15% of Sherlock Holmes Under Copyright
by Pamela Chestek • January 22, 2010 • copyright
Last Sunday’s New York Times published an article about copyright ownership of Sir Arthur Conan Doyle’s Sherlock Holmes character. The article is largely about the dispute between different parties who lay claim to the US copyright in the Sherlock Holmes stories. The general reaction is surprise that Sherlock Holmes can still be under copyright, but here’s the math.
According to Wikipedia, the Sherlock Holmes stories were published between 1887 and 1927. Google Books offers that some are in the public domain (The Adventures of Sherlock Holmes, published in 1897, and The Hound of the Baskervilles, published in 1901, for example). But the last Holmes book published, The Case-Book of Sherlock Holmes, was published in 1927 and was a compilation of works previously published between 1921 and 1927. Two of the stories published in The Case-Book of Sherlock Holmes, “The Adventure of the Mazarin Stone” and “The Problem of Thor Bridge,” are also in the public domain. They were both first published in Strand Magazine and Hearst’s International Magazine in 1921 and 1922 respectively.
It’s a take-it-to-the-bank fact (well, almost) that books published before January 1, 1923 are in the public domain, and Sherlock Holmes demonstrates why that date is the dividing line. First, assume that no copyright term has been forfeited in the US. So, take “The Problem of Thor Bridge,” published in 1922. At the time of publication, the term of copyright was an initial 28 years under the The Copyright Act of 1909. This means that the first term of copyright would have expired in 1950 and the renewal would have expired in 1978. By 1978, though, the Copyright Act of 1976, effective January 1, 1978, had passed, which extended the term of copyright. In the case of works in their renewal term, as this story was, section 304 of the Copyright Act set the copyright term at 75 years from date of publication. Therefore, the copyright was automatically extended until 1997 (1922+75) and thereafter the story entered the public domain.
Now take “The Adventure of the Creeping Man” published in 1923. Same as above, the original term and extension were 56 years in total, taking the term through 1981, but the Act of 1976 shifting the expiration to 75 years after publication, or to 1998. This makes all the difference. According to section 305 of the Copyright Act, the term of copyright runs to the end of the calendar year in which it would otherwise expire, so the copyright in any work published in 1923 would have expired on December 31, 1998. But, enter the Sonny Bono Copyright Term Extension Act, effective on October 27, 1998. Rather than the 75 year extension previously provided originally under the 1976 Act, the Sonny Bono Act changed the extension to 95 years. So the copyright, rather than expiring on December 31, 1998, was extended for another 20 years and the copyright will now expire on December 31, 2018. The remaining stories, published between 1923 and 1927, will fall into the public domain between December 31, 2018 and December 31, 2022.
Out of four novels and 56 short stories, nine short stories are still under copyright. What that means about using the Sherlock Holmes character at all is another story.
Handy Copyright Office circular for calculating copyright term here.
Update 1/24: NY Time opinion piece on the issue here.
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