Sherlock Holmes Is in the Public Domain, American Judge Rules
artsbeat.blogs.nytimes.com
artsbeat.blogs.nytimes.com
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.
If you imagine that, then you would be imagining Watson right out of the scope of copyright, which covers creations, not discoveries.
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.
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.
you're -> your
I know a lot of people with PhDs, but I can't think of any who want to be called "Doctor", because that's exceedingly silly. I know it works a bit differently outside of the US.
http://en.wikipedia.org/wiki/Surgeon#Titles
And now we are wildly off-topic!
Yes, I've noticed a very strong correlation between country and insistence on using a title conferred by a PhD. Americans do in general seem fairly relaxed about it.
How is this self evident?
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
http://www.archives.gov/exhibits/charters/declaration_transc...
(Though I'm not sure I agree with the parent point that Americans as a group really believe equality in the relevant sense here.)
Even Americans who really do believe that all people are created equal (which any discussion thread on any major forum -- including HN -- on gender or race issues, among other topics, will reveal is far from all Americans) rarely believe that all people are equal.
Professional usage varies a lot by institution. Where I went to grad school, undergraduates usually use "Doctor" or "Professor" when addressing a member of the faculty, but graduate students usually call the professors that they actually know by their given names. I understand that's not the case everywhere; at some schools even grad students who have worked with a professor for years are still expected to address them by title. I have heard (but have not personal knowledge one way or the other) that the University of Chicago is one of these.
More precisely, copyright covers expressions, not inventions or discoveries. And any patent on Watson has long run out.
So it seems to me that writing new stories involving Watson, even ones where he played rugby, should be perfectly fine. Just reproducing the later stories is not allowed without permission.
Years ago I spoke with Kevin about this notion and it's relation to quantum mechanics. "Did the particle already exist in XYZ state (discover) or did you observation manifest (create) it." We agreed, it's the exact same thing.
(1) http://kk.org/thetechnium/archives/2010/01/tending_the_gar.p...
If you'll excuse me to snark for a moment, though: isn't that exactly what's happening with Mickey Mouse? The character keeps evolving and the copyright remains open-ended forever?
It would also have the added effect of making it finally safe to reduce copyright down to a sane time; Somewhere within a lifetime. The Mouse could be protected under trademark law, while his early adventures would be free for anyone to see.
Trademark is also more open to use - A trademark cannot be used to sell, rather than not used at all as with copyright. It makes it far clearer that The Onion can portray The Mouse as getting caught in a toronto-esque crack scandal, or whatever else they wish to parody, without the ugliness of american "Fair Use" laws.
The only thing I care about is truth. If you make a claim X, e.g. branding your item as in a trademark, then it should be true. But I see no harm in allowing products that do not make any false claim at all.
Abstract art doesn't belong to the creator. Once it's published it has a life of its own, like a mathematical proof of a theorem. The only thing that is yours is the claim that you did it. I wish the world worked this way. We'd see more innovation in everything.
The whole patent/copyright thing, I find absurd.
For patents, imagine if the population were a million times greater than it is now, some staggering number. Would you feel comfortable with a patent system then? Probably anything you could come up with would infringe marginally upon another's protected under a temporary monopoly. People would be shut out from selling anything at all, except those who already had resources to discover new inventions.
Copyright is different because perhaps the scope of possible interesting discoveries or inventions is much broader so anybody could participate and create something unique. But even then, who is the creator of abstract art to tell others to not derive joy or economic sustenance from his/her creations? As long as the transactions were based upon truth, e.g. no lying about who the creator is, ideally with correct attribution, then it's none of anybody else's business! If the consumer wants to purchase "fake" fan-fiction, just take it in stride. It does not affect you, your creative ability, nor your economic condition.
