Sherlock Holmes Is in the Public Domain, American Judge Rules(artsbeat.blogs.nytimes.com)
artsbeat.blogs.nytimes.com
Sherlock Holmes Is in the Public Domain, American Judge Rules
http://artsbeat.blogs.nytimes.com/2013/12/27/sherlock-holmes-is-in-the-public-domain-american-judge-rules/
119 comments
> This seems sensible if you imagine Sir Doyle "discovering", not "inventing", Watson.
If you imagine that, then you would be imagining Watson right out of the scope of copyright, which covers creations, not discoveries.
If you imagine that, then you would be imagining Watson right out of the scope of copyright, which covers creations, not discoveries.
> If you imagine that, then you would be imagining Watson right out of the scope of copyright, which covers creations, not discoveries.
More precisely, copyright covers expressions, not inventions or discoveries. And any patent on Watson has long run out.
So it seems to me that writing new stories involving Watson, even ones where he played rugby, should be perfectly fine. Just reproducing the later stories is not allowed without permission.
More precisely, copyright covers expressions, not inventions or discoveries. And any patent on Watson has long run out.
So it seems to me that writing new stories involving Watson, even ones where he played rugby, should be perfectly fine. Just reproducing the later stories is not allowed without permission.
I think you're distinction is a semantic one. pavpanchekha could have easily framed his observation as Sir Doyle "creating" aspects of Watson's character.
No, the whole point was the distinction between "discovering" and "inventing", a distinction which would not exist if "discovering" was replaced with "creating".
You're not a Platonist, are you?
Regardless, it would be plausible to imagine a character conceived of by an author, who has curious behaviors in early stories, the motivation for which is only revealed in a much later story. This would be an example of a process of "discovery" about a character, but this discovery is happening in the form of revelations in the text rather than by the act of the author.
If you wanted to make the analogy more precise, you could imagine a character created with peculiar traits, and the author later realizes a single explanation for those traits which they had not originally conceived, which they then write into a story. In these two cases, the effect on the reader might be identical, but in one essential information about the character was held back and in one it was developed later.
All of this is a little academic, though, since none of the information about Holmes & Watson in the post-1923 stories has a material effect on their characters, as ACD's estate attempted to argue.
Regardless, it would be plausible to imagine a character conceived of by an author, who has curious behaviors in early stories, the motivation for which is only revealed in a much later story. This would be an example of a process of "discovery" about a character, but this discovery is happening in the form of revelations in the text rather than by the act of the author.
If you wanted to make the analogy more precise, you could imagine a character created with peculiar traits, and the author later realizes a single explanation for those traits which they had not originally conceived, which they then write into a story. In these two cases, the effect on the reader might be identical, but in one essential information about the character was held back and in one it was developed later.
All of this is a little academic, though, since none of the information about Holmes & Watson in the post-1923 stories has a material effect on their characters, as ACD's estate attempted to argue.
> In these two cases, the effect on the reader might be identical, but in one essential information about the character was held back and in one it was developed later.
But we aren't talking about the reader. We're talking about the author. Plot reveals later in the story (that the reader experiences) have nothing to do with an author writing those things over time.
If Doyle 'discovered' Watson (not created), then Watson is not copyrightable. If Doyle created Watson (which he clearly did, being the author of a fictitious character in a series of fictional novels and stories) then Doyle didn't "discover" anything, he just refined his creation.
But we aren't talking about the reader. We're talking about the author. Plot reveals later in the story (that the reader experiences) have nothing to do with an author writing those things over time.
If Doyle 'discovered' Watson (not created), then Watson is not copyrightable. If Doyle created Watson (which he clearly did, being the author of a fictitious character in a series of fictional novels and stories) then Doyle didn't "discover" anything, he just refined his creation.
you're -> your
While we're at it, it would be "Sir Arthur" in short form, though it's really nor proper to use the honorific at all after a knight is deceased -- the knighthood is strictly a lifetime honour, and dies with the knight. In the case of people like Arthur Conan Doyle, it makes biographical sketches awkward, since he was a Knight Bachelor, not a knight of an order of chivalry, so there isn't a "real" postnominal you can use in a list of awards and decorations ("Kt" is usually used these days, but it's easily confused with "KT", indicating a Knight of the Order of the Thistle, when set in traditional small caps); one needs to either break the rules or use something like "in life he was styled...".
I believe the safest and least weird thing to do is simply not call anyone by the ridiculous honorific "Sir" or generally maintain the distinction between knights of any order and the rest of us.
Do you consider doctor (MD or PhD) to be similarly ridiculous, or do you make a distinction?
Also ridiculous. That some institution granted you a degree doesn't compel the rest of us to call you by a special name. When I ask medical doctors about that (my wife is one, for example), their main reason for supporting the "Dr" title is that it creates a sort of formal separation between the patient and the doctor which keeps things professional, similar to how we had to call our elementary teachers "Mr" or "Ms". I don't buy that argument; for example, why wouldn't that apply equally to nurses? To me, it's seems like a trick for lending them an artificial air of authority.
I know a lot of people with PhDs, but I can't think of any who want to be called "Doctor", because that's exceedingly silly. I know it works a bit differently outside of the US.
I know a lot of people with PhDs, but I can't think of any who want to be called "Doctor", because that's exceedingly silly. I know it works a bit differently outside of the US.
I found it amusing to learn that, in some parts of the world, surgeons are conferred the title of Mr, Miss, Mrs or Ms as preferential to Dr, as if above the petty nonsense of using "Dr" as a social differentiator.
http://en.wikipedia.org/wiki/Surgeon#Titles
And now we are wildly off-topic!
http://en.wikipedia.org/wiki/Surgeon#Titles
And now we are wildly off-topic!
