Sherlock Holmes Tiptoes into the Public Domain
An American judge has ruled that Sherlock Holmes is in the Public Domain.
Say what? If you’re like me, you’ve had some trouble wrapping your head around the fact that Arthur Conan Doyle’s famous detective wasn’t already in the public domain. His first appearance, in the short novel A Study in Scarlet, was in 1887, and he appeared in a total of four novels and 56 short stories between then and 1927. To my mind that’s the pre-pulp era, roughly contemporary with the Old Testament and the Dead Sea Scrolls.
Let’s review. If most of Robert E. Howard Conan tales, published between 1932 -1936, are in the public domain — and in fact, virtually all literary works published before January 1, 1923 are no longer covered by United States copyright law — what’s the deal with Sherlock Holmes?
Well. Near as I understand it, the Conan Doyle Estate bases their claim on the fact that the last Holmes story was published in 1927, and the characters of Sherlock Holmes, Dr. Watson, Irene Adler, etc. were not truly completed until then. The Estate has challenged any production that tried to make use of the characters — and indeed, popular TV series like the BBC’s Sherlock, and CBS’s Elementary, have paid a license.
In February of this year Leslie S. Klinger, editor of the New Annotated Sherlock Holmes and the upcoming original collection In the Company of Sherlock Holmes, filed a declaratory judgment suit against the Doyle estate, asking that the court rule that Doyle’s famous characters are in the public domain, and no longer protected by U.S. copyright (the characters are already in the public domain in Britain.)
Klinger had already paid a $5,000 licensing fee for the first book, and clearly wasn’t too thrilled about the prospect of having to pony up a second time.
Last week Chief Judge Rubén Castillo issued a declarative judgment that Sherlock Holmes, Watson, and other characters and elements included in the 50 short stories and novels published before 1923 are no longer covered by United States copyright law, and can be freely used by other creators without paying a license fee.
There are some gotchas. Any unique story elements introduced after 1923 — which, as The New York Times points out, includes such tantalizing tidbits as “the fact that Watson played rugby for Blackheath, or had a second wife” — remain under copyright, and can’t be used without paying a license fee. But in general, the core elements of the Sherlock Holmes canon are now free to use.
What are you waiting for, Holmes fanfic writers? Time to sharpen your pens — and see if you can get an agent.
Read more details at the New York Times online edition.
Copyright law is a fascinating and confounding thing. This case is a good illustration of how confusing and serpentine it can be.
About 10 years ago(Before Holmes was a hot commodity), I pitched a tv pilot based on the late John Gardner’s ‘Return of Moriarty’ book to John and his agent. Through a friend, I contacted a well known agent in England to possibly act on my behalf. He’d had an unpleasent encounter with the Doyle Estate in the past on a Holmes project and was not interested, even though Holmes was public domain and my project was based on a pastiche by a respected author.
Sir Arthur’s sons lived off of their father’s legacy and fought every Holmes usage they could find, including August Derleth and his Solar Pons stories, Ellery Queen’s ‘The Misadventures of Sherrlock Holmes, etc.
BTW, Andrea Plunkett, ex-wife of Sheldon Reynolds, producer of the Ronald Howard Holmes tv series in the fifties, claims she owns Holmes and has sued (and lost) over the copyright as well.
According to the NYT January 3, 2014 article referenced in the above link:
“Mr. Klinger said he planned to go ahead with “In the Company of Sherlock Holmes,” which he said carefully avoided any post-1923 elements. And he praised the ruling for opening the way for other creators, many of whom had previously paid fees to the estate but had rallied to Mr. Klinger’s cause under the Twitter hashtag #FreeSherlock.”
“Sherlock Holmes belongs to the world, and this ruling clearly establishes that,” he said. “People want to celebrate Holmes and Watson, and now they can do that without fear.”
Mr. Klinger is wrong. Sherlock Holmes does not belong to the world and I’m not sure the court ruling implies that. Quoting the same article:
“A federal judge has issued a declarative judgment stating that Holmes, Watson, 221B Baker Street, the dastardly Professor Moriarty and other elements included in the 50 Holmes works that Arthur Conan Doyle published before Jan. 1, 1923, are no longer covered by United States copyright law, and can therefore be freely used by others without paying any licensing fee to the writer’s estate.”
