# US court rules Sherlock Holmes is in the public domain



## The Hooded Claw (Oct 12, 2009)

http://mobile.nytimes.com/blogs/artsbeat/2013/12/27/sherlock-holmes-is-in-the-public-domain-american-judge-rules/?q=Sherlock%20public%20domain&lr=English&hl=en&_r=0

The Doyle estate has tried to keep him under copyright. The ruling is complicated, apparently stuff like biographical details on Holmes or Watson that Doyle wrote after 1923 will still be copyrighted.

We may see a further explosion of Holmes stuff now.


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## NogDog (May 1, 2009)

The Hooded Claw said:


> ...
> We may see a further explosion of Holmes stuff now.


Just had a yucky visual there.


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## Ann in Arlington (Oct 27, 2008)

NogDog said:


> Just had a yucky visual there.


Oh, I dunno. 221B has had explosions before.


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## Tony Richards (Jul 6, 2011)

When you consider the number of people who write Holmes novels and stories, then this has to come as a pretty big relief to a great many authors.


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## Geoffrey (Jun 20, 2009)

I was discussing this online elsewhere yesterday and I'm thinking that the Doyle estate will not take this decision lying down.  They're already saying that the content written after '23 isn't necessarily linear in the Holmesian(?) timeline so those details written later will have influenced the characters overall personalities in the earlier works.  To me that says they will be using a fine tooth comb to find minutiae in newly created content to claim copyright infringements .... in the end, this will just tend to make them look small and petty, but I don't doubt they'll try since, legally, they do have a leg to stand on.


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## The Hooded Claw (Oct 12, 2009)

Geoffrey said:


> I was discussing this online elsewhere yesterday and I'm thinking that the Doyle estate will not take this decision lying down. They're already saying that the content written after '23 isn't necessarily linear in the Holmesian(?) timeline so those details written later will have influenced the characters overall personalities in the earlier works. To me that says they will be using a fine tooth comb to find minutiae in newly created content to claim copyright infringements .... in the end, this will just tend to make them look small and petty, but I don't doubt they'll try since, legally, they do have a leg to stand on.


 I agree with Geoffrey that they will try. I suspect I will have success with smaller operator swho won't be able to afford a legal fight. May be tougher with the big-boys.


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## Alessandra Kelley (Feb 22, 2011)

It mostly means that authors will have to be very, very careful that they know their Holmes canon, stick to the pre-1923 source material, and scrupulously leave out anything added by later actors, writers, film directors, etc.

These people made a lot of money by creatively interpreting the law in their favor and have shown no scruples about harming people for it.


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## Ann in Arlington (Oct 27, 2008)

Well, it may be decided but it's not 'decided' if you know what I mean.  I think they've appealed.

Somewhere I read an article where a person likened it to the first Superman issue being in the public domain but nothing after that.  So the only part of the legend that could be used is the fact that he's from another planet and might have some extra strength and such like.  But no flying.  Superman didn't fly in the first issue, apparently.


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## Mike D. aka jmiked (Oct 28, 2008)

Earlier this week I listened to my favorite Holmes-oriented podcast, in which two lawyers were interviewed for the hour-long program. One was the fellow who brought the suit against the Conan Doyle estate (and a writer/editor), the other was an IP lawyer/professor and Holmes fan. Both said they expect the verdict to be upheld. Not that has any effect on what happens.  


Mike


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## Key (Jan 6, 2014)

Yay!  And...yay?  It still sounds really confusing.     

I just want to know when I can finish my story about a girl getting trained by Sherlock in the ways of detecting, and publish it without worrying.

Though, actually, I might never finish that book.  The last time I dragged it out to look at it, I was a bit appalled at both length of chapters, sentences, and the whole thing....


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## Robert Stanek (Nov 16, 2013)

Hard to say on this one, but it will be interesting to see how this evolves through appeals and such. I imagine though that just because the US courts rule this way, it doesn't change the rules outside the US. Thus, in the end, those creating new Sherlock Holmes works may still need to work with the Doyle estate to distribute works outside the US.


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## Andre Jute (Dec 18, 2010)

_sorry -- no self promotion allowed in the Book Corner, thanks -- Ann_

*The Sherlock Holmes Rights Grab: A grotesque sense of entitlement among writers*​





Sherlock Holmes by Sidney Paget (1860-190​
The New York Times reports that a US court has ruled that Sherlock Holmes is in the public domain; an appeal is being lodged.

An explosion of faux Sherlock Holmes fiction is expected, like a boil bursting.

I've yet to read a "Sherlock Holmes story" by an imitator that matches the quality of those written by Arthur Conan Doyle. The greater part of the art of literature is inventing and developing characters. It follows that a writer who insists that he has a "right" to use another writer's characters, by definition isn't much chop.

One of the purposes of the law of copyright protection having a natural termination a number of years after the death of the creator is education. There is nothing in the expressed reasons or implied intentions of the creators of copyright about satisfying the greed of writers too slack or untalented to invent their own characters by permitting them to cash in on the name recognition of established fictional icons created by better men.

