I can finally retire the "Sherlock Holmes' emotions are still copyrighted" legal argument that I used to use for explaining the penumbra of the public domain.
Eh. The Conan Doyle estate argues that the characterization of Holmes was materially different in some of the final stories. So any story that materially changes Holmes to be less of an ass was using that characterization.
Netflix was about to take them to court over Enola Holmes, but all parties eventually settled and the suit was dropped.
Likely the Conan Doyle estate realized their final copyrights were about to be up and it wasn't worth the legal battle they would likely lose because "having emotions" is incredibly vague.
Editor, Sherlockian scholar, and lawyer Leslie Klinger took the Doyle estate to court about this idea, and got a judgement that it didn't hold. His blog about the case is at https://free-sherlock.com/ .
Emotions about the character of persons, that are deducted by the length of the nose and the span of the eyebrows? Seriously, reading the books with a detectives eyes, one can see all the nonsense they believed aeons ago..
I mean, Holmes can only really be as smart and capable as Arthur Conan Doyle was. Any blind-spots or nonsense Holmes engaged in was because Conan Doyle believed it.
Which means Holmes believed in some really batshit ideas. But since the world of Holmes is defined by Conan Doyle, shit like phrenology was real in that world.
Or that ridiculous quak-science with the monkey stem cells transfusion. The deduction stories were excellent, but some of the outlier-stories or the "nationalism" race characteristics are the insanity that gave us WW1 and WW2.
Even the deduction stuff is only because Conan Doyle says so.
Like he could determine cultivars of tobacco from looking at and feeling the ash. And other people never pick up on things that even the reader could. But Holmes does. And then you feel smart, because you even beat Holmes to the punch.
My wife has been watching Bones (again) and I've noticed this a lot there too. It was an episode where the victim was a nine-year-old child. They "digitally reconstructed" the child's appearance and couldn't find a match, but then noticed the hair was dyed, the teeth were veneered, etc. And it's obvious, the child was on the pageant circuit. But they didn't put it together until the answer was given to them. Later on, same thing with a murder weapon. They assumed it was a steel-toe boot, but it's pageant contestants, tap shoes are also available. Etc. etc. And yes, tap shoes were used in the murder.
And there's two reasons for this. This is how smart the writers are. They honestly think this takes significant deductive ability. And making the characters figure it out faster would be implausible. Or. They want the viewers/readers to feel smart. And one way to do that is to make them able to figure out the pieces before the characters. Characters who are the smartest because we're told they're the smartest.
I love Sherlock Holmes. I know it's implied he is just a normal human but I find it more entertaining to realize its impossible for someone like that to exist.
It falls apart due to the sheer probability of the events involved. However, the stories are almost always entertaining, despite that.
Summary; Man hired to copy books for a large pay. Lots of things don't add up at all. Turns out, it was a long con to use his shop space (he was gone while copying books) to tunnel into a bank across the street. How Sherlock Holmes found this out is completely improbable. For some reason though, I just love watching all the clues fall together. They're also relatively short stories.
I really like stories like the one you describe too though. I think I just like mystery genre in general and I'm not super picky, haha.
>For some reason though, I just love watching all the clues fall together. They're also relatively short stories.
I think almost all stories work like this due to the nature of how you structure a story:
- Introduction - characters and concepts are introduced
- Middle - anything can happen and usually some important new characters and concepts are added
- Build-up - all the pieces are assembled and are being being put together, tension increases
- Climax - the puzzle is completed and shown to the reader/viewer
- Conclusion - payoff for the characters, they lived happily ever after
Detective novels often try to give the reader the opportunity to put the pieces together before the characters do. Other stories can give you a similar pay off though.
It might seem like I'm criticizing things, but I don't think it's a failure per se. A work can be engaging regardless of whether or not the character is accurately portrayed as intelligent or observant or whatever.
Bones is fine television. Sherlock Holmes is a fine read. I have the collected works in two volumes.
But I do notice a tendency among people to use fiction as evidence of reality. So it's good to remind myself that characters are reflections of the author, not of reality.
