Sherlock Holmes and the Case of Copyright Duration

sherlock1Is Sherlock Holmes in the public domain?  Holmes scholar and lawyer Leslie S. Klinger believes so, and he is suing the Conan Doyle estate to prove just that.

It all started, as these things do, with money.  You see, a few years ago Klinger published a new Holmes novel and, like many who wished to capitalize on the popularity of Sherlock (Guy Ritchie and Steven Moffat in particular), he paid a hefty licensing fee to the Conan Doyle estate for the privilege.

Recently, Klinger decided to have another go at Sherlock; in particular, he wanted to publish a collection of short stories. Once again, the Conan Doyle estate demanded a payout.  Much like the Tolkien estate, the Conan Doyles are renowned to be fiercely protective of their copyright and they doggedly pursue anyone whom they feel infringes it.  This time, however, Klinger decided to sue the estate as a preemptive measure, claiming that Holmes and his entire canon (supporting character like Watson, Moriarty, Mrs. Hudson, the house at 221B Baker St, character traits like Holmes' deductive reasoning and friendship with Watson, etc.) were in the public domain and thus, he didn't have to pay them a licensing fee.

This is a pretty serious move and in all likelihood it has legal support.  That's because in the United States all works published before 1922 are automatically in the public domain and are thus available for anyone to profit from. [Author's note: aside from pre-1922 works, any work whose copyright expires will move into the public domain.]  Sherlock Holmes made his first appearance in 1887's A Study in Scarlet, and nearly his entire world found its way into print before 1922.  By that logic, it's hard to see how the character won't be found to be in the public domain, and if a judge does find for Klinger, that's going to have major repercussions for the character.

In contrast, the estate argues that because Sir Arthur was still publishing Holmes stories as late as 1927, the character and his entire canon don't fall into the public domain. That's where the wrinkle in this case appears.  Apparently, one of the authors whose short story Klinger wants to publish used a Holmes character that didn't appear in a published work until 1924. The case is really interesting and you can read all about it here.

I brought up this issue because of a quote at the end of the article.  When interviewed about the Klinger v. Conan Doyle case, New York based entertainment lawyer John J. Tormey III said that, "Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly."  Amen brother!  On at least two occasions (here and here), I've discussed how the original purpose behind copyright protection in the U.S. wasn't to grant the author everlasting control at the expense of all others, but to foster innovation for the betterment of society.  Our creative landscape is littered with copyright owners (some individuals and families, but mostly corporations), holding their copyrights in an iron death grip, suing the crap out of anyone large or small (usually small), in order to prevent them profiting from that copyright.

That's why I think we need a drastic overhaul when it comes to duration of copyright - in modern political parlance, I would say that I've "evolved" on the matter... which really means I was never a fan of the current duration allowing a copyright to last for the life of the author, plus 70 years (and going up to 95 years for corporate copyright holders), but I just never felt comfortable saying it aloud until now.  Forgive my lack of lawyerly eloquence, but life plus 70 is just too damn long.  Look, I get that if you create something that's profitable, you want to be able to control it, make your living off of it, and provide for you family.  That's a natural instinct and a praise-worthy one.  Piracy - the use of your work without your permission - should be dissuaded and punished where appropriate.

The problem with the current durational scheme is that it results in less innovation and artistic expression and more lawsuits.  Under the current law, the author's estate can use and exploit the author's original work for several generations after he dies. If you can stay rich off of your grandpa's work, what incentivizes you to create your own work of artistic expression...to add something to society?  Even worse, many works of artistic expression end up being purchased by large corporations who use their considerable resources to suppress smaller artists who wish to use those copyrights as points of inspiration for their own work.  [Corporate bullying of individual artists is one of my bugaboos.]

That's why I propose the following four-tiered amendment:

  1. A copyright will last for the life of the author and no longer.  Upon the author's death, the copyright will move into the public domain.
  2. If the author sells the copyright to another party (a corporation, say), the party will have 15 years to use the copyright.  If the party does not use the copyright in 15 years, the copyright will revert in full back to the author.  If the author dies before the copyright can revert back to him, the copyright will expire and the work will move into the public domain.
  3. if the author sells the copyright to a non-corporate buyer, and the buyer uses the copyright within the 15 year timeframe, the copyright will last for the life of the buyer.  Upon the buyer's death, the copyright will move into the public domain.
  4. If the author sells the copyright to a corporate buyer and the corporation uses the copyright with the 15 year timeframe, the copyright will last for 70 years, measured from the original sale of the copyright.  At the end of the 70 year period, the copyright will move into the public domain.

I know, this makes me look like an anti-free market socialist.  In fact, I'm willing to bet within two days of publishing this post, I'll get some pushback on the feasibility of this system or the logic behind it.  I don't care though. The truth is, limiting copyright ownership is the best way to spur innovation and growth, which is what our founding fathers envisioned.  A system like this will help limit perpetual copyright monopolies and inspire copyright holders to be pushing boundaries.  Hell, even The Economist agrees that copyright durations should be shorter, so I can't be totally out of my mind.

Sherlock Holmes is probably in the public domain already, but if he isn't, he should be.  Arthur Conan Doyle created him over 120 years ago and his descendants have profited amply from his popularity.  Now it's time for Conan Doyle's great-grand kids to go out there and make their own mark on society and let the world have Sherlock.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA