Sherlock Holmes is still under copyright, even though his author Sir Arthur Conan Doyle died almost 80 years ago.  Actually, some of Conan Doyle’s stories are or appear to be under copyright protection in the United States (not in the UK and not elsewhere), by virtue of an oddity in US copyright laws.  Ordinarily, US copyright protection for works published prior to no later than 1930 (the year of Conan Doyle’s death would have expired well before today.

Prior to 1978, US copyright law granted a copyright of 28 years from the date of first publication with notice (through filing a copyright registration), renewable after 28 years for a single additional period of 47 years (by filing a renewal copyright registration).  After the expiration of the full 75 years (i.e. the 28-year initial term plus 47-year renewal term), the work went into public domain.  A similar result if, upon the expiration of the 28-year initial term, the copyright owner failed to file a renewal registration.

The 1976 revisions to the US Copyright Act confirmed an existing window under the law through which certain foreign-published English language works could qualify for temporary “ad interim” extended US copyright protection, pending subsequent publication of the work in the United States and copyright protection for that subsequent publication.  It was under these provisions of the 1976 law that a number of the Sherlock Holmes books qualified for extended copyright protection, based on 75 years from the date of publication.  So for a work published in 1925, that would have meant full copyright protection for Conan Doyle’s estate or heirs until 2000.

However, as other commentators have noted, Congress in 1997 further extended that protection for an additional 20 years (total of 95 years) under the Sonny Bono Copyright Extension Act of 1997.

That all seems straight enough, if bizarre.  The Sonny Bono Act (derisively called by some the “Mickey Mouse Protection Act”) was widely viewed as a sweetheart deal for Disney, which had lobbied intensively for the legislation in advance of the upcoming expiration of copyrights for Snow White, Pinocchio and other valuable assets.

What is not straight enough, however, is the subject matter itself of the copyright protection, namely: What is actually copyright-able?  Disputes – and extensive litigation – have arisen over the question of whether the Sherlock Holmes character himself is copyright-protected, as opposed to the individual books and stories which may credibly remain under copyright.  The estate certainly contends copyright (as well as trademark) protection in the Sherlock Holmes character, and it is widely believed that the recent production of the Sherlock Holmes film licensed rights to the characters from the heirs rather than contest any such rights.   The New York Times reported this week that trademark claims by the heirs have been consistently rejected by the US courts and US Patent and Trademark Office.