> And there's two reasons for this. This is how smart the writers are. They honestly think this takes significant deductive ability. And making the characters figure it out faster would be implausible. Or. They want the viewers/readers to feel smart. And one way to do that is to make them able to figure out the pieces before the characters. Characters who are the smartest because we're told they're the smartest.
Or they think the characters wouldn't be familiar enough with that topic to easily hit the solution.
So, the rules of copyright are conceptually very simple:
- Authors own a copyright over their work for a limited amount of time, then it is escheated to the public domain. While a work is under copyright, you need to get permission to copy it.
- You can't copyright ideas - that requires owning a patent, which has a far higher bar[0] to clear in order to get. You only get copyright over expressions of ideas - at a minimum some combination of uncopyrightables that itself can be considered to have a "thin copyright".
- Works that are "based on" another work are called derivative works. If a work is under copyright, you also need permission to make derivative works. If you got permission, then the new work gets its own separate copyright owned by the new artist.
Now, you would assume that whatever is in the public domain is public domain, right? Well, only sort of. Because derivative works get a fresh shiny new copyright, that casts a shadow on the public domain. So I can publish the original text of Shakespeare's Romeo and Juliet, but that doesn't mean that I can perform West Side Story just because it's a derivative of Shakespeare. But at the same time Jerome Robbins can't sue me for performing Shakespeare. The exact shape of a derivative's copyright is the amount of creativity added, and no more.
Therefore, I can still make my own twist on Shakespeare. But I have to be careful. If I decide "hey let's make our own 1950s New York gang warfare take on Romeo and Juliet", then I'm getting closer to just ripping off West Side Story. In fact, there's even a term-of-art for the minimum quanta of copyright: "thin copyright", which is applied to creative combinations of uncopyrightable elements.
Sherlock Holmes is a series of detective stories published as serial fiction[1]. Notably, the series was ended by the creator killing off Sherlock[2], and then brought back about a decade later. This is known by Sherlock fans as "The Great Hiatus"; and after Sherlock was brought back the author started writing him with a lot more emotion.
Let's go forward about one life plus 70 years ahead of time. You're a descendant of Arthur Conan Doyle and your gravy train is about to end, because people can just use Sherlock Holmes and not pay you anymore. Except that only part of the franchise is in the public domain. Specifically the part before the Great Hiatus. And afterwards, Sherlock is arguably a different character. So obviously, if someone makes a Sherlock Holmes adaptation where he acts like post-Hiatus Sherlock, then clearly it's infringing the copyrighted stories!
And if it weren't for those meddling kids, the estate of Arthur Conan Doyle would have gotten away with it, too. Actually, I'm kinda toning down the original argument. They thought that they could recopyright all of Sherlock Holmes by just owning one of the stories with him in it, which is not how copyright works. "Only copyrighted Sherlock is allowed to emote" was their second argument, which they abandoned when settling with Netflix.
It just occurred to me: next year, Mickey Mouse is public domain. I REPEAT: THERE IS ONLY ONE YEAR UNTIL THE COPYRIGHT ON STEAMBOAT WILLIE EXPIRES. So we're going to see all sorts of litigative fireworks as Disney tries to hold onto that cartoon mouse for dear life.
[0] Copyright is automatic, patents require a filing fee. Please stop laughing.
[1] Specifically, as part of a larger magazine. Victorian Brits subscribed to magazines to read Sherlock Holmes in the same way that Japanese teenagers subscribe to Shonen Jump today to read One Piece.
[2] Which was just as controversial and shocking as, say, a manga ending its run in a magazine today. Sherlock Holmes is basically the ur-fandom that all other fandoms were cloned from.
The Supreme Court is already side-eyeing attempts to construct copyright out of trademark ownership. Copyright law itself has a federal preemption clause, which itself was a reaction to states passing their own perpetual music recording ownership schemes, but would apply to any attempt to cobble together non-copyright claims into something that works like a copyright.
