What Does Sherlock Entering the Public Domain Really Mean?


In late December, a federal judge ruled that the character of Sherlock Holmes was in the public domain. The determination came because the editors of an anthology of new Sherlock Holmes stories — ones written recently by fans, not Conan Doyle — refused to pay a license to the Arthur Conan Doyle estate. The estate argued that as about ten of the Sherlock stories remain under copyright, the entire character of Sherlock Holmes was protected. The judge disagreed, and now everyone is free to write and publish their Holmes/Watson slashfic without applying to the estate for permission.

Though it made a lot of noise because of the famous names involved, but actually the law on this case was very straightforward. Even the moral case is pretty clear here; a short search didn’t give me a conclusive idea of who all has an interest in the Conan Doyle estate other than “relatives,” but as Conan Doyle has no direct descendants left we may presume they were distant ones.

Beyond that, what does the ruling mean? Well, undoubtedly, it caused a pang, though perhaps a small one, in certain greedy hearts in the entertainment industry. Specifically, there are probably some Disney executives who sighed heavily upon hearing of it. Because they know full well that eventually, one day, the public domain bogeyman is going to catch up with Mickey Mouse. One day about five years from now, as it happens.

Sherlock was never a big enough juggernaut to muster the lobbying money that it took to implement the Copyright Term Extension Act. And in fact, it remains to be seen whether, in five years, Mickey Mouse, and Disney write large, will be either. A lot’s happened in twenty years, and chief among the factors, as that link above to the Washington Post points out, is the rise of the internet. And there are a lot of people on the internet, as we know, who basically don’t believe in copyright at all, let alone copyright with a long period of protection attached. One envisions a sort of anti-SOPA like movement being pretty vocal this time around to the nation’s politicians.

As a rule, I am more sympathetic to copyright than most. Partly that’s because I did a little copyright practice when I was a lawyer, which gave me a view of the other side of the fence. The other side of the fence are a lot of artists and writers who even before the age of copying rarely made much of a living for their work. And they are now in the position of looking churlish while they guard their meagre earnings from further pillaging by the vapid, context-free conviction that if you really loved your art enough you’d give it away for free.

I certainly agree that people’s great-grandchildren, and frankly corporations, are not entitled to unending streams of license revenue. But there is a significant constituency of people in between, say the recently widowed partners of artists, who I think have a case that they deserve some money. And the easiest way to achieve that is to extend a finite amount of protection after someone’s death. If that puts people, like the complainants in this case, at a disadvantage when they put together anthologies of Sherlock Homes stories knowing full well that such stories wouldn’t sell if they were called Herlock Sholmes stories, so be it. At least, for a while.