Home » Copyright/Intellectual Property » Arthur Conan Doyle Estate Now Being Sued to Settle Whether Sherlock Holmes is in the Public Domain

Arthur Conan Doyle Estate Now Being Sued to Settle Whether Sherlock Holmes is in the Public Domain

17 February 2013

From The Digital Reader:

As you probably know, the vast majority of the Holmes stories are old enough that they are no longer in copyright in the US. (The author died in 1930, so his entire body work is public domain everywhere but the US.) In the US you can legally download nearly any of the Holmes stories from sites like Project Gutenberg. If you wanted to, you could then format the stories as ebooks or bind them into a paper book and sell the stories. This is completely legal.

But according to the Conan Doyle estate, one thing you cannot do is write a new story that features Sherlock Holmes. There is exactly one remaining Conan Doyle book, The Case-Book of Sherlock Holmes, that still contains copyrighted Sherlock Holmes stories – 10 stories, in fact. Because some of the original stories are still in copyright in the US, the estate believes that they can control who writes new stories. They are using that control to collect fees from publishers, studios, and anyone with deep pockets.

. . . .

US copyright law protects a work as a whole, not the elements in a work.

. . . .

If the elements of a story can be copyrighted and not the work as a whole, then all of the Sherlock Holmes stories that have entered the public domain include a copyrighted element. If the Holmes character is still under copyright then arguably you cannot do _anything_ to _any_ of the Holmes stories. They all mention a copyrighted element and thus cannot be used.

Link to the rest at The Digital Reader

Copyright/Intellectual Property

21 Comments to “Arthur Conan Doyle Estate Now Being Sued to Settle Whether Sherlock Holmes is in the Public Domain”

  1. Under that theory couldn’t the estate have an author do a few stories as ‘works for hire’ and extend the copywrite another 70+ years?

  2. Besides fan fiction, which I can appreciate, I’ve never understood why a writer would want to use somebody else’s characters rather than their own. Unless it is just to make a quick buck on the back of somebody’s else’s brand, hard work and imagination. If so, they deserve everything they get.

    • Two words: Hollywood.

      Oh, wait, that’s only one word. Quick, someone: What is a word that means ‘never had an original idea or reasonable hand-drawn facsimile thereof in their entire existence, and their whole modus operandi and raison d’être is to make a quick buck on the back of somebody else’s brand, hard work, and imagination’?

      I mean, my goodness gracious me. If Hollywood weren’t permitted to use Sherlock Holmes without paying a royalty, that would be the end of civilization as we know it! Just as if anybody were permitted to use Mickey Mouse without paying a royalty, that would be . . . er . . . the end of civilization as we know it.

      No, there is no contradiction or illogic here. The principle in either case is the same: What Hollywood wants, Hollywood gets.

    • There are many Movies, TV shows, Plays(stage and radio), computer games etc. featuring Sherlock Holmes. It’ not just people writing fan fiction.

    • Homage to a well-known fictional personage.

    • I suppose at some point you can make new art based on an old property– allusion. A new twist on Alice in Wonderland, a remake of a Shakespeare play to put modern relevance on the story, etc.

    • Whereas, I can understand it completely. Writers tend to start as readers first and tend to fall in love with other peoples worlds and characters from an early age.

      It’s not exactly news that entire genres are often formed by, say, people who loved lords of the rings and want to write stories set in a somewhat different version of middle earth.

      Or people who loved Treasure Island and wanted to write…

  3. I’m definitely not a lawyer, and I’m not very far into The Copyright Handbook. Still, my understanding is that copyright doesn’t protect an idea, but only the expression of an idea. Wouldn’t a character be considered an idea and therefore not copyrightable? Should the estate try to trademark SH instead?

  4. If I recall correctly, the Sherlock Holmes character is trademarked. Trademarks can survive until the death of the universe.

    The Doyle estate sued the guy who wrote ‘The Seven Percent Solution’ and won. It was not a copyright issue. As I recall, the issue was trademark dilution.

    There has been a recent frenzy of Sherlockian TV shows: Sherlock Holmes on BBC (or is it ITV?) and Elementary on CBS. I suppose they pay the estate for use of the characters of Holmes and Watson.

  5. Les Klinger is good people. He has done an incredible amount of scholarly work on Doyle’s works, not anticipating any return, and he’s doing this for humanity and justice.

    (And also probably because the Doyle Estate is notoriously nasty and suit-happy, and has been since the 1940’s. For details, read Anthony Boucher’s novel The Case of the Baker Street Irregulars, for example.)

  6. I’ll admit I didn’t know SH was trademarked, but it makes sense. There has been much written over the past couple of years (here, too) about the need for writers to do their estate planning.

    Without going into too much detail I’ll say that over at my blog I came up with a place called the “Catosphere”, a rascally cat named “Panzer” and a mode of travel called the “Panzermobile.” An attorney friend told me to trademark all three and we did. We had already “copyrighted” the blog as a “serial” publication to protect what appears there. Even my penname is trademarked.

    This SH case just shows proper estate planning is everything for writers. 😉

    • Yes but whose interests are being protected at this point. He’s been dead for eighty years, his last child died more than 15 years ago, I thought I read that none of his children had children. It seems to me this is a good example of how IP protection lasts a little too long.

      • A perennial cash flow always needs protection from others. Just ask the folks who make their livings from protecting it.

      • The interests of his heirs are being protected. Perhaps we consider their interest is weak. But it can’t be much weaker than some guy who wants to use the work to make money for himself.

        • I guess I have a hard time seeing how copyright law promotes progress in the arts when the author and everyone they cared about are dead. People don’t write so that some organization will benefit a century later. I have never heard a convincing reason for copyright to extend past the death of author & spouse (since spouses are often uncredited partners) and adulthood of minor children. There is a lot of stuff that should be in public domain and isn’t. Remember that Shakespeare borrowed heavily from other works of his era. In the modern era copyright law would probably have prevented most of his works ever being performed.

          • Progress in the arts? What does that mean? The issue here is making money.

            • It’s the US Constitution. “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.”

              Current US copyright law has gone beyond that purpose and effectively elimiated the “limited Times” portion. When was the last time a significant work entered the public domain in the US?

              ETA: Specified public domain in the US.

  7. I agree the US Constitution says that. But this is still about money.

    The last time something entered the public domain? I don’t know or care. If I want to read it, I just click BUY on Amazon.

    • Overall that is shortsighted. The reason copyright exists is to provide authors with motivation to write. When it moves to a length of time that is absurd it no longer serves that purpose and infringes and stifles creativity. Again I point to Shakespeare, he borrowed characters extensively, and put forth a body of work that many consider the greatest in the English language, but currently or in 20 or 50 years a modern day equivalent couldn’t arise. Additionally, as an author the public domain is often the best way to preserve a work once the author is deceased. Works in the public domain are more likely to be read. Much of both written and film history from the 20th century is being permanently lost due to being under copyrights that can’t be traced. So no, you may not be able to click buy at Amazon.

      Or go back to Conan Doyle, as he pondered if he was going to write that last Sherlock Holmes story, do yo really think he was wondering if his estate which includes neither his spouse nor his descendants would still be able to make money off of it in 2013? On the other hand what if some one were to read this anthology, be intrigued by Sherlock Holmes, and go back and read the works of Conan Doyle.

  8. There would be a changing in the guard. “She deserved a picture,” he said.
    It’s entirely possible that my attitude around it came, on some level, from if you know I still liked boys.

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