I tend to agree. I think agreeing within a group to differentiate based on honorifics can be useful if the group is homogenous enough in nature, but for a society in general it just creates arbitrary distinctions.
> I know a lot of people with PhDs, but I can't think of any who want to be called "Doctor", because that's exceedingly silly. I know it works a bit differently outside of the US.
Yes, I've noticed a very strong correlation between country and insistence on using a title conferred by a PhD. Americans do in general seem fairly relaxed about it.
Yes, I've noticed a very strong correlation between country and insistence on using a title conferred by a PhD. Americans do in general seem fairly relaxed about it.
The social rule I was taught (in the U.S.) is that if you have a PhD in whangabangology, it's okay to call yourself "Dr. Blah" or "Joe Blah, PhD" in a professional context (writing a paper on whangabangology, or teaching it, or giving a professional talk, or appearing at an official university function), but not in a social context (making a restaurant reservation, say, or being introduced to someone at a party).
Professional usage varies a lot by institution. Where I went to grad school, undergraduates usually use "Doctor" or "Professor" when addressing a member of the faculty, but graduate students usually call the professors that they actually know by their given names. I understand that's not the case everywhere; at some schools even grad students who have worked with a professor for years are still expected to address them by title. I have heard (but have not personal knowledge one way or the other) that the University of Chicago is one of these.
Professional usage varies a lot by institution. Where I went to grad school, undergraduates usually use "Doctor" or "Professor" when addressing a member of the faculty, but graduate students usually call the professors that they actually know by their given names. I understand that's not the case everywhere; at some schools even grad students who have worked with a professor for years are still expected to address them by title. I have heard (but have not personal knowledge one way or the other) that the University of Chicago is one of these.
Americans see everyone as equal in status (in theory); in paragraph two of our first document, we say that it is, in fact, self-evident that all men are created equal. Since we are all equal, titles don't really serve much purpose, as the whole point of titles is to distinguish yourself.
"are created equal" means a very different thing than "are equal".
Even Americans who really do believe that all people are created equal (which any discussion thread on any major forum -- including HN -- on gender or race issues, among other topics, will reveal is far from all Americans) rarely believe that all people are equal.
Even Americans who really do believe that all people are created equal (which any discussion thread on any major forum -- including HN -- on gender or race issues, among other topics, will reveal is far from all Americans) rarely believe that all people are equal.
>we say that it is, in fact, self-evident that all men are created equal.
How is this self evident?
How is this self evident?
That phrase is from the Declaration of Independence, one of the US's founding documents:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
http://www.archives.gov/exhibits/charters/declaration_transc...
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
http://www.archives.gov/exhibits/charters/declaration_transc...
The nature of self-evidence is that you don't have to say how.
(Though I'm not sure I agree with the parent point that Americans as a group really believe equality in the relevant sense here.)
(Though I'm not sure I agree with the parent point that Americans as a group really believe equality in the relevant sense here.)
Thank you for this detailed and informative post. I'm unable to edit my comment now, but I hope I'll be reminded of your caution in the future.
"At a deep level, the act of discover and the act of creation are identical." -Kevin Kelly (1)
Years ago I spoke with Kevin about this notion and it's relation to quantum mechanics. "Did the particle already exist in XYZ state (discover) or did you observation manifest (create) it." We agreed, it's the exact same thing.
(1) http://kk.org/thetechnium/archives/2010/01/tending_the_gar.p...
Years ago I spoke with Kevin about this notion and it's relation to quantum mechanics. "Did the particle already exist in XYZ state (discover) or did you observation manifest (create) it." We agreed, it's the exact same thing.
(1) http://kk.org/thetechnium/archives/2010/01/tending_the_gar.p...
The irony is that the 10 post-1923 stories are mostly sub-par and include some of the most out-of-character moments. In my mind not using them is an improvement, though I doubt that my opinion is authoritative enough to influence the case.
This would leave the copyright open-ended forever, so long as they continued to evolve the character..
Well, so in fact the court did strike down the Conan Doyle estate's interpretation of things, so we can continue talking about Conan Doyle creating, not discovering, the character of Watson. And you are right: siding with the Conan Doyle estate would raise questions.
If you'll excuse me to snark for a moment, though: isn't that exactly what's happening with Mickey Mouse? The character keeps evolving and the copyright remains open-ended forever?
If you'll excuse me to snark for a moment, though: isn't that exactly what's happening with Mickey Mouse? The character keeps evolving and the copyright remains open-ended forever?
No that is not what is happening with Mickey Mouse. What is happening with Mickey Mouse is every time Steamboat Willie comes close to being released into public domain, the length of copyright is extended.
Steamboat Willie came out after 1923, and is currently set to expire in 2023. Unless of course the law is changed to extended it.
I'm in favor of IP laws, including copyright, but with the idea of creating incentives for people to create. Putting Sherlock Holmes in the public domain is probably not going to have much effect on Arthur Conan-Doyle's writing output, though, so it's probably a good thing at this point.
I'm not sure I understand why characters themselves are copyrighted. I get why its bad to just copy someone else's work, but if I go to the effort to write my own book about the same character, who cares? The world isn't worse off for fan fiction.
Though copyright as it is has issues, this seems very off, as characters are the work, moreso than the settings and even plot - as only one of those three items tends to be unique. I've written books and stories, and the best answer I can give to you is this:
Those characters do not live in your head. They live in mine. I have full control in expressing who and what they are on paper for others to learn more about them. No one else does, no one else can say they did this or that because they don't have any control over my creations, my thoughts, my personal universe. To say someone else can just write with my characters is tantamount to violating an innermost personal space - indeed, it's intruding on one of the most personal forms of control and self-expression possible. You can't just create situations and settings for things that only exist in my mind. I want others to know, so I'll put out a public work. That doesn't mean someone can put something in my world, my character's lives, without my approval. Copyright is just a legal extension of that God-hood I exert over things in my head.
