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.

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!

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.

(Quick, Watson, the memory-erasing ray!)

Really, I think you mean the Doyle estate.

Star Wars is just a cleaner example.

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.

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. 

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.