
Sherlock Holmes Is in the Public Domain, American Judge Rules - kanamekun
http://artsbeat.blogs.nytimes.com/2013/12/27/sherlock-holmes-is-in-the-public-domain-american-judge-rules/
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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.

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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.

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morley
I think you're distinction is a semantic one. pavpanchekha could have easily
framed his observation as Sir Doyle "creating" aspects of Watson's character.

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dragonwriter
No, the whole point was the distinction between "discovering" and "inventing",
a distinction which would not exist if "discovering" was replaced with
"creating".

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crygin
You're not a Platonist, are you?

Regardless, it would be plausible to imagine a character conceived of by an
author, who has curious behaviors in early stories, the motivation for which
is only revealed in a much later story. This would be an example of a process
of "discovery" about a character, but this discovery is happening in the form
of revelations in the text rather than by the act of the author.

If you wanted to make the analogy more precise, you could imagine a character
created with peculiar traits, and the author later realizes a single
explanation for those traits which they had not originally conceived, which
they then write into a story. In these two cases, the effect on the reader
might be identical, but in one essential information about the character was
held back and in one it was developed later.

All of this is a little academic, though, since none of the information about
Holmes & Watson in the post-1923 stories has a material effect on their
characters, as ACD's estate attempted to argue.

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mburns
> In these two cases, the effect on the reader might be identical, but in one
> essential information about the character was held back and in one it was
> developed later.

But we aren't talking about the reader. We're talking about the author. Plot
reveals later in the story (that the reader experiences) have nothing to do
with an author writing those things over time.

If Doyle 'discovered' Watson (not created), then Watson is not copyrightable.
If Doyle created Watson (which he clearly did, being the author of a
fictitious character in a series of fictional novels and stories) then Doyle
didn't "discover" anything, he just refined his creation.

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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.

~~~
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?

~~~
andrewfong
Yes, this is the rationale the Supreme Court used to justify retroactive
extensions of copyright.

From an economic and psychological perspective though, it gets increasingly
silly as copyright gets longer and longer. We know that people discount future
income, and when you get to time frames of 70-90 years, the present value of
any additional income is near-zero.

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dragonwriter
> Yes, this is the rationale the Supreme Court used to justify retroactive
> extensions of copyright.

No, it isn't. Not only is the stated rationale not addressed in the key case
on retroactive copyright extension -- _Eldred v. Ashcroft_ , 537 U.S. 186
(2003) -- that decision doesn't actually justify retroactive extensions of
copyright based on any kind of incentive structure. Its only discussion of
incentive was in regard to setting the particular term (not its retroactive
effect.)

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andrewfong
Yes and no. The majority opinion in Eldred v. Ashcroft clearly discusses
retroactive effect:

"Given the consistent placement of existing copyright holders in parity with
future holders, the author of a work created in the last 170 years would
reasonably comprehend, as the “this” offered her, a copyright not only for the
time in place when protection is gained, but also for any renewal or extension
legislated during that time. Congress could rationally seek to “promote …
Progress” by including in every copyright statute an express guarantee that
authors would receive the benefit of any later legislative extension of the
copyright term. Nothing in the Copyright Clause bars Congress from creating
the same incentive by adopting the same position as a matter of unbroken
practice."[1]

Stated rational by above post isn't quite the same as the point made in
Eldred, but it's based on the same idea -- i.e. parity between terms for newly
created works and previously created works.

[1]
[http://www.law.cornell.edu/supct/html/01-618.ZO.html](http://www.law.cornell.edu/supct/html/01-618.ZO.html)

~~~
dragonwriter
> Yes and no. The majority opinion in Eldred v. Ashcroft clearly discusses
> retroactive effect

Sure, it discusses it because that was a challenged aspect. What it doesn't do
is say that the retroactive effect is justified because it creates a
motivating incentive, it says that the particularly challenged retroactive
extension isn't a violation of a posited _quid pro quo_ requirement because
inclusion in future extensions is justifiably viewed as part of the existing
bargain based on the unbroken past history of including works created before
extension in extensions.

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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.

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

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

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Houshalter
Ironic considering Disney is famous for making films based on other people's
stories.

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officemonkey
Did you know that Disney is asserting their trademark on Snow White? They
believe that they're the only studio allowed to make a film of the Snow White
story, even though the Snow White fairy tale is in the public domain?

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rplnt
They are not successful though, are they? There is a low-budget snow-white
based TV series that run a year ago (Once Upon A Time).

Also, it is ridiculous considering that character is way older than Disney
itself and provably comes from outside US jurisdiction.

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itafroma
> They are not successful though, are they? There is a low-budget snow-white
> based TV series that run a year ago (Once Upon A Time)

Once Upon a Time is a (still active) series produced by ABC Studios, which is
a wholly-owned subsidiary of the Disney-ABC Television Group, which is in turn
a wholly-owned subsidiary of Disney. The show incorporates dozens of Disney
franchises (or, rather, the Disney versions of classic stories) entirely
because of its ownership.

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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 ?

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

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ZeroMinx
[serious] Has the BBC had to pay royalties for making/showing their Sherlock
series? In that case, to whom? The person who created these fictional
characters died over 70 years ago.

~~~
colkassad
Both TV shows and the movie studio entered into a licensing agreement with the
Conan Doyle estate, it's all in the article.

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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.)

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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](http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act)

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

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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/](http://free-sherlock.com/)

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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?

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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?

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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.

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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](http://io9.com/5933976/are-fan-fiction-and-fan-
art-legal)

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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)

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sciguy77
Who wants to make a Sherlock Holmes video game?

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

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lambda
Only if another copyright term extension doesn't happen.

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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](http://en.wikipedia.org/wiki/Sherlock_Holmes#Use_of_drugs)

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

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wildster
No Shit Sherlock, it was written 126 years ago.

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busterarm
Good.

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

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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.

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njharman
Not about the expired copyrights. But rather how any story using those same
characters are derivative works of the later still copyrighted stores (and
thus protected by copyright) even if they use no elements from those later
copyrighted stories.