For example, states have "right of publicity" laws, but you cannot use them to overturn, say, the copyright interest that a paparazzi has in an unauthorized photo of you. Yes, there are literally court cases in which people have been photographed by paparazzi, reused the photo that the paparazzi took, and then were sued for doing so. Celebrities will counter-argue right of publicity, but federal copyright preemption dissolves those claims[0].
Furthermore, trademark law only specifically applies to source-identifying contexts. And the standard for confusing trademarks is lower than the standard for derivative works in copyright. A year from now when Mickey Mouse hits public domain, if I want to just use him in a book, that's not a trademark violation. If I want to put him on the cover, then that's a trademark violation - but only if the specific way I drew him looks like the trademarked Disney logo. If I were to draw, say, a hyper-detailed portrait painting of the mouse and put that on the cover, that would be obviously not identifying Disney as the source of the work and thus not a trademark violation.
Keep in mind: this is already happening with Winnie the Pooh. There's an indie filmmaker who is making an unlicensed horror movie where the cartoon bear is a murderer. Nevertheless, he has Winnie the Pooh in the title. Nobody is going to confuse this for a licensed Disney film, however, because the cartoon bear is a murderer.
[0] Yes, this also implies that the rights of artists trump the right of privacy in the US, at least when no other crimes are committed. In, say, France, this is the opposite: public photography requires permission from every person in the photograph, so photographing large crowds is about as legally risky as training an AI to draw with copyrighted images in the US.
Yup, Disney is trying their absolute hardest, everything recent from Disney has come with the steamboat intro as their "trademark". So they'll hit people for trademark infringement, after they already trashed/influenced copyright law to get an extension in the first place. Despicable.
Judging by my search through the US trademark database, it looks like the only active trademarks they have are for the words "Mickey Mouse" and not the character design? The actual character only shows up in dead trademarks, as far as I can tell. If this is true, any use of Mickey Mouse as he appears in Steamboat Willie, without calling the character Mickey Mouse, could be legally defensible... if you're willing to go up against Disney lawyers in court
> Authors own a copyright over their work for a limited amount of time, then it is escheated to the public domain. While a work is under copyright, you need to get permission to copy it.
This is the absolute dumbest idea I could have imagined. Like, this is the sort of thing you'd make as an argumentum ad absurdum against copyright maximalism. You literally cannot legally create new works without an unpaid public domain backing them.
...That being said, some kind of state-run licensing scheme could fix some of the bigger problems with long copyright terms. i.e. maybe you only get 20 years of fully exclusive licensing, and then the rest of your life+70 term is compulsory licensing royalties from the state. But I doubt you'd ever see that given how the entire international copyright system is basically non-negotiable nowadays.
They usually solve that problem by requiring state royalty only if the work has elements derived from the work that is in the public domain but nothing derived from currently copyrightable works. Algeria and Burundi are examples of countries that have paying public domain.
The standard for infringement in trademark law is “likelihood of confusion”. Specifically, the question of infringement is whether a junior user’s use of the mark is likely to confuse a member of the public as to the origin of the goods or services.
After Steamboat Willie is out of copyright, anyone will be able to distribute copies of it. If distributors use the mouse image in a way that confuses consumers into thinking their copies came from Disney, however, then they may infringe Disney’s trademark.
This might be a good time to note that a large number a Sherlock Holmes stories have been written with the autorisation of the estate since the death of Conan Doyle.
Of those, I particularly like Neil Gaiman's The Case of Death and Honey.
This is from an article on Mickey Mouse that was linked to in the original Sherlock Holmes article:
Here is where it gets tricky: Disney also holds trademarks on its characters, including the “Steamboat Willie” version of Mickey Mouse, and trademarks never expire as long as companies keep submitting the proper paperwork. A copyright covers a specific creation (unauthorized copying), but trademarks are designed to protect against consumer confusion — to provide consumers assurance about the source and quality of a creation.
Boiled down, any public domain use of the original Mickey cannot be perceived as coming from Disney, Ms. Ginsburg explained.
Out of curiosity, how clear does it need to be presented to the viewer that this is not a Disney production? Does it need to be written out at the beginning "The characters depicted here are entirely fictional and are not from the Disney corporation"? Or can it be at the end credits? Is it sufficient to expect that a viewer seeing the Warner Brothers animation and music at the beginning would know it's not Disney, or does it require more?
