Yeah, not all Sherlock Holmes stories are in the public domain. As it says in the case you linked only 10 stories out of 56 plus 4 novels were still under copyright (now down to 6).
The Doyle estate lost the case you're referring to and Klinger was allowed to publish his derivative stories.
Disney could try to sue, but I don't think their case is any stronger than the Sherlock Holmes case if the defendant is only deriving material from the original Mickey cartoon.
Klinger was seeking declaratory judgement that he could use the non-protected elements. Doyle estate was saying he couldn't. It was agreed by both parties that he couldn't use elements contained in the 10 stories.
From the case listed "And the claim is correct, for he acknowledges that those copyrights are valid and that the only copying he wants to include in his book is copying of the Holmes and Watson characters as they appear in the earlier stories and in the novels."
Mickey Mouse will most certainly not be in the public domain anymore than he is now. Disney can also fall back on trademark law to take care of Disney's use as well.
That isn't true at all, and it has been tested in court. Look okay Sherlock Holmes. Not all of Holmes is in public domain. As long as the character is based on the PD stories, then it is fine.
So after 2023 you can create a Mickey story based on steamboat willy.
Of course then there are trademark issues to deal with, wish is how I think it should be protected.
Sherlock Holmes is not in the public domain in full. Most of the things we think of as 'Sherlock Holmes' are from stories still in copyright. It's why you see Elementary as a property and Sherlock as modern day. Counterintuitively they had to come up with new ideas because the existing ideas are locked up with copyright.
Couple of other issues.
"Small studios and independent artists could use the original Mickey character"
"Other manufacturers could make Mickey Mouse merchandise. This is probably the biggest direct harm to Disney, but I don't think it'll make much impact on their revenue."
The reason you've seen them make Steamboat Willie LEGO and the current "old-style" Mickey Mouse cartoons is because they're setting up a copyright argument if someone tried. They're also setting up the same arguments that Sherlock Holmes uses which is that the elements of Mickey in Steamboat Willie have been used recently and are thus still locked up by copyright. You can distribute Steamboat Willie, but can not otherwise use the property. The Sherlock Holmes case is here: https://scholar.google.com/scholar_case?case=163248743572192...
"Which is exactly what copyright was supposed to encourage."
No, copyright is an exclusive distribution right. It's a government granted monopoly to provide protection to creative works. The history of copyright is pretty interesting in an of itself and starts with the printing press in the 1500s. Long story short, though, it's always been about commercial exploitation of a creative work.
I didn't mean to infer that Disney stole Sherlock, but instead to demonstrate how ridiculously long copyright terms are still encumbering stories 85 years after the death of the author and up to 92 years after their creation.
Sherlock Holmes is in the public domain, and as far as I know, it's been fine. That might be why there have been so many movies and shows based on the character recently.
Imagine it's 2024 and the original Mickey Mouse cartoon just entered the public domain. How does this impact Disney?
-Anyone could watch Steamboat Willie for free (assuming it's online somewhere). I don't see this harming Disney.
-Another big studio like Warner could make a cartoon with the original Mickey. I doubt any of the big studios are even interested in doing so, but if they do, I don't think it will affect Disney's revenue.
-Small studios and independent artists could use the original Mickey character. I think if anyone does this, it's more likely to help than hurt Disney, by boosting Mickey's profile.
-Other manufacturers could make Mickey Mouse merchandise. This is probably the biggest direct harm to Disney, but I don't think it'll make much impact on their revenue.
Some things people couldn't do:
-Use the Mickey Mouse logo. It's protected by trademark.
-Make a sequel or spin off of a modern Mickey Mouse product. Another studio couldn't just make Epic Mickey 2 since Epic Mickey (2010) is still protected.
I'm not sure Disney makes much money off of Mickey compared to other properties like Star Wars, Marvel, Frozen, etc. Mickey's popularity seems to be waning. Apart from a few video games, he hasn't been in much recently. He has a TV show that did fine but isn't particularly popular.
Okay, but what about other popular properties? The first Harry Potter book was published 24 years ago. What if it were in the public domain?
-J. K. Rowling's net worth is estimated to be over a billion USD. She'll be okay.
-People would still buy new books written by J. K. Rowling.
-Only her earliest books would be in the public domain.
In most jobs, you can't expect to work for a few years and be set for life. I'm not sure why it should be different for authors (and it usually isn't). If your book won't make enough money for you to retire after 20 years of sales, you'd either have to write another book, or get another job. That's already the case for the vast majority of authors.
The trick to dealing with a 20 year copyright term is to keep making new works. Which is exactly what copyright was supposed to encourage.