It is just too bad that the current form of copyright is far from ideal, as we've seen. I'm not against fan fic or other expression of still-in-copyright works either, I tend to like them and tend to agree that they do more good than harm, just pointing out that it does matter in some cases, discretion of the author should always be allowed, and just being well-known and popular doesn't magically make that control disappear. Being dead does though, so much of this doesn't really apply to the original topic, but felt I had to make a response to this.
Those characters do not live in your head. They live in mine. I have full control in expressing who and what they are on paper for others to learn more about them. No one else does, no one else can say they did this or that because they don't have any control over my creations, my thoughts, my personal universe. To say someone else can just write with my characters is tantamount to violating an innermost personal space - indeed, it's intruding on one of the most personal forms of control and self-expression possible. You can't just create situations and settings for things that only exist in my mind. I want others to know, so I'll put out a public work. That doesn't mean someone can put something in my world, my character's lives, without my approval. Copyright is just a legal extension of that God-hood I exert over things in my head.
It is just too bad that the current form of copyright is far from ideal, as we've seen. I'm not against fan fic or other expression of still-in-copyright works either, I tend to like them and tend to agree that they do more good than harm, just pointing out that it does matter in some cases, discretion of the author should always be allowed, and just being well-known and popular doesn't magically make that control disappear. Being dead does though, so much of this doesn't really apply to the original topic, but felt I had to make a response to this.
> Those characters do not live in your head.
The problem with that argument is that this statement is simply not true once you tell me about the characters. Now they are in my mind too, and I want control over my own thoughts, just as you do.
I understand that you're saying that the ideas remain yours whether they are in your mind or mine. Either way, accepting your characters into my mind means giving up my control over my mind and thoughts. You are colonizing my mind with your ideas and insisting on limits on my thoughts about them. This would be all right if you paid me rent for storing your creations in my brain, but that would be completely impractical.
> Copyright is just a legal extension of that God-hood I exert over things in my head.
Analogies between humans and divine attributes tend to fall apart when they have to deal with the existence of more than one human. I think this highlights the weakness of the author's moral rights. The author's creation of the character was inspired by many other human creations and real-life characters. The character will go on to be recreated by every person whose unique perspective influences its imagination. Yet the moral rights argument requires picking out one act of creation, conferring divinity upon it, and pretending there are no rival divinities that could possibly conflict with its solitary status.
The problem with that argument is that this statement is simply not true once you tell me about the characters. Now they are in my mind too, and I want control over my own thoughts, just as you do.
I understand that you're saying that the ideas remain yours whether they are in your mind or mine. Either way, accepting your characters into my mind means giving up my control over my mind and thoughts. You are colonizing my mind with your ideas and insisting on limits on my thoughts about them. This would be all right if you paid me rent for storing your creations in my brain, but that would be completely impractical.
> Copyright is just a legal extension of that God-hood I exert over things in my head.
Analogies between humans and divine attributes tend to fall apart when they have to deal with the existence of more than one human. I think this highlights the weakness of the author's moral rights. The author's creation of the character was inspired by many other human creations and real-life characters. The character will go on to be recreated by every person whose unique perspective influences its imagination. Yet the moral rights argument requires picking out one act of creation, conferring divinity upon it, and pretending there are no rival divinities that could possibly conflict with its solitary status.
The idea that a creator has an absolute moral right to control of their characters is a fairly recent one, and it certainly isn't a widely respected one -- imagine how many movies, books, etc. would have never been written if people had considered Dracula, Don Quixote, Frankenstein's Monster, Othello, etc. to be inviolable property of their authors. I don't think it's a particularly strong argument for state protection of copyright.
Wow, really?
> because they don't have any control over my creations, my thoughts, my personal universe.
Nor do you or should you have control over the creations, thoughts of the other billions of people on the planet
> I have full control in expressing who and what they are on paper
Why? It certainly isn't natural or basic right. Copyright does not cover or protect things in your head. It covers what you and others fixate into medium. It does(should) not cover ideas, only specific implementations of those ideas. Your imagined god-hood of things in your head matters not.
Creativity is not spontaneous. Despite what you think, your precious characters do not spring original from your mind. They are amalgamations of our shared culture.
You may be lauded for effort of getting them out into a cohesive and entertaining form. But that for fuck sure does not grant you the right to deny the rest of world from doing the same.
> because they don't have any control over my creations, my thoughts, my personal universe.
Nor do you or should you have control over the creations, thoughts of the other billions of people on the planet
> I have full control in expressing who and what they are on paper
Why? It certainly isn't natural or basic right. Copyright does not cover or protect things in your head. It covers what you and others fixate into medium. It does(should) not cover ideas, only specific implementations of those ideas. Your imagined god-hood of things in your head matters not.
Creativity is not spontaneous. Despite what you think, your precious characters do not spring original from your mind. They are amalgamations of our shared culture.
You may be lauded for effort of getting them out into a cohesive and entertaining form. But that for fuck sure does not grant you the right to deny the rest of world from doing the same.
I think it's all about branding and preventing copycats from riding off of someone else's coattails. It's the creator who did the hard work of making a particular character well-known, and it wouldn't be fair to let an unknown third party use this popularity for his/herself.
I'd actually be perfectly fine if Characters, such as Holmes, fell under Trademark, rather than copyright. Sure, nobody could create new works starring Holmes himself, but there have been any number of Expys over the years, and truly good plots and writing would get recognized, expy or not. It would give the Holmes estate reason to promote additional stories - Trademarks are only valid while in use. They'd have to shepherd the brand, not simply leech on it.
It would also have the added effect of making it finally safe to reduce copyright down to a sane time; Somewhere within a lifetime. The Mouse could be protected under trademark law, while his early adventures would be free for anyone to see.