Yes (assuming no further bullshit from Disney), in 2024 you would be legally allowed to sell a verbatim copy of the original Steamboat Willie animation, including any bits where it says "this animation was made by Disney" (because that's just factually true). But if you remixed Steamboat Willie into something different, you wouldn't be legally allowed to even remotely suggest that your remix was made by Disney.
Trademarks are supposed to designate the source of a product or good--not the good itself--and you have to actually use it in practice. The estate could have probably created Sherlock brand corncob pipes and maintained a trademark. But that wouldn't allow them to block someone from making a Sherlock Holmes movie or reprinting the books.
It might work for Disney because they have real products and can use Mickey to brand them. Even that won't stop someone from making Steamboat Willy 2. But it might block someone from making MickeyLand Amusement park.
I'm not sure that's correct. I think your 'Evil Sherlock' is a perfect example of what is now allowed without copyright protections.
I believe a trademark just prevents you from releasing a new Sherlock narrative that misleads the public that it's a legitimate story from the original collection.
The Arsene Lupin books have the famous detective "Herlock Sholmes" as one of Lupin's adversaries. AFAIK the original editions used the name Sherlock Holmes, but it was changed to avoid legal issues.
I didn't realise that about the Lupin books. Ironic that Monkey Punch's Lupin The Third comics had copyright issues of there own. (This is why in the original dub of Castle of Cagliostro, Lupin was called "Wolf")
The copyright around Peter Pan is super interesting with an amendment in UK law to extend it to provide income to the very good cause of Great Ormond Street Hospital: https://www.gosh.org/about-us/peter-pan/copyright/
> J M Barrie’s gift of the rights to Peter Pan has provided a significant source of income to Great Ormond Street Hospital
> The copyright first expired in the UK (and the rest of Europe) in 1987, 50 years after Barrie’s death.
> However, former Prime Minister Lord Callaghan successfully proposed an amendment to the Copyright Designs and Patents Act (CDPA) of 1988, giving Great Ormond Street Hospital the unique right to royalties from stage performances of Peter Pan (and any adaptation of the play) as well as from publications, audio books, ebooks,radio broadcasts and films of the story of Peter Pan, in perpetuity.
I think this means that the adaptions you are referring to haven't been published in the UK.
For those outside the UK and unaware GOSH if the most famous and most highly regarded children hospital in the UK. The NHS here get much criticism at times but the prevision for children is world class with a network of incredible children's hospitals. Having been in the situation where my child has been under the care of one of the children's hospitals, they are incredible.
I'm not sure if GOSH can actually legally block derivative works, the relevant clauses are more about claiming a royalty, not a continuation of copyright, ie:
"Provisions for the benefit of Great Ormond Street Hospital for Children.
The provisions of Schedule 6 have effect for conferring on Children's Charity for the benefit of Great Ormond Street Hospital for Children a right to a royalty in respect of the public performance, commercial publication communication to the public of the play “Peter Pan” by Sir James Matthew Barrie, or of any adaptation of that work, notwithstanding that copyright in the work expired on 31st December 1987."
GOSH can of course maintain a moral right as intended inheritor of the rights to approve disprove or derivative works, but as the copyright has expired I'm not sure if they have many legal rights.
I share your understanding. Under the anomalous Peter Pan arrangement, restrictions on derivative works expired (in 2007, after the duration was extended), but GOSH's royalties continue. It sounds a bit like the situation for songwriters who record their own songs. They hold two kinds of copyrights (one on the songs themselves, and one on the recordings). Initially, holders of those copyrights have extensive control over the songs, but then when the recordings' copyrights expire their control diminishes:
https://www.gov.uk/government/publications/copyright-notice-...
I'm curious, if Copyright stays valid for 70 years or so, how are these books only now entering the public sphere if the last of them was written nearly 100 years ago in 1927?
