I guess Joanie no longer loved ChaChi by that point?
Yeah this seems to be why Sherlock Holmes still requires a license, because of the trademarks, which last longer than copyrights.
I wonder if authors routinely trademark a million things each time they publish a novel, or if few bother? And what happens if they don’t bother at first, and someone used their character in another book, and then later their own book gets popular and they decide to trademark. What happens to the other book?
It doesn’t require any permission from the Arthur Conan Doyle estate to write a story in any media that uses Sherlock Holmes. The estate authorizes some stories, but that’s their own choice. The books are mostly long out of copyright (although apparently some of them are still in copyright in some countries) and there is no trademark on the character. If anyone can find anything online with a complete summary of the intellectual property rights to Sherlock Holmes, I would greatly appreciate it.
Interesting responses so far… thanks everyone!
Am I to understand that it is theoretically possible to write a book about an actual character in a copyrighted book if the author has carelessly forgotten to trademark the character? I hadn’t realised that. I assume that it’s not practically possible, otherwise someone would have no doubt done it by now, though…
Authors never trademark their characters. I know it’s a mistake to use never because somebody always finds an exception, but let’s start with never.
Characters get trademarked after a visual representation of them enters the public mind. Today this happens mostly after a film version of the character appears. With Holmes the deerstalker hat and curved pipe came out of William Gillette’s play.
Authors don’t trademark characters because copyright is normally enough protection. There weren’t many cases of using other peoples’ characters in the past because publishers simply wouldn’t print them. Today the niceties of the old-time world have disappeared. However, as Salinger’s suit shows, it may be difficult for anyone to use a famous character in a non-parodic way without appropriating enough of the book itself to fail a fair use exemption. I don’t think there is much case law on the subject. It used to be something decent people didn’t do, doncha know.
I’ve seen differing claims as to whether Holmes is trademarked but I don’t see it on the trademark database. There is a word mark for goods and services as well as the caricatured silhouette that would be instantly recognizable that is live and registered by The Sherlock Holmes Memorabilia Company Limited. That doesn’t seem to apply to books.
The real problem with Holmes is that the last couple of stories were published after Jan. 1, 1923, keeping them under current copyright. So while you can reprint earlier stories with impunity, the character itself may fall under copyright. IANAL.
I don’t know what it means or how much of it is true, but the Holmes website says:
This confuses me a bit. Either the stories & characters are in the public domain, or they aren’t, surely?
I mean, the way that reads, then no-one can create “new” Sherlock Holmes stories without permission from Conan Doyle’s estate, which is not my understanding of the legal situation- I was under the impression that after the original copyright had expired, all bets were off, and if I wanted to write Sherlock Holmes And The Case Of The Missing Coffee Mug, starring Holmes and Watson et al, then I was free to do so.
It confuses me too, but I guess there a couple of issues involved -
Hmmm. I have to say I find this state of affairs rather concerning. Most of the Sherlock Holmes stories (to use a convenient example) were written in the 19th Century. I really don’t see how it’s appropriate for the Estate of Arthur Conan Doyle to be trying to stop people from writing new stories a century later… sort of makes a mockery of the whole concept of “Public Domain” and “Copyright Expiry”, IMHO.
What about H. Rider Haggard? If I try and write a new Alan Quatermain adventure (last story published 1927), am I likely to get the Estate of H. Rider Haggard insisting they still own the trademark to the character nearly a century after the last story was published?
The whole Sherlock Holmes copyright thing is pretty confusing and very messy. A friend has suggested that I dig into it and write up an article about it, but whenever I try getting a grasp of the situation, my brain starts to hurt.
Hopefully the OP does not mind me continuing the hijack. Most of the SH stories are out of copyright worldwide. In the USA, this excludes ten of the twelve stories in The Case-Book of Sherlock Holmes which were published after January 1, 1923 and later had their copyright renewed. I forget the specifics of the UK and EU (and elsewhere?) but I think these stories are still in copyright there as well.
