Does it take a Sherlock to figure out if Holmes is in the public domain?

April 10, 2013

Two prominent historical characters have recently been the subject of lawsuits regarding licensing fees. Two prominent historical characters have recently been the subject of lawsuits regarding licensing fees. Sherlock Holmes and Zorro, two characters first written in 1888 and 1919, respectively, are common subjects for movies, books and other entertainment media. However, Arthur Conan Doyle's estate has traditionally sought licensing fees for any work using the name or image of the classic English detective. Similarly, Zorro Productions is asking for licensing fees for any use the masked and mustachioed crusader.

Intellectual property and the public domain

Any individual or company seeking to publish, distribute or otherwise use the copyrights of another must first obtain permission from the owner of the copyright and usually must pay a licensing fee for the right to use that work. An exception to this is if the artistic work is in the public domain. In the U.S., any work published before 1923 is in the public domain, as is any work published before 1964 for which the copyright was not renewed. Works that have been dedicated to the public domain are also available for widespread use, and certain ideas, such as titles, short phrases and theories, are not afforded copyright protection.

Sherlock Holmes

Sir Arthur Conan Doyle penned approximately 10 stories starring Sherlock Holmes after 1923. The vast majority of his work, however, was published between 1888 and 1917. That is why author and scholar Leslie Klinger believes Sherlock Holmes and John H. Watson should be available to other creators to use as they see fit.

The Doyle estate has not sued for infringement; rather, they have traditionally proactively sought licensing fees for use of the character. Rather than fight in court, many studios and authors have merely paid the licensing fees as a less expensive alternative to litigation. Klinger, however, told Publishers Weekly that "I believe that it's time that someone takes this case to court" and so is proactively seeking to put Sherlock in the public domain.

He is arguing that because approximately 50 stories starring Sherlock Holmes are in the public domain, that is enough to establish the character as in the public domain as well.

Zorro

In a similar lawsuit, Robert W. Cabell, who wrote a musical entitled "Zorro," is suing Zorro Productions because he claims they have fraudulently obtained trademarks for the masked crusader and have attempted to extend intellectual property protection over material for expired copyrights.

Cabell's lawsuit claims that his musical does not violate any intellectual property rights and seeks to end Zorro Production's trademarks regarding literary, visual and performing arts.

Copyrighted works

It remains to be seen whether these historical characters will become available to any creator for use in entertainment media. Regardless of the outcome of these individual cases, however, prominent characters are continually becoming available to the public domain, and many other creations have become available by a failure to renew their copyrights.

Creators and entertainers concerned about copyrights and licensing fees should contact a skilled intellectual property attorney to ensure their works are protected. Media and entertainment production companies and producers should do likewise in order to avoid infringing on a copyrighted work.

Article provided by Entertainment, Intellectual Property, Internet & New Media Law Group
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