Sherlock Holmes & The Case For Public Domain
As an attorney with clients concerned about protecting creative works, I am a big fan of copyright law. I especially appreciate the original intent of the law; to encourage the addition of new creative works to our society’s culture, including derivative works, by granting creators a limited window of exclusive rights to the work’s use.
You might even say I am pretty enthusiastic about making sure clients protect themselves and defending those rights for clients.
Over the last 75 years or so, however, there have been many changes to how the legislature and some courts approach copyright law. This has gone on to the point where many people seem to believe that the sole purpose of copyright law is to protect the creator’s exclusive rights, and the intended benefits to society as a whole are forgotten or misrepresented as being the fractional economic bump from a handful of financially successful works.
It’s that change in the public understanding that made seeing Judge Posner‘s opinion in Leslie S. Klinger v. Conan Doyle Estate, Ltd. this past June so refreshing, and as today the Supreme Court officially refused to hear the appeal by the Doyle estate I thought I’d talk about why.
The case revolved around an author named Leslie Klinger (well known by some as being responsible for annotated works like The New Annotated Sherlock Holmes, which sits handsomely on my shelf, and The Annotated Sandman) who was co-editor on an anthology of new Holmes fiction in 2011. At that time he paid the Doyle estate a licensing fee, but when it came time for a sequel anthology Klinger insisted that it was not necessary and eventually asked a federal court to issue a declaratory judgment that would support his position.
The Conan Doyle Estate took the position that, while obviously many of the Sherlock Holmes works were old enough to fall into public domain, the works still protected by copyright (ten published post-1923) were so informative to the character that even the public domain elements should be off-limits.
Judge Posner wrote:
More important, extending copyright protection is a two-edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain. For the longer the copyright term is, the less public-domain material there will be and so the greater will be the cost of authorship, because authors will have to obtain li-censes from copyright holders for more material—as illus-trated by the estate’s demand in this case for a license fee from Pegasus.
Most copyrighted works include some, and often a great deal of, public domain material—words, phrases, data, en-tire sentences, quoted material, and so forth. The smaller the public domain, the more work is involved in the creation of a new work. The defendant’s proposed rule would also en-courage authors to continue to write stories involving old characters in an effort to prolong copyright protection, ra-ther than encouraging them to create stories with entirely new characters. The effect would be to discourage creativity.
I have to agree. There is something to be said for striving for a sort of pure creativity, and working within limits can certainly lead to unexpected results, but the truth of the matter is that stories and images and ideas that become part of our cultural language don’t just appear from nowhere. They’re drawn from everything that’s come before, and the well of commercial material from the past century (that doesn’t have to be carefully stepped around at least) is a bit dry at the moment.
A strong copyright law makes sure that creative individuals or organizations have an opportunity to profit from their labors without worrying over competing with third party reproductions, but a strong public domain makes sure that the pool of inspirations and materials our artists can freely build with is constantly being refreshed. It’s nice to see that get some recognition.