A Sherlock Holmes Copyright Mystery?
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.
Thanks a ton for taking the time to post these online quite often. I am sure you have tons of people, just like me looking forward to your next posts. I always wonder how on earth can you create such wonderful profound information that one can pick straight off the peg and use right away. Well, I am certainly wanting to read more of your inputs.
“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.”
This statement does not state the case quite sufficiently, I’m afraid. From what the NYT article implies, the courts have rejected only the trademark claims of a bogus heir (or at least one with quite limited rights to Holmes–they mention a polish Holmes movie, for instance). These claims for trademark on the Holmes character were most likely rejected because this “heir” was not even acknowledged as the owner of the extended copyrighted stories in the first place (the final collection of Holmes stories written after 1923). She was apparently trying an end-around to avoid the existing claim (since held up as legitimate, I guess) of copyright by Conan Doyle’s leagal estate.
Your comment above is misleading because it suggests that a trademark for Holmes and accompanying characters is unlikely to be allowed by US courts. However, the acknowledged owner of the few stories still under protection MAY be able to win such a suit involving a trademark. Hence, the hollywood film industry was willing to take a safer route by not challenging the copyright protection and coming to terms with the estate.
So, while it is clear that the stories written after 1923 cannot be reproduced without permission,and all the others are in public domain, the question remains: if someone creates a line of toy figures, for example–representing and named after the characters of Holmes, Watson, etc.,–are those toys based on material available in the public domain? It would seem so, as those characters and their defining traits were well established long before those final stories were written. Of course, copyright law is not that simple. If Disney makes another Snow White movie, does her character (at least as portrayed by Disney) then avoid going into the public domain for another xx years? Anyone know the answer to this quandry, or will it only be answered when a court has to make a judgemnet on it?
I’m curious. From what I understand, it is possible to use certain material under parody/comic protection? Is that correct? So if some one came up with something similar but not used the particular names/characters but it was obvious who they ware. Would that be protected under this freedom of comedy expression or however you may call it?
Thanks for any input.
Parody would generally constitute fair use, yes.