Trademark is also more open to use - A trademark cannot be used to sell, rather than not used at all as with copyright. It makes it far clearer that The Onion can portray The Mouse as getting caught in a toronto-esque crack scandal, or whatever else they wish to parody, without the ugliness of american "Fair Use" laws.
It would also have the added effect of making it finally safe to reduce copyright down to a sane time; Somewhere within a lifetime. The Mouse could be protected under trademark law, while his early adventures would be free for anyone to see.
Trademark is also more open to use - A trademark cannot be used to sell, rather than not used at all as with copyright. It makes it far clearer that The Onion can portray The Mouse as getting caught in a toronto-esque crack scandal, or whatever else they wish to parody, without the ugliness of american "Fair Use" laws.
I just want a DNS system. That is, I want to know whether what I am buying is original or not. Let the market decide whether they want the original or fakes. Even the original creator shouldn't have a say on whether other people buy and sell derivatives (or even direct copies!) of the creator's work.
The only thing I care about is truth. If you make a claim X, e.g. branding your item as in a trademark, then it should be true. But I see no harm in allowing products that do not make any false claim at all.
Abstract art doesn't belong to the creator. Once it's published it has a life of its own, like a mathematical proof of a theorem. The only thing that is yours is the claim that you did it. I wish the world worked this way. We'd see more innovation in everything.
The whole patent/copyright thing, I find absurd.
For patents, imagine if the population were a million times greater than it is now, some staggering number. Would you feel comfortable with a patent system then? Probably anything you could come up with would infringe marginally upon another's protected under a temporary monopoly. People would be shut out from selling anything at all, except those who already had resources to discover new inventions.
Copyright is different because perhaps the scope of possible interesting discoveries or inventions is much broader so anybody could participate and create something unique. But even then, who is the creator of abstract art to tell others to not derive joy or economic sustenance from his/her creations? As long as the transactions were based upon truth, e.g. no lying about who the creator is, ideally with correct attribution, then it's none of anybody else's business! If the consumer wants to purchase "fake" fan-fiction, just take it in stride. It does not affect you, your creative ability, nor your economic condition.
The only thing I care about is truth. If you make a claim X, e.g. branding your item as in a trademark, then it should be true. But I see no harm in allowing products that do not make any false claim at all.
Abstract art doesn't belong to the creator. Once it's published it has a life of its own, like a mathematical proof of a theorem. The only thing that is yours is the claim that you did it. I wish the world worked this way. We'd see more innovation in everything.
The whole patent/copyright thing, I find absurd.
For patents, imagine if the population were a million times greater than it is now, some staggering number. Would you feel comfortable with a patent system then? Probably anything you could come up with would infringe marginally upon another's protected under a temporary monopoly. People would be shut out from selling anything at all, except those who already had resources to discover new inventions.
Copyright is different because perhaps the scope of possible interesting discoveries or inventions is much broader so anybody could participate and create something unique. But even then, who is the creator of abstract art to tell others to not derive joy or economic sustenance from his/her creations? As long as the transactions were based upon truth, e.g. no lying about who the creator is, ideally with correct attribution, then it's none of anybody else's business! If the consumer wants to purchase "fake" fan-fiction, just take it in stride. It does not affect you, your creative ability, nor your economic condition.
>Putting Sherlock Holmes in the public domain is probably not going to have much effect on Arthur Conan-Doyle's writing output, though, so it's probably a good thing at this point.
I'm playing devil's advocate a bit here, but couldn't the precedent have an effect on the creative output of people alive today, based on their desire for their descendants to inherit something valuable?
I'm playing devil's advocate a bit here, but couldn't the precedent have an effect on the creative output of people alive today, based on their desire for their descendants to inherit something valuable?
I know a few people who derive much of their living from creative enterprise. None of them at all would be put off doing what they do because their efforts wouldn't provide for generations past their own. If you write, draw, paint or create music, you do so because of some blend of being good at it and having a burning need to create.
Taken to its logical conclusion, the "burning need to create" argument implies that creative people don't respond to economic incentives at all, and that copyright doesn't help increase creative production at all. I've seen people make that argument. But that's just not true; at the very least, making money from your creative work can mean you don't have to work a regular job, and can focus on being creative.
And sometimes people work a job not to support themselves, but to create inheritance money for future generations.
And sometimes people work a job not to support themselves, but to create inheritance money for future generations.
Not arguing against rights for creators, but against rights that go beyond their lifetimes. I think people work to create an immediate future for their children, but I've never met anyone who's spoken of creating an inheritance for a time beyond that.
Why should their descendants get a damn thing, they didn't do the work.
Copyrights should end at death, or a fixed term in the case of a corporation.
Copyrights should end at death, or a fixed term in the case of a corporation.
Yes, this is the rationale the Supreme Court used to justify retroactive extensions of copyright.
From an economic and psychological perspective though, it gets increasingly silly as copyright gets longer and longer. We know that people discount future income, and when you get to time frames of 70-90 years, the present value of any additional income is near-zero.
From an economic and psychological perspective though, it gets increasingly silly as copyright gets longer and longer. We know that people discount future income, and when you get to time frames of 70-90 years, the present value of any additional income is near-zero.
> Yes, this is the rationale the Supreme Court used to justify retroactive extensions of copyright.
No, it isn't. Not only is the stated rationale not addressed in the key case on retroactive copyright extension -- Eldred v. Ashcroft, 537 U.S. 186 (2003) -- that decision doesn't actually justify retroactive extensions of copyright based on any kind of incentive structure. Its only discussion of incentive was in regard to setting the particular term (not its retroactive effect.)
No, it isn't. Not only is the stated rationale not addressed in the key case on retroactive copyright extension -- Eldred v. Ashcroft, 537 U.S. 186 (2003) -- that decision doesn't actually justify retroactive extensions of copyright based on any kind of incentive structure. Its only discussion of incentive was in regard to setting the particular term (not its retroactive effect.)
