I can finally retire the "Sherlock Holmes' emotions are still copyrighted" legal argument that I used to use for explaining the penumbra of the public domain.
Netflix was about to take them to court over Enola Holmes, but all parties eventually settled and the suit was dropped.
Likely the Conan Doyle estate realized their final copyrights were about to be up and it wasn't worth the legal battle they would likely lose because "having emotions" is incredibly vague.
Which means Holmes believed in some really batshit ideas. But since the world of Holmes is defined by Conan Doyle, shit like phrenology was real in that world.
Like he could determine cultivars of tobacco from looking at and feeling the ash. And other people never pick up on things that even the reader could. But Holmes does. And then you feel smart, because you even beat Holmes to the punch.
My wife has been watching Bones (again) and I've noticed this a lot there too. It was an episode where the victim was a nine-year-old child. They "digitally reconstructed" the child's appearance and couldn't find a match, but then noticed the hair was dyed, the teeth were veneered, etc. And it's obvious, the child was on the pageant circuit. But they didn't put it together until the answer was given to them. Later on, same thing with a murder weapon. They assumed it was a steel-toe boot, but it's pageant contestants, tap shoes are also available. Etc. etc. And yes, tap shoes were used in the murder.
And there's two reasons for this. This is how smart the writers are. They honestly think this takes significant deductive ability. And making the characters figure it out faster would be implausible. Or. They want the viewers/readers to feel smart. And one way to do that is to make them able to figure out the pieces before the characters. Characters who are the smartest because we're told they're the smartest.
It falls apart due to the sheer probability of the events involved. However, the stories are almost always entertaining, despite that.
i.e. This story: https://en.wikipedia.org/wiki/The_Red-Headed_League
Summary; Man hired to copy books for a large pay. Lots of things don't add up at all. Turns out, it was a long con to use his shop space (he was gone while copying books) to tunnel into a bank across the street. How Sherlock Holmes found this out is completely improbable. For some reason though, I just love watching all the clues fall together. They're also relatively short stories.
I really like stories like the one you describe too though. I think I just like mystery genre in general and I'm not super picky, haha.
I think almost all stories work like this due to the nature of how you structure a story:
- Introduction - characters and concepts are introduced
- Middle - anything can happen and usually some important new characters and concepts are added
- Build-up - all the pieces are assembled and are being being put together, tension increases
- Climax - the puzzle is completed and shown to the reader/viewer
- Conclusion - payoff for the characters, they lived happily ever after
Detective novels often try to give the reader the opportunity to put the pieces together before the characters do. Other stories can give you a similar pay off though.
Bones is fine television. Sherlock Holmes is a fine read. I have the collected works in two volumes.
But I do notice a tendency among people to use fiction as evidence of reality. So it's good to remind myself that characters are reflections of the author, not of reality.
I think a healthy blend of "fiction for reality" is best. Too little makes life boring, too much makes it unrealistic.
Or they think the characters wouldn't be familiar enough with that topic to easily hit the solution.
Sherlock Bones, Dog Detective?
Ask pretty much any AI model, it still is.
So, the rules of copyright are conceptually very simple:
- Authors own a copyright over their work for a limited amount of time, then it is escheated to the public domain. While a work is under copyright, you need to get permission to copy it.
- You can't copyright ideas - that requires owning a patent, which has a far higher bar[0] to clear in order to get. You only get copyright over expressions of ideas - at a minimum some combination of uncopyrightables that itself can be considered to have a "thin copyright".
- Works that are "based on" another work are called derivative works. If a work is under copyright, you also need permission to make derivative works. If you got permission, then the new work gets its own separate copyright owned by the new artist.
Now, you would assume that whatever is in the public domain is public domain, right? Well, only sort of. Because derivative works get a fresh shiny new copyright, that casts a shadow on the public domain. So I can publish the original text of Shakespeare's Romeo and Juliet, but that doesn't mean that I can perform West Side Story just because it's a derivative of Shakespeare. But at the same time Jerome Robbins can't sue me for performing Shakespeare. The exact shape of a derivative's copyright is the amount of creativity added, and no more.
Therefore, I can still make my own twist on Shakespeare. But I have to be careful. If I decide "hey let's make our own 1950s New York gang warfare take on Romeo and Juliet", then I'm getting closer to just ripping off West Side Story. In fact, there's even a term-of-art for the minimum quanta of copyright: "thin copyright", which is applied to creative combinations of uncopyrightable elements.
