They are both in the public domain....but, for very different reasons.
In 2011, photographer David Slater was shooting wildlife in an Indonesian Forest. At one point during his three-day trip, he set his camera on a tripod and walked away. When he returned, he discovered that some monkeys had taken his camera and snapped off over 100 pictures, including the wonderful "selfie" to the left. Mr. Slater claims he owns the copyright to this picture.
Copyright protection extends to the author of the work at the moment of creation. In this case, however, Mr. Slater did not take the picture. The monkey did. So, who owns the copyright, the monkey? No. Sadly for this beautiful monkey, copyright regulations are clear that works created by animals are not eligible for copyright protection. Alas, this picture was in the public domain the moment it was taken and can be freely copied and distributed and posted on blogs that talk about the copyright protection of the character, Sherlock Holmes.
Copyright protection extends to the author of the work at the moment of creation. In this case, however, Mr. Slater did not take the picture. The monkey did. So, who owns the copyright, the monkey? No. Sadly for this beautiful monkey, copyright regulations are clear that works created by animals are not eligible for copyright protection. Alas, this picture was in the public domain the moment it was taken and can be freely copied and distributed and posted on blogs that talk about the copyright protection of the character, Sherlock Holmes.
Sir Arthur Conan Doyle wrote dozens of stories starring the detective, Sherlock Holmes. His stories were published between 1887 and 1927. Copyright protection for these works flows from the 1909 Copyright Act, as modified in 1976 and 1998. In short, the stories are protected for 95 years from the time of publication (this formula differs from works created after 1976, which are protected for the life of the author, plus 70 years). Under this formula, all but 10 of the Sherlock Holmes stories are now in the public domain. The question is whether the character, Sherlock Holmes, itself is in the public domain.
That issue is now on its way to the U.S. Supreme Court (if they decide to accept the case). Judge Posner, writing for the 7th Circuit, in an opinion published August 4th, rejected the argument by Doyle's estate that the character of Sherlock Holmes continued to evolve and become more complex throughout Doyle's series and, therefore, the character itself is protected by copyright until 95 years after publication of the last story in 1927 (so protection would last until 2022). Rather, Judge Posner said, "[w]hen a story falls into the public domain, story elements - including characters covered by the expired copyrights - become fair game for follow on authors. There is no ground known to American law for extending copyright protection beyond the limits fixed by Congress."
So, unless the Supreme Court picks up this case and finds some unprecedented reason to extend the copyright life of Holmes, it seems the character is "fair game for follow on authors" and the Doyle estate ends up looking like a mon....well, looking silly.
That issue is now on its way to the U.S. Supreme Court (if they decide to accept the case). Judge Posner, writing for the 7th Circuit, in an opinion published August 4th, rejected the argument by Doyle's estate that the character of Sherlock Holmes continued to evolve and become more complex throughout Doyle's series and, therefore, the character itself is protected by copyright until 95 years after publication of the last story in 1927 (so protection would last until 2022). Rather, Judge Posner said, "[w]hen a story falls into the public domain, story elements - including characters covered by the expired copyrights - become fair game for follow on authors. There is no ground known to American law for extending copyright protection beyond the limits fixed by Congress."
So, unless the Supreme Court picks up this case and finds some unprecedented reason to extend the copyright life of Holmes, it seems the character is "fair game for follow on authors" and the Doyle estate ends up looking like a mon....well, looking silly.
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