publishing a Sherlock Holmes pastiche without breaking copyright law?

[missviolet]

Due to the excessive spamming of this entry, I am disabling comments.

Even though most of the Canon is in the public domain (except the Casebook), the characters of Holmes, Watson, et. al. are protected by copyright. At least, I think they are, but it's very hard to tell because the Web site that purports to be the Conan Doyle Literary Estate

Comments

[woldy]

Googling brought up this which says that the copyright only remains for one of the books, and only in the US.

Would you be self-publishing or taking the story to a publisher? If the latter, then arguably you could just leave the problem of copyright to the publisher- if people are publishing Holmes pastiches at the moment then presumably publishers wouldn't have a problem with yours.

[mlleviolet]

Self-publishing. I don't know what other pastiche writers do but I would be surprised if the smaller presses got licensing. It's not the books but the characters which are possibly copyrighted, it's hard to tell, kind of a murky issue.

[woldy]

Sounds to me as though it's contested and the literary estate is taking the widest possible interpretation of what their copyright covers, i.e. that it covers the characters and not just the final book. I presume that you're US based and therefore it is the American copyright that affects you? Unhelpful as this is, my 2 cents is that the possibility of legal repercussions (or even just a threatening letter that might put you off the idea of publishing after you'd done all the writing) sounds like a good reason not to self-publish this kind of work. Sorry!

[missviolet]

Yes, I am US based. Yeah, it would be the safest course but I can't help but wonder at publishers so much bigger than myself, e.g. Quirk Books, taking this risk without getting licensing. If the estate doesn't go after them, surely they wouldn't go after a rinky-dink small self-published author who might only sell 1,000 copies (in her wildest dreams)?

I guess my question isn't so much about the right thing to do, which would be to refrain from writing pastiche, as it is about what I can get away with. That doesn't make me sound like a very decent person but really I'm just a huge Holmes fan who has been wanting to publish a pastiche for years.

[frabjously]

Actually the USA fair use exception tends to find for-profit fanfic to be infringing (as in the Salinger case) because for-profit uses tend not to be seen as "fair". Unless the for-profit is seen to be directly criticising/reviewing the original work it seems unlikely to come under fair use.

I did some googling about copyright duration and found this. Basically what it says is that all works published between 1923 and 1978, as long as their copyright did not expire before 1992, the copyright duration was changed ("renewed") to 95 years after publication instead of author's life + 70 years. Since the last work was published in 1924 it would mean that copyright would expire in 2019.

[frabjously]

Well the Wind Done Gone and Pretty Woman cases were all about whether or not the derivative work critiqued the original and to what extent. So it's a matter of degree and would depend on the pastiche in question. As the commenter below me correctly notes, the US draws a line between parody and satire (which I think is ridiculous, but anyway) and a pastiche could conceivably be seen as satire and therefore unprotected.

[msilverstar]

For what it's worth, One of the commentators in the Scalzi blog discussion says that parody is protected, but not satire. And that courts have defined those terms oddly, so they're nearly the opposite of the literary meanings.

http://whatever.scalzi.com/2010/05/05/author-pokes-fanfic-hive-film-at-11/

ps - try not to read the comments from Greg, they're like train wrecks, every one.

[msilverstar]

That's good, hairsplitting is likely to make bad law.

[kappamaki33]

1. Yes, characters *can* be copyrighted and infringed, independent of their stories. They just have to be unique enough to not be considered stock characters, and the infringer has to take enough of those unique aspects. Bodily appropriation--ie, not just borrowing a few traits of a character for your character, but taking a whole character, name, face, personality, and all, and plopping him in a new story--is more likely infringement. That seems to be what you're talking about here. (Cases: Gaiman v. MacFarlane (Spawn comics characters), Anderson v. Stallone (Rocky), Nichols v. Universal Pictures

[frabjously]

#3 is so interesting it makes me want to write an essay about it. And that's saying a lot ;)

[mlleviolet]

Yes, it is a tricky issue. I suppose the safest route would be to default to what the literary estate claims, that the characters are trademarked. Since my pastiche would be for-profit (although any profits I would gain would be surely meager), I don't have the same recourse as if I were posting it for free to my blog, as I usually do. Thanks for the info, though.

[missviolet]

mlleviolet and missviolet are the same person, sorry for the confusion. missviolet is my slash LJ, the other is slash-free.