mfioretti: sherlock holmes*

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  1. As reported on the Australian ABC news website, film-makers in the US are finally free to work on Sherlock Holmes stories without paying a licencing free to the estate of Sir Arthur Conan Doyle after a ruling by Judge Ruben Castillo. A quirk of U.S. copyright law kept 10 stories out of the public domain, on the basis that these stories where continuously developed. In his ruling Judge Castillo opined that only the "story elements" in the short stories published after 1923 were protected and that everything else in the Holmes canon was "free for public use" — including the characters of Holmes and Watson. Holmes scholar Leslie Klinger, who challenged the estate, celebrated the ruling. 'Sherlock Holmes belongs to the world
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  2. The estate of Sir Arthur Conan Doyle has put forward a defence ingenious enough for Sherlock Holmes himself in a US copyright case that could redraw the boundaries of copyright law to recognise "complex literary characters".

    The crux of the case lies in whether use of the characters Sherlock Holmes and Dr Watson is covered by copright law until the entire Holmes canon is out of copyright in the United States. At present, 10 stories from the final collection, The Case-Book of Sherlock Holmes, remain in copyright, with the stories due to enter the public domain in different years up to 2022.

    Sherlockian editor and Los Angeles entertainment lawyer Leslie Klinger filed a suit in February with the aim of establishing that the characters of Holmes and Watson are already in the public domain in the US, after he was asked to pay for a licence to use them in his planned book In The Company of Sherlock Holmes. Klinger previously co-edited A Study in Sherlock: Stories Inspired by the Holmes Canon, which includes stories penned by writers Lee Child, Neil Gaiman and Michael Connelly.

    In its defence, filed this week in Illinois district court, the Doyle estate argues that the characters remain protected until the copyrights in the final stories expire, because the subtleties and quirks of character that define the super-intelligent detective, his trusty right-hand man, and the duo's relationship, were developed throughout the entire body of works.
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  3. The case raises the issue of which elements of the Sherlock Holmes stories are in the public domain, and which may remain under the protection of copyright law. Copyright can sometimes, but not always, protect characters and plot. Recognition of copyright protection for fictional characters goes back to Judge Learned Hand, who suggested that characters might be protected, independent from the plot of a story. He wrote “It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.” So, while a writer cannot secure a monopoly on hard-boiled private eyes, one could protect a finely drawn character like Sam Spade.

    While plots can be protected, stock scenes cannot. The doctrine of scènes à faire excludes from copyright protection scenes that flow from common unprotectable ideas. These would include “thematic concepts or scenes which necessarily follow certain similar plot situations” and ordinary literary incidents and settings which are customary for the genre. Thus, a writer cannot preclude others from using such common devices as a car chase or cattle drive in their stories.
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