuit.

    But for Klinger and King, they have carefully determined that their riffing stories don’t infringe, and I like that Klinger has finally had enough

    If he gets a declaratory judgment, that means there will be no standing for the estate to pursue such licensing agreements in this fashion in the future, as future courts would find that they had engaged in activity already found unsupported.

  5. I believe that anyone intending to exploit, say, the Star Wars corpus after the expiration of copyright is going to face trademark restrictions–or at least Paramount lawyers brandishing same. I think Edgar Rice Burroughs may have been the first writer to trademark his characters, though I wonder about how trademark interacts with copyright (or lack of same) when the “product” is a story or film–is it only the packaging (that is, the title) that is affected? Could one write a Tarzan story, naming Tarzan in the text, but not be able to put the name in the title? I keep following this angle because it’s an inevitable conflict between two realms of protection/regulation of intangible economic resources. Maybe not unlike the notion of exclusive sales territories.

  6. Our company made two Sherlock Holmes casual video games and nobody here tells tales of it being a particularly difficult experience licensing it from the Doyle estate.

    1. Well no. It’s only in the Doyle estate’s interest to make it difficult if you DON’T give them the money.

      If there are 51 Sherlock Holmes stories in the public domain and only 9 that are still owned by the Doyle estate, this guy is arguing that he doesn’t owe anything for using those first 51.

  7. They’re apparently quite wonderful to work with from all accounts, and the fees they charge are not insane for the kind of work it is.

    The trouble is: unless you need specific aspects of the 10 U.S. still-in-copyright stories, you shouldn’t need to work with them at all!

    1.  Sounds like they are being smart:  Charge enough less than the cost of litigation for your licenses and most folks won’t bother with trying to litigate no matter how good a case they have.

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