Sherlock Holmes and the Mystery of Public Domain
If you enjoy reading Electric Literature, join our mailing list! We’ll send you the best of EL each week, and you’ll be the first to know about upcoming submissions periods and virtual events.
Your Sherlock Holmes fan fiction is now just regular fiction, as a US court has ruled that Sherlock Holmes is in the public domain. Wait, you may be asking, wasn’t Sherlock Holmes already in the public domain? Didn’t he first appear in freaking 1887, well over 100 years ago?
Even though the US has absurdly long copyright — it took 95 years for Holmes to start appearing in the public domain — companies and estates routinely try to find loopholes to keep copyright extending for forever. In this case, the Doyle estate has been using an argument out of an undergrad English class discussion: that Sherlock Holmes is a “round character” and the full character can’t be public domain until every single Holmes story has passed the copyright expiration mark. Since Sir Arthur Conan Doyle fleshed out Holmes into the 1920s, and copyright extends the life of the creator plus 70 years, the full Sherlock Holmes shouldn’t be in the public domain yet.
Luckily, the judge apparently came from a different school of literary criticism. As Michelle Dean at Gawker notes, his decision even included a discussion of Star Wars:
Repeatedly at the oral argument the estate’s lawyer dramatized the concept of a “round” character by describing large circles with his arms. And the additional details about Holmes and Watson in the ten late stories do indeed make for a more “rounded,” in the sense of a fuller, portrayal of these characters…We don’t see how that can justify extending the expired copyright on the flatter character. A contemporary example is the six Star Wars movies: Episodes IV, V, and VI were produced before I, II, and III. The Doyle estate would presumably argue that the copyrights on the characters as portrayed in IV, V, and VI will not expire until the copyrights on I, II, and III expire.
And that’s how the case of Holmes and the Public Domain was solved… at least until the appeal.