Yes and no. The majority opinion in Eldred v. Ashcroft clearly discusses retroactive effect:
"Given the consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the “this” offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Congress could rationally seek to “promote … Progress” by including in every copyright statute an express guarantee that authors would receive the benefit of any later legislative extension of the copyright term. Nothing in the Copyright Clause bars Congress from creating the same incentive by adopting the same position as a matter of unbroken practice."[1]
Stated rational by above post isn't quite the same as the point made in Eldred, but it's based on the same idea -- i.e. parity between terms for newly created works and previously created works.
[1] http://www.law.cornell.edu/supct/html/01-618.ZO.html
"Given the consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the “this” offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Congress could rationally seek to “promote … Progress” by including in every copyright statute an express guarantee that authors would receive the benefit of any later legislative extension of the copyright term. Nothing in the Copyright Clause bars Congress from creating the same incentive by adopting the same position as a matter of unbroken practice."[1]
Stated rational by above post isn't quite the same as the point made in Eldred, but it's based on the same idea -- i.e. parity between terms for newly created works and previously created works.
[1] http://www.law.cornell.edu/supct/html/01-618.ZO.html
> Yes and no. The majority opinion in Eldred v. Ashcroft clearly discusses retroactive effect
Sure, it discusses it because that was a challenged aspect. What it doesn't do is say that the retroactive effect is justified because it creates a motivating incentive, it says that the particularly challenged retroactive extension isn't a violation of a posited quid pro quo requirement because inclusion in future extensions is justifiably viewed as part of the existing bargain based on the unbroken past history of including works created before extension in extensions.
Sure, it discusses it because that was a challenged aspect. What it doesn't do is say that the retroactive effect is justified because it creates a motivating incentive, it says that the particularly challenged retroactive extension isn't a violation of a posited quid pro quo requirement because inclusion in future extensions is justifiably viewed as part of the existing bargain based on the unbroken past history of including works created before extension in extensions.
Do you know anyone who responds to incentives like that? No? Me neither...
You've even got a real example to draw on; U. S. Grant wrote his memoirs to provide for his wife and children.
> I'm playing devil's advocate a bit here, but couldn't the precedent have an effect on the creative output of people alive today, based on their desire for their descendants to inherit something valuable?
Fair enough, but Conan-Doyle's children are dead too. How many generations should get the benefit of something before the public at large does?
Fair enough, but Conan-Doyle's children are dead too. How many generations should get the benefit of something before the public at large does?
It shouldn't be based on lifetimes or the number of generations, just a flat number of years.
If I buy an annuity that pays out over 50 years, it should pay out over 50 years, whether or not I die tomorrow or I live another hundred.
If I buy an annuity that pays out over 50 years, it should pay out over 50 years, whether or not I die tomorrow or I live another hundred.
Not to any non-trivial extent. Given that nearly always the vast majority of royalties aree realized within a few yers of publicayion, anf given that with any reasonable discounting getting a dollar 100 years from now is worth less than getting a penny today, even without taking into account that you will be dead, there really isn't an incentive argument for long copyrights. The economic incentive effect for having a longer copyright term than about 20 years is approximately nothing.
> But now, following a legal ruling, the deerstalker-wearing detective is headed to another destination: the public domain
He wore what might have been a deerstalker in parts of two stories, and in both he was in a setting where a deerstalker would have been a normal hat to wear. Most of the time in most of the stories he was not in such a setting, and would have been wearing something else. It was important in his line of work to blend in, and you don't blend in by committing a fashion faux pas.
He wore what might have been a deerstalker in parts of two stories, and in both he was in a setting where a deerstalker would have been a normal hat to wear. Most of the time in most of the stories he was not in such a setting, and would have been wearing something else. It was important in his line of work to blend in, and you don't blend in by committing a fashion faux pas.
In the Jeremy Brett TV series, an unusually faithful adaptation, Holmes is most commonly wearing a top hat.
Looking forward to seeing Mickey Mouse in the public domain in a few years?
I'm guessing we'll be seeing another one of these before then: http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
Is there a sensible way to extend copyright on "active" IP that is still being used in new content, while allowing copyright to expire on "dormant" IP that has been left untouched for years?
I don't think it's unreasonable for Disney to still hold copyright on Mickey Mouse (that might be the nostalgia talking), but there are plenty of creations from much more recent times that have long overstayed their welcome in the copyright protected realm.
I don't think it's unreasonable for Disney to still hold copyright on Mickey Mouse (that might be the nostalgia talking), but there are plenty of creations from much more recent times that have long overstayed their welcome in the copyright protected realm.
Disney holds a trademark on Mickey Mouse in perpetuity, so your nostalgia is covered.
I'd be happy with a copyright system where the fee is $5 for the first year of government-protected monopoly, $10, for the second, $20 for the third, and on and on at the rate of $5*2^n for as long as they like. Note that at the fifteen-year mark, the renewal fee for another year of copyright enforcement would be over $30 million, which seems appropriate.
edit: math
I'd be happy with a copyright system where the fee is $5 for the first year of government-protected monopoly, $10, for the second, $20 for the third, and on and on at the rate of $5*2^n for as long as they like. Note that at the fifteen-year mark, the renewal fee for another year of copyright enforcement would be over $30 million, which seems appropriate.
edit: math
This. Whenever people talk about Mickey Mouse entering the public domain like it's the end of the world, I point to the Fleischer Studio Superman Cartoons that were made in the 1940s. Those cartoons are in the public domain and people may copy or sell them as much as they want.