Sherlock Holmes is a series of detective stories published as serial fiction[1]. Notably, the series was ended by the creator killing off Sherlock[2], and then brought back about a decade later. This is known by Sherlock fans as "The Great Hiatus"; and after Sherlock was brought back the author started writing him with a lot more emotion.
Let's go forward about one life plus 70 years ahead of time. You're a descendant of Arthur Conan Doyle and your gravy train is about to end, because people can just use Sherlock Holmes and not pay you anymore. Except that only part of the franchise is in the public domain. Specifically the part before the Great Hiatus. And afterwards, Sherlock is arguably a different character. So obviously, if someone makes a Sherlock Holmes adaptation where he acts like post-Hiatus Sherlock, then clearly it's infringing the copyrighted stories!
And if it weren't for those meddling kids, the estate of Arthur Conan Doyle would have gotten away with it, too. Actually, I'm kinda toning down the original argument. They thought that they could recopyright all of Sherlock Holmes by just owning one of the stories with him in it, which is not how copyright works. "Only copyrighted Sherlock is allowed to emote" was their second argument, which they abandoned when settling with Netflix.
It just occurred to me: next year, Mickey Mouse is public domain. I REPEAT: THERE IS ONLY ONE YEAR UNTIL THE COPYRIGHT ON STEAMBOAT WILLIE EXPIRES. So we're going to see all sorts of litigative fireworks as Disney tries to hold onto that cartoon mouse for dear life.
[0] Copyright is automatic, patents require a filing fee. Please stop laughing.
[1] Specifically, as part of a larger magazine. Victorian Brits subscribed to magazines to read Sherlock Holmes in the same way that Japanese teenagers subscribe to Shonen Jump today to read One Piece.
[2] Which was just as controversial and shocking as, say, a manga ending its run in a magazine today. Sherlock Holmes is basically the ur-fandom that all other fandoms were cloned from.
After Steamboat Willie is out of copyright, anyone will be able to distribute copies of it. If distributors use the mouse image in a way that confuses consumers into thinking their copies came from Disney, however, then they may infringe Disney’s trademark.
EDIT: Just in case I can't directly link TESS, the trademark serial is #97285747
For example, states have "right of publicity" laws, but you cannot use them to overturn, say, the copyright interest that a paparazzi has in an unauthorized photo of you. Yes, there are literally court cases in which people have been photographed by paparazzi, reused the photo that the paparazzi took, and then were sued for doing so. Celebrities will counter-argue right of publicity, but federal copyright preemption dissolves those claims[0].
Furthermore, trademark law only specifically applies to source-identifying contexts. And the standard for confusing trademarks is lower than the standard for derivative works in copyright. A year from now when Mickey Mouse hits public domain, if I want to just use him in a book, that's not a trademark violation. If I want to put him on the cover, then that's a trademark violation - but only if the specific way I drew him looks like the trademarked Disney logo. If I were to draw, say, a hyper-detailed portrait painting of the mouse and put that on the cover, that would be obviously not identifying Disney as the source of the work and thus not a trademark violation.
Keep in mind: this is already happening with Winnie the Pooh. There's an indie filmmaker who is making an unlicensed horror movie where the cartoon bear is a murderer. Nevertheless, he has Winnie the Pooh in the title. Nobody is going to confuse this for a licensed Disney film, however, because the cartoon bear is a murderer.
[0] Yes, this also implies that the rights of artists trump the right of privacy in the US, at least when no other crimes are committed. In, say, France, this is the opposite: public photography requires permission from every person in the photograph, so photographing large crowds is about as legally risky as training an AI to draw with copyrighted images in the US.
In the most of the world. In certain jurisdictions, public domain actually means you have to pay the state instead: https://en.wikipedia.org/wiki/Paying_public_domain
This is the absolute dumbest idea I could have imagined. Like, this is the sort of thing you'd make as an argumentum ad absurdum against copyright maximalism. You literally cannot legally create new works without an unpaid public domain backing them.
...That being said, some kind of state-run licensing scheme could fix some of the bigger problems with long copyright terms. i.e. maybe you only get 20 years of fully exclusive licensing, and then the rest of your life+70 term is compulsory licensing royalties from the state. But I doubt you'd ever see that given how the entire international copyright system is basically non-negotiable nowadays.