The website that jackdavinci quoted from is the self-proclaimed “Sir Arthur Conan Doyle Literary Estate.” Andrea Plunkett, through a means described on her website has claimed ownership of the copyright or trademark of all of the Holmes characters developed by Arthur Conan Doyle. She may also have claimed Challanger and *The Lost World[/]. The heirs of ACD have won every lawsuit they have brought against her and have even won the right to recoup legal costs, but last January Plunkett received a judgment that says she does not have to pay because she is too poor.
The various losses in court has not stopped her or her agent (Jonathan Cowles, Ltd.) from still trying to squeeze money from groups who wish to use the names of Holmes and his literary companions. (I think this is what may have stropped further episodes of Star Trek: The Next Generation dealing with Holmes, Moriarty and the holodeck.)
By and large, the Conan Doyle Estate (the proper one) didn’t mind the various pastiches, possibly because they realized they couldn’t stop them. The Estate was primarily ACD’s daughter, Dame Jean, and two daughters-in-law. They have all died and the Estate and remaining copyrights are controlled by a grand-nephew and similar relations of ACD’s. (None of his children had kids and so there are no direct descendants of ACD.)
Many pastiche writers do get permission from the Conan Doyle estate in order to lend an air of legitimacy to their work, but from what I have understood, and as has been clarified by others in this thread (and by the courts with Ms. Plunkett), it is not necessary.
In the USA there is the whole issue of derivative works which are restricted by copyright rules, but I don’t know how exactly this plays into the OP or subsequent questions. (Martini, you may want to get clarification on derivative works of copyrighted material in Australia before you start your Haggard series.)
Sherlock Holmes does not require a license. There’s a money grabbing moonbat (mentioned in previous post) going around trying to claim that using the character requires a license, but it doesn’t… and if it did there’s no legal basis for thinking she would own it anyway. Occasionally she gets people to pay her who either don’t know any better or decide it’s easier to pay her something than deal with her complaining, but that’s it.
This happens too. And often the people running around aren’t even the estates, just some company trying to claim some connection to them in some way. There are (or were) companies running around with false copyright claims on H.P. Lovecraft’s work and also Robert E. Howard’s.
You’re confusing copyright and trademark again. They are two separate concepts, applied differently and subject to different laws and restrictions. Trademarks live forever, or at least as long as the product is actively manufactured. That’s why Mickey Mouse cannot be touched and won’t be even when the first cartoons slip into the public domain when their copyright expires.
Copyright does expire. Half of the Holmes stories were written in the 19th century, true. That means they are in the public domain. You can reprint them along with the original drawings that accompanied them any time and any place you want. You can do more. You can rewrite every other live or put swear words into every line of dialog. You can do that for every story written in the 20th century as well, up through Dec. 31 1922. You cannot do it for the stories written after Jan. 1, 1923 because they remain under copyright in the U.S. All the stories are in the public domain in the U.K. and in Canada. Here’s some info on copyright and the battles in the Doyle family. I’d suggest reading some of the links given there to older posts. UK copyright law is different from U.S. copyright law, but some of our issues are discussed.
While you can reprint a work that it is the public domain, the issue of derivative works gets a little more complicated. Copyright law normally prohibits derivative works, meaning new works that use the characters or settings from works still under copyright. Parody is an exception. Pastiche, a serious attempt to reuse the characters, is not. Does the fact that some Holmes stories are still under copyright prohibit derivative works? Apparently not, given the number of them. According to the site I linked there is no case law on this.
As for your not thinking it appropriate, let’s try a different tack. What would you say, Martini Enfield, if hundreds of companies were to spring up selling cheap, flimsy imitations as authentic Martini-Enfield rifles, rifles that wouldn’t sell at all if they were named Cosmopolitan-Outfield rifles? What if your family still owned the rights to the original Martini company. What would your position be then?
