The Copyright, The Public Domain and The Heirs

Novels made into film adaptations have become the go to means of producing for new films in the entertainment industry. Film adaptations of novels have led to many legal disputes over the years. These disputes are based on if copyrights are still protected or are the works in the public domain, due to the works dating prior to 1923. Adding to this heated dispute lets add some more fuel to the fire by reviewing some of these cases in detail. There are a lot of works out there in the entertainment market related to the character Sherlock Holmes. Works such as feature length films and the TV show Elementary, which is based current day in New York City. What most people don’t know is that the character Sherlock Holmes was first introduced in 1887 and was featured in four short novels and 56 short stories dating from 1887 to 1927. The question that is constantly disputed is whether Sherlock Holmes is in the public domain or not. Based on changes to our US copyright act everything prior to 1923 is in the public domain, which is where most of the confusion stems from with the character Sherlock Holmes. With that being said, the characters Sherlock Holmes and his sidekick Dr. Watson’s relationship on what they did and how they worked together were created prior to 1923. However, the estate of Sir Arthur Conan Doyle, is saying between 1923 and 1927 versions of the Sherlock Holmes story, are being featured in the current book scheduled for publication by random house.

Lets first mention that the current U.S. law is, life of the author plus 70 years or 95 years after publication, whichever is earliest. Leslie Klinger, a Sherlock Holmes expert who was a consultant on the Warner Bros recent two films brought this case too Illinois federal court. Klinger is hoping for a candid judgment stating that the copyrights have expired on the Sherlock Holmes story elements. Klinger also wants a ruling that relinquishes the Doyle estate from further proclaiming certain rights. The reason this case has landed both parties in court stems from the Doyle estate contacting Klinger and Random House. The Doyle estate is demanding a license agreement be made for the novel that is in preparations called In the Company of Sherlock Holmes, which is a sequel to the first installment called, the Annotated Sherlock Holmes. Many people from Klinger’s group believe the estate holds no valid rights on Sherlock Holmes. However, to avoid court troubles Klinger, attempted to make a deal with the Doyle estate, but ultimately received no deal. The confusion of Sherlock Holmes is based on the various publications between 1921 and 1927 that comprise The Case-Book of Sherlock Holmes. This is a case that will most definitely carry on into the future. Hopefully the result will benefit the public domain, which will benefit the world. This will allow the Sherlock Holmes works from between 1921 and 1927 to be used without a license. This may come to past, due to the character elements of this publication being fleshed out prior to 1923.

In a similar case, there is a dispute going on over the character Zorro rights. The story published in 1919 called the curse of Capistrano was the initial feature of the Zorro character. Filed in Washington federal court, a lawsuit is in play by Robert Cabell, who has published a musical titled Z The Musical of Zorro in 1996. Cabell’s musical is based on the author Johnston McCulley's first Zorro story published in 1919 along with Fairbanks film The Mark of Zorro. John Gertz, who owns Zorro Productions Inc. and has produced four of the Zorro films since the 1980s, in addition to that Gertz also has a musical of his own featuring Zorro. Cabell stated that after licensing his musical so that it can be performed in Germany over the summer, that Gertz threatened him with a lawsuit. In a ruling dating 2001, the judge said that it appears that works such as McCulley's story The Curse of Capistrano and Fairbanks's movie, The Mark of Zorro, both copyrights have already expired. However, it is stated by Cabell that despite the ruling in court, Gertz deceitfully obtained multiple trademark registrations on the character Zorro. This illegal action has undoubtedly led to preventing others from utilizing expired Zorro IP that resides in the public domain. With another threat issued by Gertz over Cabell’s musical, has led them both to court once again. This time Cabell is pursuing a testimony of non-infringement, an undying restrain reprieve, and a cancellation of trademarks currently held by Gertz.

When dealing in a business that thrives on works that are in the public domain, or even a novel film adaptation. Law is power, and knowing the law and your rights will take you that one step further. Dealing with works prior to 1923 or estates whom original authors have died, it is a good rule of thumb to know where you stand incase a litigation try’s to throw a wrench in your million dollar plans. Lastly, always check with either your copyright office or Trademark and Patent office to make sure you indeed have legal right over a work.


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