However, since DC Comics still holds a trademark on Superman, you can't use Superman for anything else. In fact, when I bought a VHS tape of the Superman cartoons back in the 90s, the manufacturer was careful to use an actual Public Domain image of Superman on the box. If they created a new image, the Superman trademark would have applied.
However, since DC Comics still holds a trademark on Superman, you can't use Superman for anything else. In fact, when I bought a VHS tape of the Superman cartoons back in the 90s, the manufacturer was careful to use an actual Public Domain image of Superman on the box. If they created a new image, the Superman trademark would have applied.
>If they created a new image, the Superman trademark would have applied. //
Trademarks indicate origins of goods/services. Unless they used the trademark in a way as to convince people that the video originated with DC Comics then they're supposedly fine.
It's a notional consideration but after the lapse of a copyright the "man in the street" should be expected to be aware that the copyright has lapsed and so to be able to buy previously restricted works from any company. Images adapted from a PD work then should be allowed, provided there is no effort made to use that image in an otherwise infringing way.
Of course you can be sued for anything and DC Comics would most likely enact a very expensive lawsuit - in a sane legal system however they should probably lose, especially if they were attempting to use their trademark to prevent the release of material which would have been copyright infringing before the lapse of the copyright term.
If the estate of a creator of a work can use TM law to prevent PD works from being adapated and used then that cancels the deal made in copyright between the state and the creator whereby the works have a presumption of fully entering the public domain.
[Does anyone know of any caselaw covering situations where a major element of once copyrighted - but now PD - works is also a valid trademark?]
Trademarks indicate origins of goods/services. Unless they used the trademark in a way as to convince people that the video originated with DC Comics then they're supposedly fine.
It's a notional consideration but after the lapse of a copyright the "man in the street" should be expected to be aware that the copyright has lapsed and so to be able to buy previously restricted works from any company. Images adapted from a PD work then should be allowed, provided there is no effort made to use that image in an otherwise infringing way.
Of course you can be sued for anything and DC Comics would most likely enact a very expensive lawsuit - in a sane legal system however they should probably lose, especially if they were attempting to use their trademark to prevent the release of material which would have been copyright infringing before the lapse of the copyright term.
If the estate of a creator of a work can use TM law to prevent PD works from being adapated and used then that cancels the deal made in copyright between the state and the creator whereby the works have a presumption of fully entering the public domain.
[Does anyone know of any caselaw covering situations where a major element of once copyrighted - but now PD - works is also a valid trademark?]
Because it's not about Mickey.
It's about suppressing the ideas that copyright is a granted right, a temporary right, that everything starts out free (as in freedom) and is only temporarily monopolized for the betterment of society, that the public domain exists.
And to reinforce that idea that culture, art, entertainment are products owned by corporations which must be paid for.
It's about suppressing the ideas that copyright is a granted right, a temporary right, that everything starts out free (as in freedom) and is only temporarily monopolized for the betterment of society, that the public domain exists.
And to reinforce that idea that culture, art, entertainment are products owned by corporations which must be paid for.
> the ideas that copyright is a granted right
So is ownership of land, when you come down to it. We like to pretend, in most countries, that land tenure is absolute and that it's the foundation of society, but it isn't. Only a sovereign has absolute land tenure, and the only sovereigns in the modern Western world are corporate entities called governments. (A constitutional monarchy is pleased to pretend that certain individuals are sovereign, but in point of practical fact a crowned head can be deposed by a functional constitutional government.) Everyone else holds tenure contingent on their sovereign not exercising eminent domain to take the land from them and use it to its own ends. Sure, you'll likely get paid, but you don't have the option of turning down the offer and keeping the land.
"Stable ownership is the gift of social law, and is given late in the progress of society." -- Thomas Jefferson
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12....
So is ownership of land, when you come down to it. We like to pretend, in most countries, that land tenure is absolute and that it's the foundation of society, but it isn't. Only a sovereign has absolute land tenure, and the only sovereigns in the modern Western world are corporate entities called governments. (A constitutional monarchy is pleased to pretend that certain individuals are sovereign, but in point of practical fact a crowned head can be deposed by a functional constitutional government.) Everyone else holds tenure contingent on their sovereign not exercising eminent domain to take the land from them and use it to its own ends. Sure, you'll likely get paid, but you don't have the option of turning down the offer and keeping the land.
"Stable ownership is the gift of social law, and is given late in the progress of society." -- Thomas Jefferson
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12....
> over $30 million, which seems appropriate.
Appropriate to who? Maybe Disney, but not for the vast majority of people who are creating works every day. Just yesterday, we had a guy doing a Song a Day make the front page: https://news.ycombinator.com/item?id=6966581. He started it in 2009. Doing very rough math, that puts his burden as:
Appropriate to who? Maybe Disney, but not for the vast majority of people who are creating works every day. Just yesterday, we had a guy doing a Song a Day make the front page: https://news.ycombinator.com/item?id=6966581. He started it in 2009. Doing very rough math, that puts his burden as:
2009: 365 x $5 * 2^5 = $58,400
2010: 365 x $5 * 2^4 = $29,200
2011: 365 x $5 * 2^3 = $14,600
2012: 365 x $5 * 2^2 = $7,300
2013: 365 x $5 * 2^1 = $3,650
TOTAL: $113,150
Did you mean 5$, 25$, 125$,... ?
One way is to go back to the old US system, whereby you had to actively renew copyrights, and it costs enough that only active authors or publishers will do so. In reality, it was pretty messy, and there's a lot of arguing about whether a magazine copyright that wasn't renewed causes a story published in multiple places to have a lapsed copyright, etc etc.
It was also extremely painful to search for renewals until all of the renewal records were digitized by the Project Gutenberg Distributed Proofreaders. Now it's just moderately painful, because you have to be alert for variations in titles and author names.
