I'm sure that Anthony Horovitz's new Sherlock Holmes novel, The House of Silk, will be terrific, but I've been puzzled ever since I first heard about it. It has been referred to, for example here, as commissioned by the Conan Doyle estate.
My first thought was: why is there a Conan Doyle estate and what is it doing commissioning books? Arthur Conan Doyle died in 1930, which means that his works came out of copyright in 2000. Which means that anybody can commission or write a Sherlock Holmes story, right?
Well, there really is a Conan Doyle estate and it has a website. Most relevantly of all it has a page dealing with the issue of licensing. This concedes that Conan Doyle is out of copyright in the EC area, 'but after that date a number of characters created by the author will enjoy trademark protection.' Eh? I'll get back to that.
It adds that in the US, the Sonny Bono Copyright Extension Act of 1997 has extended the copyright of certain works for another twenty years. The act was actually enacted in 1998 and is popularly known as 'The Mickey Mouse Protection Act' because a signficant motivation for the legislation was Disney's wish to stop us all being able to make our own Mickey Mouse tee-shirts.
Even so, this protection would only apply to final Sherlock Holmes collection of stories, the much inferior Casebook of Sherlock Holmes.
But what's this about trademarks? The estates claim that Sherlock Holmes, Dr Watson, Mrs Hudson and even the bloody Hound of the Baskervilles are now trademarked. What does this mean? How can a character created in 1887 be trademarked? Can anyone do this? Can I get in quickly and trademark, say, Count Dracula? Or Gulliver? Or Don Quixote? Who gets to do this? Who doesn't get to do this?
I feel that this should be tested in court, but that, immediately, is the problem. There is a serious question about whether Disney's Mickey Mouse copywright is valid. But do you want to make your own Mickey Mouse movie and take on the Disney lawyers? (I must confess that I never cared for Mickey Mouse even as a child.)
Much the same goes for Sherlock Holmes. If you write your own brilliant Sherlock Holmes story in which the great detective lives in a menage a quatre with Dr Watson, Mrs Hudson and the Hound of the Baskervilles, a publisher might well agree with you that the characters are in the public domain. But are they going to spend a hundred grand on lawyers to prove it?
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