Sherlock lives in public domain, US court rules in case of the heckled brand

[jgaiser]

A US court has ruled that Sherlock Holmes – along with 46 stories and four novels he’s appeared in – is in the public domain, reaffirming the expiration of the copyright once owned by the estate of Scottish writer Arthur Conan Doyle.

http://www.theguardian.com/books/201...tate-copyright

[HarryT]

But it's important to note that (as indeed the article states) the final 10 short stories (those contained in "The Case-Book of Sherlock Holmes") are still protected by copyright in the US, although they are in the public domain in most other countries.

[CWatkinsNash]

Originally Posted by HarryT

But it's important to note that (as indeed the article states) the final 10 short stories (those contained in "The Case-Book of Sherlock Holmes") are still protected by copyright in the US, although they are in the public domain in most other countries.

Right, but the bigger issue here is the use of the characters, which is what they were claiming - that the characters and earlier works should be off limits because some of the stories which present them as "round characters" were still under copyright protection.

They've apparently applied for trademark protection for the characters in the UK, though it remains to be seen how that will go. Though it's not unusual for fictional characters to be granted such protection, I don't know if it's been attempted in this way before - claiming protection for the brand that they didn't actually create, that's largely been marketed by others in its history, and right on the heels of a copyright dustup, which makes it look like they are attempting to use trademarks as a form of copyright extension.

[HarryT]

Originally Posted by CWatkinsNash

Right, but the bigger issue here is the use of the characters, which is what they were claiming - that the characters and earlier works should be off limits because some of the stories which present them as "round characters" were still under copyright protection.

Yes, indeed.

They've apparently applied for trademark protection for the characters in the UK, though it remains to be seen how that will go.

I can't see that succeeding. Conan Doyle died in 1930, so his work has been in the public domain in the UK for many years.

[CWatkinsNash]

Originally Posted by HarryT

I can't see that succeeding. Conan Doyle died in 1930, so his work has been in the public domain in the UK for many years.

I can't either. And I don't even know if they think it will succeed - it's possible that they did it just so they could use that as a threat of possible future lawsuits to discourage anyone from going forward if they lost this case.

[Fbone]

However, books published in the UK, until now, have required the estate's "authorization" or "blessing" if they wanted it sold in the US. I suspect it's a polite way of greasing their palm.

[JSWolf]

Originally Posted by CWatkinsNash

I can't either. And I don't even know if they think it will succeed - it's possible that they did it just so they could use that as a threat of possible future lawsuits to discourage anyone from going forward if they lost this case.

I would think if they lost, they would not have any more possible lawsuits as there's nothing to sue for.

[SleepyBob]

If something like Sherlock Holmes (or Mickey Mouse) ends up being trademarked, how does that interact with copyrights, once they expire?

[JSWolf]

Originally Posted by SleepyBob

If something like Sherlock Holmes (or Mickey Mouse) ends up being trademarked, how does that interact with copyrights, once they expire?

Time time of copyright past death was increased in the USA because of Micky Mouse. I just hope it doesn't happen again when the mouse gets near the time to give up the copyright.

[tubemonkey]

Originally Posted by JSWolf

Time time of copyright past death was increased in the USA because of Micky Mouse. I just hope it doesn't happen again when the mouse gets near the time to give up the copyright.

I'm cheering for the mouse. Give him forever copyright.

[fjtorres]

Originally Posted by SleepyBob

If something like Sherlock Holmes (or Mickey Mouse) ends up being trademarked, how does that interact with copyrights, once they expire?

There are in place trademarks for some rather prominent characters and the way it (theoretically) works is that the stories may enter the public domain but not the characters themselves. So no new stories can be told using the trademarked elements but the old stuff can be freely distributed and commercialized. Not totally unfair, especially with visual trademarks like cartoon and comic book characters.

As is, the companies in question (Disney, TimeWarner) are actively exploiting their trademarked characters and have subtly altered them over the decades so there is no shortage of material featuring the contemporary versions. This both strengthens their trademark and weakens any potential market for attempts to exploit the PD versions. For example, you're not going to see many kids wearing steamboat willie pajamas because that is not the mouse they are looking for. Which means there won't be much value in trying to invalidate the trademark even if it were possible.

Similar cases can be made for the older characters like Captain America, Namor, the Human Torch, Superman, Batman, etc. Even relatively minor golden age comics characters like Starman and Manhunter have valuable trademarks and are fiercely protected by following the trademark rules religiously. By now both DC and marvel have IP staff dedicated to making sure no character or character name falls into the PD or gets hijacked as happened with "Captain Marvel".

In the Holmes case, however, the trademark coming so late in the game the odds are the mark will be denied. There simply isn't much left to trademark. In fact, things like the familiar silhouette or Watson's look come from the movies, not the stories themselves.

[JSWolf]

Originally Posted by tubemonkey

I'm cheering for the mouse. Give him forever copyright.

So then you don't want anything to ever become public domain. Well, to you.

[Dngrsone]

Just because a character/concept is still capable of making money, it doesn't mean someone can sit on the copyright/trademark forever. There is a certain point where ubiquity must win and the free lunch must end.

The corporate entity that owns the mouse has pushed those boundaries way out of proportion, and by doing so has stifled innovation. They have also paved the way for other entities to do the same.

There are characters out there that are languishing because the people who own them hope to squeeze another few bucks out of them, but if they were public domain, there would be a whole new rennaissance for them and their genres.

[fjtorres]

Originally Posted by Dngrsone

Just because a character/concept is still capable of making money, it doesn't mean someone can sit on the copyright/trademark forever.

That is exactly what it means.
As long as you are actually *trying* to make money off a trademark the law says nobody can muscle in, no matter how brilliant or creative they might be. You don't even have to be making money off the property, just be able to police its use.

If Doyle had trademarked SHERLOCK HOLMES, the estate would've won, hands down. Absent an active trademark, they're out of luck.

The owners of the James Bond trademarks have had issues defending aspects of their products precisely for not registering their trademark in a timely fashion.

http://www.mondaq.com/x/84656/Tradem...es+Bond+Brands

[Dngrsone]

I know what a trademark is. I am saying that 'Sherlock Holmes' is not an imprint for a business (unless it's a housing development somewhere), and shouldn't be trademarked. It should have been copyrighted, and the author, being sufficiently dead now, has no need to hold exclusive rights to that story.

Holding on to it is either a elderly child, grandchild (or other relative) or corporate entity that a) did not create the characters and/or story, and b) harbours no reasonable right to hold those properties in abeyance.

Rather than maintaining an iron grip to the past, why not build new characters for the future?

I think I know the answer-- they haven't the talent. And rather than try to cultivate that talent, they will exercise what resources they do have to retain control of those ancient properties...

Think about it-- if the entity that held Sherlock Holmes were able to secure that property back, then every descendant of any talent would fight to do the same: free lunch.

Can you imagine some scion of George Washington wanting to get some miniscule percentage out of the use of their ancestor's image? The US Government alone would have to pay out the nose.