It was also extremely painful to search for renewals until all of the renewal records were digitized by the Project Gutenberg Distributed Proofreaders. Now it's just moderately painful, because you have to be alert for variations in titles and author names.
> Is there a sensible way to extend copyright on "active" IP that is still being used in new content, while allowing copyright to expire on "dormant" IP that has been left untouched for years?
Periodic -- say, every 7 years -- renewals with exponentially increasing costs to renew.
Periodic -- say, every 7 years -- renewals with exponentially increasing costs to renew.
Why bother with exponentially increasing costs? Even a token fee would ensure that copyright expires on abandoned/orphaned works.
> Why bother with exponentially increasing costs? Even a token fee would ensure that copyright expires on abandoned/orphaned works.
A token fee would do that for abandoned works, but it wouldn't do it for works which weren't being actively used but which the owner also didn't want others to use -- an escalating fee would be better than a token fee to discourage such buried works.
A token fee would do that for abandoned works, but it wouldn't do it for works which weren't being actively used but which the owner also didn't want others to use -- an escalating fee would be better than a token fee to discourage such buried works.
You need increasing fees to prevent big business from automatically renewing all the time. Make them think if they want to renew it all. Otherwise they'll decide the just renew it all.
The problem is deciding what unit to which you need to apply the renewal costs. A photographer may make hundreds of very creative works a year, while an author may make only one.
I've done quite a bit of work with public domain text. While more flexible copyright terms do have some advantages, it becomes a nightmare to work out whether or not a given text is still in copyright, especially for the large majority of work that falls into obscurity.
Copyright covers an enormous range of output. Keeping a central ledger that tracked the copyright status of hundreds of millions of items would be a massive undertaking.
Copyright covers an enormous range of output. Keeping a central ledger that tracked the copyright status of hundreds of millions of items would be a massive undertaking.
I think all copyright is treated legally the same, regardless of how much it's used now. That's one of my big problems with current copyright systems.
Considering how powerful Disney is, I am not hopeful that it will happen.
Ironic considering Disney is famous for making films based on other people's stories.
Did you know that Disney is asserting their trademark on Snow White? They believe that they're the only studio allowed to make a film of the Snow White story, even though the Snow White fairy tale is in the public domain?
They are not successful though, are they? There is a low-budget snow-white based TV series that run a year ago (Once Upon A Time).
Also, it is ridiculous considering that character is way older than Disney itself and provably comes from outside US jurisdiction.
Also, it is ridiculous considering that character is way older than Disney itself and provably comes from outside US jurisdiction.
> They are not successful though, are they? There is a low-budget snow-white based TV series that run a year ago (Once Upon A Time)
Once Upon a Time is a (still active) series produced by ABC Studios, which is a wholly-owned subsidiary of the Disney-ABC Television Group, which is in turn a wholly-owned subsidiary of Disney. The show incorporates dozens of Disney franchises (or, rather, the Disney versions of classic stories) entirely because of its ownership.
Once Upon a Time is a (still active) series produced by ABC Studios, which is a wholly-owned subsidiary of the Disney-ABC Television Group, which is in turn a wholly-owned subsidiary of Disney. The show incorporates dozens of Disney franchises (or, rather, the Disney versions of classic stories) entirely because of its ownership.
If it's the ABC "Once Upon A Time", that's Disney owned.
I'm looking forward to them asserting copyright over the Jungle Book characters. Sure, Disnet made their movie the year after Kipling's copyright expired, but it's the Disney movie versions that people know and love, not the versions from some old book that nobody reads any more.
That reminds me, I should download Jungle Book from librivox, I need more books to listen to.
That reminds me, I should download Jungle Book from librivox, I need more books to listen to.
I've thought about this, and I kinda wonder if there's more to it than the bad ol' media cartels flexing their muscle. Doesn't the government have an interest in maximizing its revenues? If so, is revenue maximized by limiting copyright, or by expanding it?
Overall government revenue worldwide is maximised by balanced copyright - that promotes the more efficient creation of taxable creative works, and use of copyrighted works in business, by allowing reuse of public domain works, but still incentivises forward progress to further enlarge the pie of which the government gets a slice. I suspect that at the moment, balance means shortening copyright terms drastically.
Overall campaign finance revenues, however, are maximised by supporting copyright expansion, because copyright holders who already own substantial collections of copyrighted works are willing to back politicians who support their interests, but there is no equally big pot of money for politicians in favour of balancing copyright.
It is one of those cases where what is essentially legally sanctioned corruption allows for regulatory capture of the political process against the interests of the government and public.
Overall campaign finance revenues, however, are maximised by supporting copyright expansion, because copyright holders who already own substantial collections of copyrighted works are willing to back politicians who support their interests, but there is no equally big pot of money for politicians in favour of balancing copyright.
It is one of those cases where what is essentially legally sanctioned corruption allows for regulatory capture of the political process against the interests of the government and public.
I'm surprised Disney didn't throw all their weight behind the Doyle estate here. Under this precedent, all attributes of Mickey Mouse created in 1928 (his first appearance) appear to become public domain in 4 years time, giving you, me, and my uncle Bob the right to publish Mickey Mouse stories.
Maybe a British judge should just declare it?
So the character "Sherlock Holmes" is public domain but (some) of the novels are still copyrighted, right ?
What is that good for....authors writing new "Sherlock Holmes" novels ? What is the point in having a "character" public domain ?
What is that good for....authors writing new "Sherlock Holmes" novels ? What is the point in having a "character" public domain ?
See for example, the Star Trek TNG episode that used Sherlock Holmes. At the time, the studio assumed Sherlock Holmes was in the public domain, but were contacted by the estate and told they would have to license the character if they wanted to use him again. This almost prevented a follow up episode, and probably did prevent other follow ups to what was considered a good story line.
http://en.memory-alpha.org/wiki/Elementary,_Dear_Data
http://en.memory-alpha.org/wiki/Elementary,_Dear_Data
I'm assuming one can now make movies/television/video games with those characters without paying any sort of royalty.
