The long fight over copyright protection for Sherlock Holmes came to an end yesterday. Judge Richard Posner, who earlier this year rejected an argument by Arthur Conan Doyle’s estate that would have extended the copyright on the author’s early Sherlock Holmes stories, smacked down the estate again, ordering them to pay author Leslie Klinger’s legal fees after trying to extract a licensing fee from him that he was not legally required to pay.
The decision is partially about the crassness of the Conan Doyle estate’s extortion scheme. But the battle also provides a useful illustration of the ways in which copyright can impact not just the money artists and big companies can make from art, but the kind of art that they make.
Since Sherlock Holmes has entered the public domain, creators have been able to riff on the character, his best friend Dr. John Watson, and the idea of deduction in a wide range of media. Certainly, Sherlock Holmes and Holmes variations are part of a larger trend in genius but anti-social heroes. But at least there is some variation in the Sherlock stories that have flooded the marketplace in recent years.
The long-running “House,” whose painkiller-addicted main character owes a heavy debt to the famous sleuth and his cocaine dependency, focused on the relationship between brilliance and substance abuse. Robert Downey Jr.’s turn as Holmes in Guy Ritchie’s films gave the detective a more active relish for the London underworld, with the addition of a talent for bareknuckle boxing. And “Sherlock,” a co-production of the BBC and Boston’s WGBH public television station, explores the intimacy of friendship between men with a tenderness and emotional intelligence that is rare in popular culture.
All of this variation is possible because the copyright on Conan Doyle’s stories has lapsed. We have a rather less encouraging creative example of what happens before works come out of copyright in the current superhero movie landscape: If you have ever wondered why Spider-Man movies keep arriving in theaters on a regular basis, you can look no further than copyright and licensing. Sony, rather than Marvel Studios, owns the rights to the webslinger. But to hold onto those rights, Sony has to keep using them. Otherwise, Spidey reverts back to his parent entertainment conglomerate, as was the case with Daredevil, who returned to Marvel after a stint at Twentieth Century Fox. The company cannot just wait until the public has forgotten Tobey Maguire’s stint in the red-and-blue suit and is hungry for a riff on the character from someone new.
Spider-Man has to swing back onto our screens again and again to keep making money for Sony. And because it is the same company making movies about the same character in the same format, there is only so much room for variation. The actor playing Peter Parker can change, and the movies can cycle through his love interests, swapping out Mary Jane Watson for Gwen Stacy. But Peter Parker will always be the same lanky youngster, his antagonists will always be products of science gone awry, and our hearts are supposed to rise in our throats every time Spider-Man whips across the New York skyline for the first time.
I do not mean to suggest that copyright should not exist. I have little patience for the idea that art should be free and artists should make a living on the imagined generosity of their fans. But as copyright terms have gotten longer, and when copyrights are held by large corporations rather than individual artists, it is worth remembering that just because a legal regime makes art a viable business does not mean that the art that results is any good.