It might be to do with the remaining durations of some kinds of UK (and US) copyrights counting down from the death of the author. (I don't know whether those rules were in place during Conan Doyle's life, but his copyrights might have been retroactively extended.)
So, the story concept of Metropolis will be out of copyright. However the distribution of digitally remastered copies of it can remain legally subject to similar licensing and drm protections that copyrighted/licensed works enjoy — but only insofar as the original media from which they are derived are still privately-owned physical property, in limited supply — right?
> Mickey Mouse is a terrible, boring character that nobody cares about.
That is funny, because I think most Germans born in the 80ies to mid 90ies would disagree. We got a daring adventurer and a hard-boiled detective. I don't think it was content specifically produced by the German publisher for the German market, but it is possible, that there was more focus on that content opposed to "classic mickey".
Edit: I looked it up: It looks like the detective stories were English, but first compiled for Denmark, whereas the adventurer stories were from the Italian publication "Topolino".
Disney+ uses a little clip of "Steamboat Willie" in the leaders to streamed Disney movies. Making out-of-copyright Steamboat Willie into a trademark thing muddies the waters at least a little, and I'd guess that's why Disney+ uses it.
Legally, yes, but even there the PR flacks confuse the issue by lumping trademark, copyright, patent and sometimes even trade secrets under "intellectual property".
Spider-Man is almost entirely owned by Marvel. Spider-Man's live action movie rights are owned by Sony as long as they produce at least one film with the character every 5 years and 9 months. This includes co-producing them with Marvel. Universal owns the film rights to both solo Hulk and Namor films. Finally, Fox owned the right to make 13 X-Men films, Fantastic Four, and Deadpool films over 20 years, but Disney bought those rights back.
The film rights are owned by Sony. As part of the deal in relinquishing some creative control to Disney for the MCU, Sony also has exclusivity to Spider-Man centric video games (e.g., other games, like Midnight Suns, can use Spider-Man as a supporting character, but not the primary character).
How is it sillier that any someone can use Mickey Mouse for whatever than that someone can use Mickey Mouse to create cartoons, but only some random people who happen to be hired by a specific giant corporation?
Uh... doesn't the EU have the same life+70 terms the US has? In fact, weren't they the reason that Disney was able to get their term extension in the US?
US copyrights at the time these Holmes stories were published were good for 2 28-year terms, with a required renewal to get the second one. The Copyright Act of 1976 changed the term to "life of the author plus 50 years," but only for works created in 1978 or later. For works from before 1978 still in copyright under the old system, it extended the renewal term's length by 19 years for a new total of 75 years.
The US thereafter had no works enter the public domain until 1998, with the oldest works that were still covered at the '76 Act's date of effectiveness (those from 1922) having finally expired 20 years later (copyrights always run through the end of the calendar year they expire in).
Later that year, Congress tacked another 20 years onto all future and still-active existing copyrights with the Copyright Term Extension Act, so the public domain "paused" again until 2019, when works from 1923 entered the public domain. There have been no more extensions, so the following years have continued moving forward with successive years' works losing copyright protection. In 2023 the relevant year will be 1927.
The final Holmes stories at issue here are from 1927, and so will be public-domain on January 1. It will be quite some time before anything under the "life of the author" regime in the US will fall into the public domain: authors who published works and then also died in 1978 would have the soonest expiration, in 2049.
Gotcha. So America's attempt at reconciling the Berne Convention and pre-1973 law gave Arthur Conan Doyle extra copyright years that didn't apply in the EU or UK.
Also, I wouldn't be surprised if the expiration pause triggered by the 1976 act winds up being longer and more intolerable than the Berne or EUCD/SBCTEA[0] pauses. There's a lot of 1978 artists still alive today, after all. And of course, if anyone ever figures out aging reversal and functional immortality, then we also get perpetual copyright. (Who the fuck thought life terms were a good idea?)
[0] More derisively known as the Mickey Mouse Protection Act
Oh yeah, once we're into life of the author territory it becomes much more unpredictable when things will actually go out of copyright. And in 2049 and forward for many years, you'll have a mixture each year of older 95-year expirations and newer life+70 ones... it's a mess.
