Sherlock Holmes Is in the Public Domain, American Judge Rules

[pavpanchekha]

I am fascinated by the nuance that went into this decision. The argument by the Doyle estate intrigues me: they claim that the characters themselves (as a sort of platonic form) were not fully developed until Doyle stopped writing.

For example, they would argue that in every story, Watson had once played rugby, though this fact wasn't published until a later story. Thus this aspect of Watson's character is still protected. The real meat of their argument is that the pieces that were "discovered" after 1923 are so central to Watson that there's no un-copyright-ed Watson left if those pieces are still protected. (But the judge rejected that argument.)

This seems sensible if you imagine Sir Doyle "discovering", not "inventing", Watson.

[dragonwriter]

> This seems sensible if you imagine Sir Doyle "discovering", not "inventing", Watson.

If you imagine that, then you would be imagining Watson right out of the scope of copyright, which covers creations, not discoveries.

[twocommas]

"At a deep level, the act of discover and the act of creation are identical." -Kevin Kelly (1)

Years ago I spoke with Kevin about this notion and it's relation to quantum mechanics. "Did the particle already exist in XYZ state (discover) or did you observation manifest (create) it." We agreed, it's the exact same thing.

(1) http://kk.org/thetechnium/archives/2010/01/tending_the_gar.p...

[ijk]

The irony is that the 10 post-1923 stories are mostly sub-par and include some of the most out-of-character moments. In my mind not using them is an improvement, though I doubt that my opinion is authoritative enough to influence the case.

[loceng]

This would leave the copyright open-ended forever, so long as they continued to evolve the character..

[davidw]

I'm in favor of IP laws, including copyright, but with the idea of creating incentives for people to create. Putting Sherlock Holmes in the public domain is probably not going to have much effect on Arthur Conan-Doyle's writing output, though, so it's probably a good thing at this point.

[Houshalter]

I'm not sure I understand why characters themselves are copyrighted. I get why its bad to just copy someone else's work, but if I go to the effort to write my own book about the same character, who cares? The world isn't worse off for fan fiction.

[eurleif]

>Putting Sherlock Holmes in the public domain is probably not going to have much effect on Arthur Conan-Doyle's writing output, though, so it's probably a good thing at this point.

I'm playing devil's advocate a bit here, but couldn't the precedent have an effect on the creative output of people alive today, based on their desire for their descendants to inherit something valuable?

[tzs]

> But now, following a legal ruling, the deerstalker-wearing detective is headed to another destination: the public domain

He wore what might have been a deerstalker in parts of two stories, and in both he was in a setting where a deerstalker would have been a normal hat to wear. Most of the time in most of the stories he was not in such a setting, and would have been wearing something else. It was important in his line of work to blend in, and you don't blend in by committing a fashion faux pas.

[rst]

In the Jeremy Brett TV series, an unusually faithful adaptation, Holmes is most commonly wearing a top hat.

[bnastic]

Looking forward to seeing Mickey Mouse in the public domain in a few years?

[Moto7451]

I'm guessing we'll be seeing another one of these before then: http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

[rwbt]

Considering how powerful Disney is, I am not hopeful that it will happen.

[lessnonymous]

I'm surprised Disney didn't throw all their weight behind the Doyle estate here. Under this precedent, all attributes of Mickey Mouse created in 1928 (his first appearance) appear to become public domain in 4 years time, giving you, me, and my uncle Bob the right to publish Mickey Mouse stories.

[gaius]

Maybe a British judge should just declare it?

[mariusmg]

So the character "Sherlock Holmes" is public domain but (some) of the novels are still copyrighted, right ?

What is that good for....authors writing new "Sherlock Holmes" novels ? What is the point in having a "character" public domain ?

[daleswanson]

See for example, the Star Trek TNG episode that used Sherlock Holmes. At the time, the studio assumed Sherlock Holmes was in the public domain, but were contacted by the estate and told they would have to license the character if they wanted to use him again. This almost prevented a follow up episode, and probably did prevent other follow ups to what was considered a good story line.

http://en.memory-alpha.org/wiki/Elementary,_Dear_Data

[rwbt]

I'm assuming one can now make movies/television/video games with those characters without paying any sort of royalty.