[serious] Has the BBC had to pay royalties for making/showing their Sherlock series? In that case, to whom? The person who created these fictional characters died over 70 years ago.
Both TV shows and the movie studio entered into a licensing agreement with the Conan Doyle estate, it's all in the article.
I believe the Copyrights for Sherlock Holmes expired in year 2000 and in public domain since then. So I don't think BBC needed to license it from the estate, at least in the UK.
[deleted]
For making any art containing that character. Seems like a big deal. I thought he already was public domain and that was why there were so many derivative works (movies, tv, video games etc) but I guess they all had to license the character from the Doyle estate (for US works at least).
There is a US TV show called "Elementary" which uses the characters Sherlock Holmes and Watson, set in NYC in the present day.
The cynic in me wants to rush out and find a way/source to grab a copy, before they find a way to lock it up, again. (The other benefit of Mickey Mouse legislation: Yanking materials back out of the public domain.)
It's really interesting how US justice is always so keen to rule for public domain for non US ip while being so defensive for US ip products (eg. Disney) - I guess it's one more face of American exceptionalism.
We love you so much guys.
We love you so much guys.
It seems like you're confusing a judge's interpretation of a law with extensive lobbying to get a law changed.
http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
Time to go publish 50 $.99 android / ios apps.
I am glad to read this. I have been following the Free Sherlock website for some time. It can be found here:
http://free-sherlock.com/
http://free-sherlock.com/
Can somebody explain why american law is relevant here? Please excuse my ignorance, but shouldn't British law supercede American law as Holmes was first published in Britain?
> Can somebody explain why american law is relevant here?
Because actions within the jurisdiction of the United States are governed by the U.S. law?
> Please excuse my ignorance, but shouldn't British law supercede American law as Holmes was first published in Britain?
No, British law doesn't govern what people can do in the United States. I thought we settled that a couple hundred years ago?
Because actions within the jurisdiction of the United States are governed by the U.S. law?
> Please excuse my ignorance, but shouldn't British law supercede American law as Holmes was first published in Britain?
No, British law doesn't govern what people can do in the United States. I thought we settled that a couple hundred years ago?
Because it's already public domain in Britain, and has been since 2000. Since copyright is per-country, that didn't matter for an American case.
Past that, America is a big enough chunk of the English-speaking audience that its American status is a factor for major commercial projects.
Past that, America is a big enough chunk of the English-speaking audience that its American status is a factor for major commercial projects.
Simple, because this covers America. If Britain wants to enforce its copyrights here, well you'll have to either use force or fire up a treaty. Until then American copyright law applies to something copyrighted in America. Doesn't really enter in that it was published in Britain first.
Can someone point me to a law review article that covers how characters can be copyrighted? I understand that the text of the book can be copyrighted, but characters? That seems like a stretch.
How does fan fiction exist at all? Authors have the legal right to go after fans, but choose not to? In this legal climate, I highly doubt that.
How does fan fiction exist at all? Authors have the legal right to go after fans, but choose not to? In this legal climate, I highly doubt that.
Copyright includes rights to the work itself as well as rights to creating derivative works, such as sequels, movie adaptations, etc. This does effectively mean anything using the same characters or settings, although the characters themselves are not technically copyrighted.
This is a decent review of the issues involved: http://io9.com/5933976/are-fan-fiction-and-fan-art-legal
This is a decent review of the issues involved: http://io9.com/5933976/are-fan-fiction-and-fan-art-legal
> Authors have the legal right to go after fans, but choose not to?
This is actually pretty much exactly how it works. Fan fiction is generally a "derivative work" but most creators and publishers realize that there is no real incentive to go after most of it, and a serious disincentive in the form of bad PR among the exact groups of people who are already buying their stuff.
This is actually pretty much exactly how it works. Fan fiction is generally a "derivative work" but most creators and publishers realize that there is no real incentive to go after most of it, and a serious disincentive in the form of bad PR among the exact groups of people who are already buying their stuff.
The entire Holmes canon has been in the public domain in its original country of publication for some time.
Sir Arthur Conan Doyle died in 1930 (more than 70 years ago) and I don't see any evidence that he wrote anything about Mr. Holmes after 1963 (50 years ago)
Sir Arthur Conan Doyle died in 1930 (more than 70 years ago) and I don't see any evidence that he wrote anything about Mr. Holmes after 1963 (50 years ago)
I haven't read the book myself but heard they censored the use of drugs (I understood they replaced cocaine with tabacco).
http://en.wikipedia.org/wiki/Sherlock_Holmes#Use_of_drugs
It makes me wonder if uncensored copies can now circulate freely.
http://en.wikipedia.org/wiki/Sherlock_Holmes#Use_of_drugs
It makes me wonder if uncensored copies can now circulate freely.
No Shit Sherlock, it was written 126 years ago.
[deleted](1)
Good.
Pardon my ignorance, but shouldn't it be a "duh" that the copyright already expired?
While I agree this should be a "duh." But the question is, the copyright for what? Some of the Holmes stories are still under copyright, and that is what they are arguing... Fortunately they are wrong.
Not about the expired copyrights. But rather how any story using those same characters are derivative works of the later still copyrighted stores (and thus protected by copyright) even if they use no elements from those later copyrighted stories.
For example, they would argue that in every story, Watson had once played rugby, though this fact wasn't published until a later story. Thus this aspect of Watson's character is still protected. The real meat of their argument is that the pieces that were "discovered" after 1923 are so central to Watson that there's no un-copyright-ed Watson left if those pieces are still protected. (But the judge rejected that argument.)
This seems sensible if you imagine Sir Doyle "discovering", not "inventing", Watson.