Sherlock Holmes has entered the public domain – what does it mean?
Finally, Sherlock Holmes has cracked the public domain in all relevant jurisdictions, and we’re investigating what that means for him.
A very famous character finally made his step into the full public domain in the United States earlier this year: Mr. Sherlock Holmes, the famous investigator.
Sir Arthur Conan Doyle wrote countless adventures with this marvellous brain and his dear friend Doctor Watson in the centre of creative gravity.
His last story “The Case-Book of Sherlock Holmes” was published in 1927, three years before the famous author died at the age of 71.
So according to U.S. copyright law, this last story entered public domain on 1st January 2023.
What does the public domain mean?
Each intellectual property right has its lifespan, and certain rights can be renewed at the end of their initial term of protection.
The lifespan of copyright protection is very distended. It lasts for the life of the author plus an additional number of years depending on the country. In the EU, protection lasts for 70 years after death;
- In the UK, for a long time it was 75 years, but the 1998 Copyright Term Extension Act added another 20 years on top making it 95.
- In the U.S., the protection expires either 70 years after the author's death or 95 years after publication of the work.
Thereafter, the work enters into “public domain”, to use the technical term.
This means that after the respective date, everyone may use the formerly protected work without the need to ask for the heirs’ permission and without becoming liable to pay royalties.
Who gets copyright protection?
It is also noteworthy to say that not every character ever mentioned in a book enjoys copyright protection.
Neither does a mere idea, a plot or mere anecdote necessarily qualify as a protectable work in the sense of copyright.
Typically, a literary work is required to meet the threshold of originality in order to be eligible for copyright protection.
Defining the threshold of originality can be both challenging and contentious, and ultimately comes down to legislators and jurisprudence in each region.
In the UK, for instance, the so-called test of “labour, skill and judgement” is commonly used in this context. This is one way of measuring whether or not the author or creator developed an original idea.
Occasionally, individual characters within a literary work are also able to assume copyright protection.
Courts tend to approve such protection in situations where the author has attributed highly distinctive and characteristic features to the fictional personality he or she created.
This makes it more possible to distinguish between “original” characters and characters which draw on existing images or tropes.
No one can deny Sherlock Holmes being such a distinctive character.
Thus, even with regard to adventures set in the modern age that cannot be traced directly back to stories written by Sir Arthur Conan Doyle, the author’s heirs could claim royalties up until the end of last year.
Any film or movie production had to set aside some budget for such royalties to be duly paid to the right holders.
That has come to an end now.
Taking into account how successful the many adaptations and variations of the original Sherlock Homes
adventures have been – a famous example would be the BBC series “Sherlock” starring Benedict Cumberbatch and Martin Freeman – one might expect Mr Homes to appear on the public stage and screen fairly frequently in the years to come.
However, those working on new scripts should watch out to stay clear from the plots that have formed the basis of the successful Sherlock Homes movies and TV series of the last decades.
It’s impossible to rule out that the screenwriters themselves can claim copyright protection – not for the fictional character of Sherlock Holmes himself who first saw the light of day in 1887, but for the adventurous stories they have written with the famous investigator being the main character.
Whilst, we all stand – like dwarfs – on the shoulders of giants, copyright also recognises those who skilfully adapt already existing literature thereby creating new works eligible for copyright protection.
Consequently, we can look forward to new adventures of Sherlock Holmes and Doctor Watson that are more than pure repetitions of what has been on screen already.
Notably in Hollywood, producers, directors and screenwriters eagerly awaited the year 2023. Presumably, they had already begun working on a plot.
If you have questions about what intellectual property rights may apply to your work or idea, the first step is to get in touch with an IP professional, for example, a Chartered Trade Mark Attorney, who can guide you on what to do next.
This blog was written by Nils Rauer, leader of the technology, media and telecommunications team at Pinsent Masons in Frankfurt.