While anything published (not just written – this is important) before 1923 is automatically in the public domain, many stories after that point are also pubic domain. For a long stretch of time works had to be explicitly and properly labeled as under copyright to be covered (screwing this up led to, for example, the film ‘‘Night of the Living Dead’’ to be public domain) and those copyrights had to be renewed at the right time by the legal owners or else the protection expired. Plenty of things from 1923 to at least the 1950s are public domain for this reason. More recent laws changed these rules again so that no label or renewal was necessary.
The legal principle is pretty simple, though: You can have derivative works of those public domain texts, but anything still covered by copyright cannot be used. So those elements of Sherlock Holmes’ story that are only in the later stories are still protected by law cannot be directly referenced or built upon, but all the early stuf is fair game.
And to further clarify, the trademark runaround of copyright law would only cover those things that trademark laws would normally cover: marketing of a brand. So the people running around claiming to own the trademark on, say, Conan the Cimmerian, doesn’t mean you can’t create a derivative work of the original Conan character and story, it means you can’t market Conan on your work as a trademark. And, heck, book titles are not covered by trademark to begin with.
Becky: The Life and Loves of Becky Thatcher
I loved this book and the further exploration of the character…
Despite what some have said in this thread, characters CAN be copyrightable. Superman, Mickey Mouse, Rocky, Sherlock Holmes, Tarzan, James Bond… all have been found by courts to be copyrightable. While characters themselves aren’t explicitly listed as a copyrightable category as works in the Copyright Act (so technically they’re not copyrightable in the sense of "I can go to the Copyright Office and put in a copyright for “Character XYZ”), courts have found them protectable against copyright infringement (which is really the important part of copyright). The 2nd Circuit allows any character to be copyrightable as long as he/she is “sufficiently delineated” whereas the stricter 9th Circuit test requires the character to “constitute the story being told” (but there’s some evidence that most courts, even the 9th, are working more towards greater protection for characters).
True, it’s usually VISUAL characters (such as those in comic books or movies) that are more likely to be found protectible, due to their visual characteristics, but this doesn’t shut the door on a purely literary character from being copyrightable. Catcher in the Rye is probably a good example where the character DOES constitute the story being told, all things considered.
I’ve wanted to write sequels of movies using characters from the film. Usually a film that shows children in some highly stressful life-changing event. I’d like to follow the children who were kidnapped in a movie or something.
The way around this is to just change the names. You can make the character and other characters identical, but don’t name them the same. Then it can be considered an ‘homage’ and should protect you entirely from copyright problems.
The problem with copyrights is there is no definitive guide. It really depends on the judge reviewing your case if you get sued. Fan fiction falls in that “gray area.” Most judges which have cases of fan fiction brought before them, will not find for the author of the character IF the fan fiction is non-commerical. It falls into a “fair use” type of deal. Provided it’s an original story. BUT if you’re tyring to sell it, then you’d most likely lose.
Most authors are reluctant to stop fan fiction simply because fans STILL buy their books. If they sued anyone writing fan fiction (as long as they don’t sell it commerically) their fans would take it as an affront and it would cause the author very bad publicity.
Indeed imitation is a form of flattery. Whenever I have seen an author posed the question of fan-fiction, it’s always the same answer, they say they are flattered that their fans care so much about their characters and are impressed by what they read, and then they suggest that their fans write their own books and try to sell them. Of course with different characters. See how easy they go around it?
No, his brother was also named James Bond, obviously, because their parents had no imagination when it came to naming. (Remember that X-File ep. where they visit an old agent called Arthur, played by a different actor than the first time, and explain it that the parents named all brothers and even one sister “Arthur”?)
Another possibility: James’ brother asked James to be godson for the kid, so you get James, and because he was the first offspring, got the junior. Maybe the brother realized that with all that romancing around, James would never settle down normally and have a wife and kids like the brother, so he named the kid to give James the closest to a son he could have. He probably figured that he could still give the next kid his own name.