But this ruling will create a precedent that will make it harder to justify, that Sherlock Holmes entered the domain public and Mickey Mouse should not, although I am pretty sure that Walt Disney's lawyers are already carefully preparing their argument for the next few hundred years of protection extension.
Part of the problem is the character isn't exactly copyrighted. It is the reason why we just had a recent lawsuit about Sherlock Holmes. You are free to create a book or movie about Sherlock Holmes. Just don't use any of the info from the last few books in the series.
I think that Disney should be able to protect Mickey in a trademarked way, and do it at a cost. But it is going to be more complicated than "you can't use the characters"
Well, so in fact the court did strike down the Conan Doyle estate's interpretation of things, so we can continue talking about Conan Doyle creating, not discovering, the character of Watson. And you are right: siding with the Conan Doyle estate would raise questions.
If you'll excuse me to snark for a moment, though: isn't that exactly what's happening with Mickey Mouse? The character keeps evolving and the copyright remains open-ended forever?
When Steamboat Willie enters the public domain, those aspects of the Mickey Mouse character that are in that film will also be in the public domain, so people will be able to use the Mickey Mouse character, as long as they don't use aspects of the character that were introduced in later (and so still copyright) works.
Something similar happened a few years ago with Sherlock Holmes [1]. The original Sherlock Holmes stories are public domain, and so the character can be used without the permission of the Conan Doyle estate. However, some of the later stories are still under copyright, so anything about the character which only appears in these later stories cannot be freely used.
The cynic in me things that this idea is probably the reason why Disney have been so aggressive about using their oldest characters in the last few years. E.g. Steamboat Willy in opening sequences, and the short film before Frozen.
Even if they fail to extend the original copyrights, there are other potential "loopholes" to making it harder to reuse these characters:
The more Disney uses variations of them, the bigger the minefield becomes in terms of sticking to the depictions that enters/have entered public domain. And they may also be going for making it harder to make any use of some of the imagery without running into trademark law as well.
In this case, the author "only" had to deal with the threats and the small minefield of avoiding character aspects revealed in the last 10 Sherlock stories, and so presumably had a reasonably simple task. Perhaps the Arthur Conan Doyle estate now wishes they'd pursued a more aggressive licensing strategy aimed at creating a bigger minefield..
> Steamboat Willie is still not in the public domain.
That's true, but misses the point. Even if Steamboat Willie enters the public domain, Mickey Mouse doesn't enter the public domain.
Sherlock Holmes is in the public domain - I can sell new Sherlock Holmes stories. Mickey Mouse is protected by trademark, so I can't sell a new Mickey Mouse story, no matter how many Mickey Mouse stories have gone off-copyright.
Mickey mouse as a concept will enter public domain. Although with a trademark, it will be hard to do a Mickey mouse animation.
See Sherlock Holmes. Some, but not all of Sherlock Holmes is on public domain.
Also note that trademarks expire, they have to be renewed. In addition, you can lose a trademark. See Kleenex, escalator, zipper, bandaid, etc.
This is from an article on Mickey Mouse that was linked to in the original Sherlock Holmes article:
Here is where it gets tricky: Disney also holds trademarks on its characters, including the “Steamboat Willie” version of Mickey Mouse, and trademarks never expire as long as companies keep submitting the proper paperwork. A copyright covers a specific creation (unauthorized copying), but trademarks are designed to protect against consumer confusion — to provide consumers assurance about the source and quality of a creation.
Boiled down, any public domain use of the original Mickey cannot be perceived as coming from Disney, Ms. Ginsburg explained.
So, there are some really weird cases that lead to very interesting lawsuits. Sherlock Holmes was involved in one: A derivative was made based on early books becoming public domain, and the estate sued them because they felt aspects of his character shown in the derivative work wasn't actually added until a later book which was not yet in the public domain.
Which is to say, if you happen to put a red shirt on your Pooh rip-off, it's very likely Disney can, and will, sue you. This alone means that if you want to adapt Pooh (or Steamboat Willie), you probably need to go a very different direction than Disney has, such that the character is not likely to be recognizable as the same.
It is a curious coincidence how the effective final day of public domain in the US demarcates the public domain Sherlock Holmes (England) from the perpetually-copyrighted Mickey Mouse (US).
I find it kind of offensive how Disney has been putting Steamboat Willie on its opening credits, recently seen in Zootopia, flaunting its perpetual copyright in our faces.
The Doyle estate lost the case you're referring to and Klinger was allowed to publish his derivative stories.
Disney could try to sue, but I don't think their case is any stronger than the Sherlock Holmes case if the defendant is only deriving material from the original Mickey cartoon.
reply