Copyright © 2014 Andre Jute


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## Alessandra Kelley (Feb 22, 2011)

Oh, I don't know.

The tradition of writing stories in other people's universes goes way back, long before Robin Hood and King Arthur.  I don't think T.H. White was "slack" or "untalented" when he wrote "The Once and Future King" just because Mallory did it first (and others before him).  Nor were the many authors who wrote "Star Trek" novels slack or untalented because they were using someone else's characters and world.

Indeed, many good stories have come out of just such an engagement and conversation between different creators.

I think you are painting authors with a very broad brush indeed to call all work using someone else's characters "grotesque," and likening them to a boil bursting.


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## Geoffrey (Jun 20, 2009)

I tend to agree with Alessandra. While some authors may use the characters created by others because they lack the talent to create compelling characters on their own, saying that all authors who do so lack the talent is a lot like saying Ike and Tina Turner were being slack or untalented when they covered CCR's _Proud Mary_.


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## Andre Jute (Dec 18, 2010)

Alessandra Kelley said:


> I don't think T.H. White was "slack" or "untalented" when he wrote "The Once and Future King" just because Mallory did it first (and others before him). Nor were the many authors who wrote "Star Trek" novels slack or untalented because they were using someone else's characters and world.


White did not appropriate Mallory's characters; they both drank from the same well of extant legend peopled with established characters, and what White did with the legend is not what Mallory did. The owners of the Star Trek franchise were not disenfranchised by force, they chose to share, and they chose with whom they shared, and paid those they shared with because they had worth as writers in their own right. I've said nothing about such honorable traditions of tapping into the collective legend or commissioning series of novels in a franchise from different competent writers, so I don't know what you're responding to. I'm talking about those who claim they have a "right" transcending common property rights to use the characters created by other writers. In short, I'm trying to discuss the morality of the matter.



Geoffrey said:


> I tend to agree with Alessandra. While some authors may use the characters created by others because they lack the talent to create compelling characters on their own, saying that all authors who do so lack the talent is a lot like saying Ike and Tina Turner were being slack or untalented when they covered CCR's _Proud Mary_.


Same answer as above, Geoffrey; the Turners didn't try to take something by force, they indulged in a common commercial transaction, paying royalties to use someone else's creative output. The Doyle heirs offer the same deal of a fee to use the creative output of Arthur Conan Doyle. The court case under discussion here is about an attempt by writers to do exactly the opposite: to extract the creative property without paying the fee.

We might also note that the Turners in covering a song are acting as performing artists; not all singers are songwriters and/or composers. Translating your example to literature, you're confusing a person who reads a novel aloud for an audiobook with the author of the work.



Geoffrey said:


> While some authors may use the characters created by others because they lack the talent to create compelling characters on their own, saying that all authors who do so lack the talent


I didn't say that writers who use characters created by other writers are _therefore_ slack or untalented, as you claim. What I said is that those who, _because_ they are slack or untalented, and as a consequence demand the right to grab other writers' characters, are not the people for whom copyright termination was created. In short, the slackness or lack of talent is from their perspective, a motivator of their actions, not a judgement by me. Those who are not slack and untalented know they can recover out of the "Sherlock Holmes" book they will write the fee paid to the Doyle heirs. If the USD5000 the heirs asked from the writer who went to court for an annotated edition of *all the Sherlock Holmes stories* is typical, their fees are incredibly low.


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## Alessandra Kelley (Feb 22, 2011)

I am not sure what you are arguing here.

The "Estate of Conan Doyle" (as they termed themselves) charged $5000 for access to stories which were written well over a century ago and, had copyright law not been subverted through shenanigans, would have been free and in in public domain many, many decades ago.

That is the matter of law on which this thread is based.

You seem to be arguing the immorality of writing stories using another's characters if there are identifiable other authors (rather than folklore) and where there is no financial transaction involved.


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## Geoffrey (Jun 20, 2009)

Andre Jute said:


> I didn't say that writers who use characters created by other writers are _therefore_ slack or untalented, as you claim. What I said is that those who, _because_ they are slack or untalented, and as a consequence demand the right to grab other writers' characters, are not the people for whom copyright termination was created. In short, the slackness or lack of talent is from their perspective, a motivator of their actions, not a judgement by me. Those who are not slack and untalented know they can recover out of the "Sherlock Holmes" book they will write the fee paid to the Doyle heirs. If the USD5000 the heirs asked from the writer who went to court for an annotated edition of *all the Sherlock Holmes stories* is typical, their fees are incredibly low.


That's not what you said. You've now elaborated on what you originally said .... elaboration is fine, but it doesn't discount my comment at all. you said, "There is nothing in the expressed reasons or implied intentions of the creators of copyright about satisfying the greed of writers too slack or untalented to invent their own characters by permitting them to cash in on the name recognition of established fictional icons created by better men." and that is quite a different statement from your elaboration. I stand uncorrected.

