In case you think Sherlock Holmes lives at 221B Baker Street, think again. In a recent court decision, the Seventh Circuit Court ruled that Sherlock is now in the public domain (at least all the stories from 1887 to 1922). The issue was brought up when Leslie Klinger, one of the foremost scholars on Sherlock Holmes and Count Dracula, sued the Conon Doyle Estate. Klinger had written the Annotated Sherlock Holmes for which his publisher had paid a $5,000 licensing fee and was approached by the estate again when he planned to release another book on Sherlock Holmes. The estate informed Klinger that if he refused to pay, they would have the book removed from Amazon, Barnes and Noble, and similar retailers.
The argument of the estate was that Sherlock Holmes became a rounded character in the stories published from 1923 to 1927, which are still protected by copyright law. The Copyright Term Protection Extension Act, known more popularly as the Mickey Mouse Protection Act thanks to Disney’s extensive lobbying efforts to protect their rodent, extended copyright protection to 2019 for works published in 1923 that still had valid copyright protection in 1998. Sherlock did indeed became more emphatic and “human” so to speak in the later 10 stories and the estate claimed that using the Sherlock character in general–until protection on the last work expired–would be infringement.
This is an interesting argument going into the creative embodiment of a character within a work rather than taking the work as a whole. Although the court agreed that characteristics of Sherlock did change over time and using such elements would amount to infringement, it disagreed with the “rounded character” argument. The court even cited Star Wars as an example! Parts 4, 5, and 6 of the Star Wars saga were released from the late 70's to early 80's, well before parts 1, 2, and 3 came out. Following the estate’s logic, the earlier movies will not enter the public domain until copyright protection for the later movies expire, but the court held otherwise. This would allow authors to extend their copyright protection indefinitely. Characters can be used in an ongoing series as long as only the creative expression from matter that falls within the public domain is used.
Nowadays, a successful book, movie, or video game spawns a whole series of neverending sequels. In the case of graphically representable works, trademark protection is possible if the work is associated with selling goods and/or services. Today, merchandizing anything and everything weeks leading up to the release is the norm–just take any Disney movie for example; stores are flooded with toys, t-shirts, and board games. Trademark protection is technically perpetual if used and protected. If for example, Sir Arthur Conan Doyle had decided to sell deerstalkers he could have trademarked a symbol of Sherlock wearing one, as well as the phrase “Elementary, my dear Watson.” The younger generation probably does not even know what a deerstalker is and recognizes it as “that cap all detectives wear while smoking a pipe!”
For more information on all things IP, check out Traklight's Resources.
Does your intellectual property need protection? Take the risk quiz to find out.