New Years Day celebrates new beginnings, and for creators, a new batch of classic works that have escaped copyright, and bounce joyously Into the Public Domain.

Yes, Sherlock Holmes is now available for anyone to use, for better or worse starting this weekend. Sir Arthur Conan Doyle wrote his last Holmes story in 1927 – The Case-Book of Sherlock Holmes. That story, and works from ’27 and earlier enter the Public Domain on January 1st, 2023. This includes classic films like scifi masterpiece Metropolis (directed by Fritz Lang), The Jazz Singer (the first feature film with dialogue), and The Lodger (Alfred Hitchcock’s first thriller). Also included are classic songs like Puttin’ on the Ritz (Irving Berlin), Ol’ Man River (from Showboat), and appropriately – The Best Things in Life Are Free (the Buddy DeSylva / Lew Brown (lyrics) and Ray Henderson (music) version, not the Janet Jackson one), and books such as Steppenwolf by Hermann Hesse and The Tower Treasure by Franklin W. Dixon (The first Hardy Boys mystery).

Sherlock Holmes in ‘The Adventure of The Public Domain’

What happens when a work containing a character, like Sherlock Holmes, enters the public domain, but also appears in works that are still copyrighted? A puzzle.

The law is clear: the original version of the character enters the public domain at the same time as the work that contained it. Some copyright holders do not like that answer. For example, the Conan Doyle Estate Ltd. continued to demanded steep licensing fees for the use of The Great Detective and his friend Watson for decades, though the character had technically entered PD in 1981!

A challenge had to be made eventually, and it was my friend Leslie Klinger, a lawyer and Sherlock Holmes scholar, who fought back. Klinger was the co-editor of In the Company of Sherlock Holmes, an anthology of new Sherlock Holmes stories inspired by Doyle’s works from 2011. The Doyle estate threatened in writing to block the book’s distribution, and had the clout with Amazon, etc. to do so. Leslie went to court to seek judgment that he was free to use the Holmes and Watson characters from Doyle’s public domain works. In December 2013 a lower court decided:

“Where an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works.”

The estate appealed, in a move that the Seventh Circuit Court of Appeals described as “frivolous” and “quixotic.” The decision was upheld. We reported it here.

The estate’s arguments were based on the many changes to Holmes that Doyle made over the years. Those did not touch the PD original, according to the courts. This decision will be important again in 2024, when Mickey Mouse enters public domain. Mickey has had many different looks, but the original will be free to use.

Why does the public domain matter?

When works go into the public domain, they can legally be shared, without permission or fee. Local theaters can screen the films. Youth orchestras can perform the music. Online repositories like the Internet Archive, HathiTrust, Google Books, and the New York Public Library can make works available to everyone free online. This helps preserve materials that might otherwise be lost to history.

Public domain works are also a wellspring of creativity. For example, after F. Scott Fitzgerald’s The Great Gatsby (1925) entered the public domain in 2021, there were several new editions published and new adaptations. In 2022, Winnie-the-Pooh made the same transition into the public domain, and there were many new uses, including Ryan Reynolds’ “Winnie-the-Screwed” ad, and a Winnie-the-Pooh slasher film called Winnie the Pooh: Blood and Honey.

I may not like every new version of a character or story, but like Shakespeare, we are free to try. And we will, since Holmes is already the most frequently adapted character in film and TV.

Copyright vs Trademark

Will Mickey Mouse, Sherlock Holmes and the Hardy Boys all become a copyright-free wonderland for creators? Not so fast, some say. While the copyright on the the published works may lapse, trademarks are another kind of protection big media may bring to bear on the situation. Since they don’t lapse the way copyrights do, the trademarks on characters like Mickey Mouse may prohibit the marketing of any works created from the public domain works even though the copyrights have expired.

At final analysis, copyright protection was originally meant to protect the authors of creative works so that they would have incentive to create more art. U.S. copyright law already extends beyond the original creator’s lifetime; the original purpose of copyright cannot be served. Dead authors write no new books. Of course, this isn’t stopping big companies like Disney from trying to further extend the protection of copyrights, as they did in 1998 with the Sonny Bono Copyright Extension Act. In fact, the company pushed so hard for the extension of copyright protections that the result was derisively nicknamed the Mickey Mouse Protection Act.

Supreme Court Justice Ruth Bader Ginsburg had expressed concern over the situation. She said she was watching closely to see if Disney and other entertainment companies tried to apply trademark law as a substitute for or extension of copyright — as she put it, “apply a separate protection to get to the same place.” In a Supreme Court intellectual property case from 2003 involving 20th Century Fox, Justice Antonin Scalia, writing for the court, warned of using trademarks to generate “a species of mutant copyright law.”

“This is a looming area,” Ms. Ginsburg said. “We’re on the cusp of a time when copyrights in a range of visual works will expire.”

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