Apparently, now, paying for the use of the rights to the character or the song is the defining factor over whether or not you are a slacker or untalented.


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## Andre Jute (Dec 18, 2010)

Geoffrey said:


> That's not what you said. You've now elaborated on what you originally said .... elaboration is fine, but it doesn't discount my comment at all. you said, "There is nothing in the expressed reasons or implied intentions of the creators of copyright about satisfying the greed of writers too slack or untalented to invent their own characters by permitting them to cash in on the name recognition of established fictional icons created by better men." and that is quite a different statement from your elaboration. I stand uncorrected.


Read the sentence by me that you quote or, if you like, the whole short piece from which it is taken. Where can you find me, in your words, "saying that all authors who do so [use other writers' characters] lack the talent"? I didn't say that. You're trying to put words in my mouth.



Geoffrey said:


> Apparently, now, paying for the use of the rights to the character or the song is the defining factor over whether or not you are a slacker or untalented.


Oh, I would agree that it defines morality. But I definitely don't agree with this claim of yours that "paying ... is the defining factor over whether or not you are a slacker or untalented."


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## Ann in Arlington (Oct 27, 2008)

I agree with Geoffrey --- to me, the implication was definitely there in your original post that, if a writer chooses to use someone else's characters -- with or without permission -- it's because they haven't the talent to create their own.  That may not be what you meant to imply.  But that's sure what it sounded like.


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## Andre Jute (Dec 18, 2010)

Ann in Arlington said:


> I agree with Geoffrey --- to me, the implication was definitely there in your original post that, if a writer chooses to use someone else's characters -- with or without permission -- it's because they haven't the talent to create their own. That may not be what you meant to imply. But that's sure what it sounded like.


What Geoffrey claims is that I said that "*all* authors who do so lack the talent" (emphasis added). I'm waiting for someone to produce evidence that I said anything so reckless and unsophisticated. I published the same piece many places; no one else misunderstood me to mean more than a self-selecting sub-group of writers. In fact, before your post came in, I had already described to Alessandra an exception (to Geoffrey's "all") of an author using another writer's characters, who is most certainly not untalented, nor slack -- on the contrary, she is extremely talented and her booklist speaks volumes (heh-heh) of constant application. See below.



Alessandra Kelley said:


> I am not sure what you are arguing here.
> 
> The "Estate of Conan Doyle" (as they termed themselves) charged $5000 for access to stories which were written well over a century ago and, had copyright law not been subverted through shenanigans, would have been free and in in public domain many, many decades ago.
> 
> ...


Copyright law was created for readers, not for living writers to cash in on the characters created by dead writers.

You've put your finger on what actually interests me, the morality of taking away the property rights of writers, and only writers, whereas almost everyone else is allowed to pass their property to heirs of their own choosing, in perpetuity.

I don't have any problem with P D James, a distinguished writer with nothing left to prove, taking some of Jane Austen's characters onwards; she isn't likely to bring dishonor to Austen's memory. The test is whether Death Comes to Pemberley would have done as well if the characters were named not Lizzie and Darcy but Janet and Jonathan. I'm pretty sure that it would.

But most of the writers who want to jump on the Sherlock Holmes bandwagon have no such track record, and want to use the name recognition of Sherlock Holmes to make a quick buck because they know whatever characters they could invent won't find so large an audience, or any audience at all. What could such writers add to the Sherlock Holmes legend except confusion? Why should this money-grubbing exercise be allowed? It wasn't what the creators of copyright termination intended, for sure; I doubt they even considered it, because back then writers were gentlemen and ladies of honor who did their own heavy lifting.

I find it depressing that the entire thread so far has been about the process of wresting these rights from the heirs of Conan Doyle (in a previous thread on the subject someone said she was an elderly lady) with not a single word about the morality, not a single word about the quality of the material that the imitators want to churn out.

Charging a fee, which in my experience is waived more often than not for the right people, is one way for rights holders to protect the memory of a great man by keeping the incompetent and the greedy off his patch. The competent and the confident will be able to recover a copyright fee from the sales of the book, and even a modest fee will give the rest second thoughts.

I don't know what the $5000 fee you're referring to is for, but elsewhere we are told that the fellow who went to court was charged only $5000 for *all the Sherlock Holmes stories* in a single volume which he would annotate, which strikes me as a bargain. In any event, no one will ever cut it as a marketer who with the name SHERLOCK HOLMES prominently on the cover of the book can't recover five grand pretty soon.


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## Geoffrey (Jun 20, 2009)

Well, that touched a nerve ....


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## UnicornEmily (Jul 2, 2011)

I personally don't choose to write stories based on other people's characters.  But I will put in my two cents to say that one of my favorite authors, Timothy Zahn, has consistently written Star Wars books that are BETTER than George Lucas's original movies (and, given that I love the original trilogy, that is really saying something).


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