[AbsoluteDestiny]

For making any art containing that character. Seems like a big deal. I thought he already was public domain and that was why there were so many derivative works (movies, tv, video games etc) but I guess they all had to license the character from the Doyle estate (for US works at least).

[nl]

There is a US TV show called "Elementary" which uses the characters Sherlock Holmes and Watson, set in NYC in the present day.

[pasbesoin]

The cynic in me wants to rush out and find a way/source to grab a copy, before they find a way to lock it up, again. (The other benefit of Mickey Mouse legislation: Yanking materials back out of the public domain.)

[kurren]

It's really interesting how US justice is always so keen to rule for public domain for non US ip while being so defensive for US ip products (eg. Disney) - I guess it's one more face of American exceptionalism.

We love you so much guys.

[ben010783]

It seems like you're confusing a judge's interpretation of a law with extensive lobbying to get a law changed. http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

[grogenaut]

Time to go publish 50 $.99 android / ios apps.

[RexRollman]

I am glad to read this. I have been following the Free Sherlock website for some time. It can be found here:

http://free-sherlock.com/

[sfrechtling]

Can somebody explain why american law is relevant here? Please excuse my ignorance, but shouldn't British law supercede American law as Holmes was first published in Britain?

[dragonwriter]

> Can somebody explain why american law is relevant here?

Because actions within the jurisdiction of the United States are governed by the U.S. law?

> Please excuse my ignorance, but shouldn't British law supercede American law as Holmes was first published in Britain?

No, British law doesn't govern what people can do in the United States. I thought we settled that a couple hundred years ago?

[ijk]

Because it's already public domain in Britain, and has been since 2000. Since copyright is per-country, that didn't matter for an American case.

Past that, America is a big enough chunk of the English-speaking audience that its American status is a factor for major commercial projects.

[mitchty]

Simple, because this covers America. If Britain wants to enforce its copyrights here, well you'll have to either use force or fire up a treaty. Until then American copyright law applies to something copyrighted in America. Doesn't really enter in that it was published in Britain first.

[jrockway]

Can someone point me to a law review article that covers how characters can be copyrighted? I understand that the text of the book can be copyrighted, but characters? That seems like a stretch.

How does fan fiction exist at all? Authors have the legal right to go after fans, but choose not to? In this legal climate, I highly doubt that.

[belandrew]

Copyright includes rights to the work itself as well as rights to creating derivative works, such as sequels, movie adaptations, etc. This does effectively mean anything using the same characters or settings, although the characters themselves are not technically copyrighted.

This is a decent review of the issues involved: http://io9.com/5933976/are-fan-fiction-and-fan-art-legal

[chilldream]

> Authors have the legal right to go after fans, but choose not to?

This is actually pretty much exactly how it works. Fan fiction is generally a "derivative work" but most creators and publishers realize that there is no real incentive to go after most of it, and a serious disincentive in the form of bad PR among the exact groups of people who are already buying their stuff.

[frobozz]

The entire Holmes canon has been in the public domain in its original country of publication for some time.

Sir Arthur Conan Doyle died in 1930 (more than 70 years ago) and I don't see any evidence that he wrote anything about Mr. Holmes after 1963 (50 years ago)

[sciguy77]

Who wants to make a Sherlock Holmes video game?

[dllthomas]

If it takes 4 years, you can use all the material.

[cies]

I haven't read the book myself but heard they censored the use of drugs (I understood they replaced cocaine with tabacco).

http://en.wikipedia.org/wiki/Sherlock_Holmes#Use_of_drugs

It makes me wonder if uncensored copies can now circulate freely.

[wildster]

No Shit Sherlock, it was written 126 years ago.

[adestefan]

You can still charge for a work that is in the public domain.

[busterarm]

Good.

[hrasyid]

Pardon my ignorance, but shouldn't it be a "duh" that the copyright already expired?

[chrismcb]

While I agree this should be a "duh." But the question is, the copyright for what? Some of the Holmes stories are still under copyright, and that is what they are arguing... Fortunately they are wrong.