This is about money and paying a licensing fee to the writer’s estate. Perhaps therein lies a big problem with the copyright laws. Too often Intellectual Property laws are interpreted from a monetary point of view without considering the creation process that went with it. Just because the licensing fees on the writer’s work or characters run out does not mean the intellectual property or creation “rights” no longer exist. Sherlock Holmes is the creation of Sir Arthur Conan Doyle. As such he belongs to Doyle no matter who else pens a story using that character. None of these pastiche writers invented or created Holmes. If they were capable of that, they would write their own characters and the backgrounds for them instead of imitating and/or using the work done by someone else.
Repeating Klinger’s statement from above, “People want to celebrate Holmes and Watson, and now they can do that without fear.” This is incredibly simplistic and unrealistic. What’s really sad about this court ruling is writers will no longer need to consider the character as Doyle created him. Until now, the Doyle Estate could maintain at least some level of quality in the Holmes pastiches. Now, any mediocre person can make him into a porn film star, a pedophile, a traitor to his country or even a buffoon; he now can be placed in any conceivable situation by anyone who did not have the talent to create this character in the first place. This is the saddest cut of all.
Barbara
> What’s really sad about this court ruling is writers will no longer need to consider the character as Doyle
> created him. Until now, the Doyle Estate could maintain at least some level of quality in the Holmes
> pastiches. Now, any mediocre person can make him into a porn film star, a pedophile, a traitor to his country or even a buffoon
Hi Barbara,
You’re right, of course. This ruling will likely open the floodgates for a whole new generation of Sherlock Holmes pastiches, without even the pretense of quality control.
On the other hand, those gates were already wide open in the realm of fan fiction (and, of course, the “unlicensed” Holmes pastiche, such as August Derleth’s Solar Pons books). Holmes was already appearing as a porn star, pedophile, traitor, and buffoon… we’re just going to be less shielded from it now.
And really, I think that’s OK. Yes, the Holmes estate likely exhibited some form of quality control over what would get published. Now, that burden falls instead to professional editors, film makers, and publishers, who can judge the merits of a project the same way they do every other work. In other words, they’ll evaluate projects based on how well they think they’ll sell, and how well they fit their current publishing line.
Personally, I’d rather the trust those folks (and my own personal judgment, of course), than a faceless estate. Now, when I see a new Holmes Books from (say) Tor, or a Holmes movie from Universal, I think I can know roughly what to expect. And if I see a low-quality, self-published Holmes pastiche with a nude on the cover… again, I think I know what to expect.
Sure, this ruling will allow a flood of low-quality Holmes pastiche to reach the shore. But just how much gets on your shoes — as always! — is up to you.
“Now that burden falls instead to professional editors, film makers, and publishers, who can judge the merits of a project the same way they do every other work. In other words they’ll evaluate projects based on how well they think they’ll sell and how well they fit their current publishing line.”
John, I believe your statement as a publisher and editor speaks more about who you are—honorable, with integrity and good taste—than what I’ve encountered in the products put out by many of the current level of professional editors, film makers and publishers. Based on what I’ve seen of greed, you are a lot more optimistic than I am—and I thought I was the most optimistic person I know.
Yes, I would also trust *your* judgment against a “faceless estate.” But that trust doesn’t extend to a lot of others in the media world and in those cases, at least the “faceless estate” has a vested interest in a quality product.
But perhaps the controversy lies within the points of view: publishers/editors and writers. Yes, there are authors who don’t care about the final product of say a film adaption. ERB just wanted the money. On the other hand J K Rowling maintained strict control over the film productions of her stories. Most writers don’t get that privilege when directors, publishers and editors who buy their story/book make such significant changes to their work that it is literally unrecognizable. Ironically, it is the fans who compare it to the author’s original work and complain. BTW I am a big time fan of “Sherlock” and “Elementary.” Both productions are in my opinion quality programming and treat the character of Holmes with respect.
But the main thrust of my original posting above was Mr. Klinger’s statement that Holmes “belonged to the world.” I believe writers are a most under-appreciated group. It rankles to see people, who cannot hope to duplicate or even come close to the original created quality, have the right to do whatever they want with it and then be arrogant enough to say the character “belongs to the world.” Having the right to write a pastiche about a character created by someone else doesn’t mean that character belongs to the pastiche writer.
Happy New Year John to you and your family and to all of the staff and reader’s on Black Gate. Thanks for another wonderful year of great blogs.
BB
[…] a judge ruled that the works of Sir Arthur Conan Doyle concerning Sherlock Holmes were, in fact, in the public domain. Up until this point, stories about the the world’s greatest detective (except for possibly […]
[…] a judge ruled that the works of Sir Arthur Conan Doyle concerning Sherlock Holmes were, in fact, in the public domain. Up until this point, stories about the the world’s greatest detective (except for possibly […]