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The adventure of the copyrighted detective

The adventure of the copyrighted detective

Jun 19th 2014, 22:28 by G.F. | SEATTLE

THE curious case of one Mr Sherlock Holmes has completed its journey through the American courts. Who, if anyone, owns the rights to this precise ratiocinator? An appeals court said on June 16th that in the United States the answer is no one. Mr Holmes as a character, plus the majority of his characteristics and those of his chums, are decidedly in the public domain.

Arthur Conan Doyle’s detective first appeared in a story in 1887. The Conan Doyle Estate, an organisation that looks after the interests of Conan Doyle’s heirs, has said that because ten stories were printed in America for the first time between 1923 and 1927—and so remain under copyright there—all of Mr Holmes’s and Dr John Watson’s salient characteristics are therefore protected. (In Britain and many other countries, all of Conan Doyle’s works entered the public domain in 1980, 50 years after his death. In America the copyright regime has changed for works published in 1978 or later, but most works published between 1923 and 1977 remain in copyright for 95 years.)

Prospero wrote in February 2013 about a lawsuit filed by Leslie Klinger, a lawyer and Holmes expert, who wished to publish a second collection of Holmes-inspired work, edited with Laurie King, an author of detective fiction. For the first collection, he acceded to the wishes of his publisher, which paid the estate a fee. For the second, he refused. He freely acknowledges the in-copyright status of the ten last works, but says he has scrubbed his book of any fact or traits that appear exclusively in those stories. The estate threatened to sue and to warn book distributors against stocking the title.

Mr Klinger’s lawsuit travelled quickly through the courts, and the estate failed to appear during hearings last year. In December 2013 a judge issued a summary judgment in favour of Mr Klinger’s position that any story elements involving Conan Doyle’s detectives that appeared before 1923 were in the public domain. The estate appealed, but a three-judge panel backed the judge when it returned its decision on June 16th.

The estate has relied throughout on an interpretation of copyright law that experts consulted by Prospero and jurists have rejected: that is, that the sum of a character is formed across the entirety of the works in which he or she appears, and is thus protected if any work remains under copyright. The appeals court reaffirmed established law and practice that only sufficiently original elements that appear in individually published works receive such protection.

Richard Posner, one of the three judges at the appeals court and an elegant writer of decisions, noted that the question is “whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work.” Mr Posner writes that it is definitely not the case. Were it to be so, authors would have a direct incentive to continue writing stories with old characters to keep copyright protection in effect for longer periods of time. (The entire decision is worth a read; it’s quite amusing.)

The estate has not let previous setbacks stop it from claiming rights that it asserts it possesses. Mr Klinger may proceed with his publication, but in the tetchy world of publishers, television studios and film studios, in which expensive operations can be halted through a whisper of ownership worries, Conan Doyle’s heirs may continue to collect royalties. And the Supreme Court may be called upon once again to investigate, prognosticate and make logical deductions. Unlike those solved by the great detective, this case is not closed.

 

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About bambooinnovator
Kee Koon Boon (“KB”) is the co-founder and director of HERO Investment Management which provides specialized fund management and investment advisory services to the ARCHEA Asia HERO Innovators Fund (www.heroinnovator.com), the only Asian SMID-cap tech-focused fund in the industry. KB is an internationally featured investor rooted in the principles of value investing for over a decade as a fund manager and analyst in the Asian capital markets who started his career at a boutique hedge fund in Singapore where he was with the firm since 2002 and was also part of the core investment committee in significantly outperforming the index in the 10-year-plus-old flagship Asian fund. He was also the portfolio manager for Asia-Pacific equities at Korea’s largest mutual fund company. Prior to setting up the H.E.R.O. Innovators Fund, KB was the Chief Investment Officer & CEO of a Singapore Registered Fund Management Company (RFMC) where he is responsible for listed Asian equity investments. KB had taught accounting at the Singapore Management University (SMU) as a faculty member and also pioneered the 15-week course on Accounting Fraud in Asia as an official module at SMU. KB remains grateful and honored to be invited by Singapore’s financial regulator Monetary Authority of Singapore (MAS) to present to their top management team about implementing a world’s first fact-based forward-looking fraud detection framework to bring about benefits for the capital markets in Singapore and for the public and investment community. KB also served the community in sharing his insights in writing articles about value investing and corporate governance in the media that include Business Times, Straits Times, Jakarta Post, Manual of Ideas, Investopedia, TedXWallStreet. He had also presented in top investment, banking and finance conferences in America, Italy, Sydney, Cape Town, HK, China. He has trained CEOs, entrepreneurs, CFOs, management executives in business strategy & business model innovation in Singapore, HK and China.

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