Free Sherlock

Is Sherlock Holmes in copyright’s public domain?  #freesherlock.

An insiders’ controversy – both inside copyright circles and inside the circle of Sherlockians – is spilling into popular media.  In a nutshell, the first Sherlock Holmes stories were published sufficiently long ago that they are in the public domain; the later stories are still covered by copyright.  If fictional characters can be protected by copyright (a proposition that I’ll accept for purposes of this post, because the cases tell us so), then do we live today with the public domain Sherlock of the earlier works, or the copyrighted Sherlock of the later works. Today’s NYTimes features a summary of the dispute that includes this tantalizing quote by which the Conan Doyle estate tries to bridge the gap:

“The character Sherlock Holmes is protected by copyright,” said Benjamin Allison, a lawyer for the estate, adding, “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”

This is … odd, I think, to say the least.  It reminds me of the notion that a TV series is a single copyrighted work that expands by one item with the release of each successive episode.  And it reminds me of the fact that this is a very odd notion.  Copyright law has not always required “fixation” and does not require it today except in the US and countries that follow the US model.  But copyright usually requires that there be a “work” and that the “work” be stable and specific enough that we know what “it” is.  Character copyrights are often subject to challenge on this ground, because character copyrights almost always are grounded in exploitation of a single character across multiple stories or other, larger works.  Sherlock Holmes, however, turns out to be a particularly slippery character, so to speak.  The estate seems to be arguing not that Sherlock Holmes evolved as a character, but instead that the Sherlock Holmes of the early works was simply incomplete.

Contrast that argument with the way a federal district court looked at Superman, who is the subject of a continuing and bitter lawsuit over efforts by heirs to the artists who created Superman to terminate the transfer of rights in the character.  Superman acquired different attributes in his various portrayals over time, but the court decided that a termination notice that claimed rights in

[E]ach and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element, or indicia reasonably associated with SUPERMAN or the SUPERMAN stories, such as, without limitation, Superman, Clark Kent, Lois Lane, Perry White, Jimmy Olsen, Superboy, Supergirl, Lana Lang, Lex Luthor, Mr. MXYZTPLK …, Ma and Pa Kent, Steel, the planet Krypton, Kryptonite, Metropolis, Smallville, or the Daily Planet. Every reasonable effort has been made to find and list herein every such SUPERMAN-related work ever created. Nonetheless, if any such work has been omitted, such omission is unintentional and involuntary, and this Notice also applies to each and every such omitted work.

was sufficiently detailed to pass muster under the Copyright Act. (Siegel v. Warner Bros. Entertainment Inc., 690 F. Supp. 2d 1048 (C.D. Ca. 2009). (That notice was in addition to other date-specified works claimed by the heirs.) Superman was just one guy, other words; any particular Superman was one token of a broader type. But Sherlock Holmes was a fuzzy, inchoate character – until Conan Doyle stopped creating.

We’ve seen this before: Rights owners claiming the power unilaterally to shape the world of obligation. Contracts scholars eventually (sort of) reconciled themselves to the idea of shrinkwrap, clickwrap, and open-the-box agreements by developing the idea of “rolling contracts” — which is an accommodation to the fluid world of e-commerce but anathema to the classic world of singular offer-and-acceptance. The power of the rolling contract, of course, is the power of the offeror to impose an expanding landscape of obligation on the often-unwilling, or at least unwitting, offeree. The Conan Doyle estate seems to be relying on some sort of related “rolling copyrighted work” theory.

See also recent coverage in The Economist, among other places.