Those characters do not live in your head. They live in mine. I have full control in expressing who and what they are on paper for others to learn more about them. No one else does, no one else can say they did this or that because they don't have any control over my creations, my thoughts, my personal universe. To say someone else can just write with my characters is tantamount to violating an innermost personal space - indeed, it's intruding on one of the most personal forms of control and self-expression possible. You can't just create situations and settings for things that only exist in my mind. I want others to know, so I'll put out a public work. That doesn't mean someone can put something in my world, my character's lives, without my approval. Copyright is just a legal extension of that God-hood I exert over things in my head.
It is just too bad that the current form of copyright is far from ideal, as we've seen. I'm not against fan fic or other expression of still-in-copyright works either, I tend to like them and tend to agree that they do more good than harm, just pointing out that it does matter in some cases, discretion of the author should always be allowed, and just being well-known and popular doesn't magically make that control disappear. Being dead does though, so much of this doesn't really apply to the original topic, but felt I had to make a response to this.
The problem with that argument is that this statement is simply not true once you tell me about the characters. Now they are in my mind too, and I want control over my own thoughts, just as you do.
I understand that you're saying that the ideas remain yours whether they are in your mind or mine. Either way, accepting your characters into my mind means giving up my control over my mind and thoughts. You are colonizing my mind with your ideas and insisting on limits on my thoughts about them. This would be all right if you paid me rent for storing your creations in my brain, but that would be completely impractical.
> Copyright is just a legal extension of that God-hood I exert over things in my head.
Analogies between humans and divine attributes tend to fall apart when they have to deal with the existence of more than one human. I think this highlights the weakness of the author's moral rights. The author's creation of the character was inspired by many other human creations and real-life characters. The character will go on to be recreated by every person whose unique perspective influences its imagination. Yet the moral rights argument requires picking out one act of creation, conferring divinity upon it, and pretending there are no rival divinities that could possibly conflict with its solitary status.
> because they don't have any control over my creations, my thoughts, my personal universe.
Nor do you or should you have control over the creations, thoughts of the other billions of people on the planet
> I have full control in expressing who and what they are on paper
Why? It certainly isn't natural or basic right. Copyright does not cover or protect things in your head. It covers what you and others fixate into medium. It does(should) not cover ideas, only specific implementations of those ideas. Your imagined god-hood of things in your head matters not.
Creativity is not spontaneous. Despite what you think, your precious characters do not spring original from your mind. They are amalgamations of our shared culture.
You may be lauded for effort of getting them out into a cohesive and entertaining form. But that for fuck sure does not grant you the right to deny the rest of world from doing the same.
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?
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.
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.)
"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.
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.
Fair enough, but Conan-Doyle's children are dead too. How many generations should get the benefit of something before the public at large does?
If I buy an annuity that pays out over 50 years, it should pay out over 50 years, whether or not I die tomorrow or I live another hundred.
And sometimes people work a job not to support themselves, but to create inheritance money for future generations.
Copyrights should end at death, or a fixed term in the case of a corporation.
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.
Overall campaign finance revenues, however, are maximised by supporting copyright expansion, because copyright holders who already own substantial collections of copyrighted works are willing to back politicians who support their interests, but there is no equally big pot of money for politicians in favour of balancing copyright.
It is one of those cases where what is essentially legally sanctioned corruption allows for regulatory capture of the political process against the interests of the government and public.
Also, it is ridiculous considering that character is way older than Disney itself and provably comes from outside US jurisdiction.
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.
That reminds me, I should download Jungle Book from librivox, I need more books to listen to.
I don't think it's unreasonable for Disney to still hold copyright on Mickey Mouse (that might be the nostalgia talking), but there are plenty of creations from much more recent times that have long overstayed their welcome in the copyright protected realm.
It was also extremely painful to search for renewals until all of the renewal records were digitized by the Project Gutenberg Distributed Proofreaders. Now it's just moderately painful, because you have to be alert for variations in titles and author names.
Periodic -- say, every 7 years -- renewals with exponentially increasing costs to renew.
A token fee would do that for abandoned works, but it wouldn't do it for works which weren't being actively used but which the owner also didn't want others to use -- an escalating fee would be better than a token fee to discourage such buried works.
I'd be happy with a copyright system where the fee is $5 for the first year of government-protected monopoly, $10, for the second, $20 for the third, and on and on at the rate of $5*2^n for as long as they like. Note that at the fifteen-year mark, the renewal fee for another year of copyright enforcement would be over $30 million, which seems appropriate.
edit: math
However, since DC Comics still holds a trademark on Superman, you can't use Superman for anything else. In fact, when I bought a VHS tape of the Superman cartoons back in the 90s, the manufacturer was careful to use an actual Public Domain image of Superman on the box. If they created a new image, the Superman trademark would have applied.
Trademarks indicate origins of goods/services. Unless they used the trademark in a way as to convince people that the video originated with DC Comics then they're supposedly fine.
It's a notional consideration but after the lapse of a copyright the "man in the street" should be expected to be aware that the copyright has lapsed and so to be able to buy previously restricted works from any company. Images adapted from a PD work then should be allowed, provided there is no effort made to use that image in an otherwise infringing way.
Of course you can be sued for anything and DC Comics would most likely enact a very expensive lawsuit - in a sane legal system however they should probably lose, especially if they were attempting to use their trademark to prevent the release of material which would have been copyright infringing before the lapse of the copyright term.
If the estate of a creator of a work can use TM law to prevent PD works from being adapated and used then that cancels the deal made in copyright between the state and the creator whereby the works have a presumption of fully entering the public domain.
[Does anyone know of any caselaw covering situations where a major element of once copyrighted - but now PD - works is also a valid trademark?]
It's about suppressing the ideas that copyright is a granted right, a temporary right, that everything starts out free (as in freedom) and is only temporarily monopolized for the betterment of society, that the public domain exists.
And to reinforce that idea that culture, art, entertainment are products owned by corporations which must be paid for.
So is ownership of land, when you come down to it. We like to pretend, in most countries, that land tenure is absolute and that it's the foundation of society, but it isn't. Only a sovereign has absolute land tenure, and the only sovereigns in the modern Western world are corporate entities called governments. (A constitutional monarchy is pleased to pretend that certain individuals are sovereign, but in point of practical fact a crowned head can be deposed by a functional constitutional government.) Everyone else holds tenure contingent on their sovereign not exercising eminent domain to take the land from them and use it to its own ends. Sure, you'll likely get paid, but you don't have the option of turning down the offer and keeping the land.
"Stable ownership is the gift of social law, and is given late in the progress of society." -- Thomas Jefferson
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12....
Appropriate to who? Maybe Disney, but not for the vast majority of people who are creating works every day. Just yesterday, we had a guy doing a Song a Day make the front page: https://news.ycombinator.com/item?id=6966581. He started it in 2009. Doing very rough math, that puts his burden as:
2009: 365 x $5 * 2^5 = $58,400
2010: 365 x $5 * 2^4 = $29,200
2011: 365 x $5 * 2^3 = $14,600
2012: 365 x $5 * 2^2 = $7,300
2013: 365 x $5 * 2^1 = $3,650
TOTAL: $113,150
Copyright covers an enormous range of output. Keeping a central ledger that tracked the copyright status of hundreds of millions of items would be a massive undertaking.
What is that good for....authors writing new "Sherlock Holmes" novels ? What is the point in having a "character" public domain ?
We love you so much guys.
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?
Past that, America is a big enough chunk of the English-speaking audience that its American status is a factor for major commercial projects.
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.
This is a decent review of the issues involved: http://io9.com/5933976/are-fan-fiction-and-fan-art-legal
This is actually pretty much exactly how it works. Fan fiction is generally a "derivative work" but most creators and publishers realize that there is no real incentive to go after most of it, and a serious disincentive in the form of bad PR among the exact groups of people who are already buying their stuff.
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)
http://en.wikipedia.org/wiki/Sherlock_Holmes#Use_of_drugs
It makes me wonder if uncensored copies can now circulate freely.