“The Game is Afoot”: Copyright, Fanbases, and Remix Culture

Before reading Lawrence Lessig’s Remix, I already had an interest in—if not very comprehensive knowledge of—copyright law. Lessig’s book reminded me of a recent(ish) legal case involving late-Victorian literature that I followed and which prompted me to think about the ways in which ideas of copyright law and remix culture are actually framed in public discourse.

Sherlock Holmes and John Watson Illustration by Sidney Paget for the story "The Greek Interpreter," which appeared in September 1893 issue of The Strand Magazine.
Sherlock Holmes and John Watson
Illustration by Sidney Paget for the story “The Greek Interpreter,” which appeared in September 1893 issue of The Strand Magazine.

About a year ago, Leslie S. Klinger, leading Sherlock Holmes expert and editor of The New Annotated Sherlock Holmes (a three-volume behemoth that took up quite a bit of my savings—and now quite a bit of my desk) filed a civil complaint against the Arthur Conan Doyle estate regarding the copyright status of the author’s most famous stories. Jennifer Schuessler of the New York Times gave a fairly thorough summary of the proceedings in her 15 February 2013 blog post, but the main gist is that Klinger protested against what he saw as unfair licensing fees for the (“remixed”?) versions of Doyle’s characters featured in “In the Company of Sherlock Holmes,” a collection of Holmesian stories he edited. Klinger argued that “since the main characters and elements of their story derived from materials published before Jan. 1, 1923,” they were no longer under the jurisdiction of U. S. copyright law, and his “complaint asks that the court make a declaratory judgment establishing  that the basic ‘Sherlock Holmes story elements’ are in the public domain” (Schuessler). Free-Sherlock.com, not to mention innumerable fan-sites, blogs, and social media outlets followed the case eagerly, the former providing a blow-by-blow of the actions filed, cases reviewed, and results achieved.

And, lo and behold, less than a year later (27 January 2014), Klinger—at least temporarily—won his case and Sherlock Holmes officially became part of the public domain. But what does that even mean?

In a segment titled “Sherlock’s Expiring Copyright: It’s Public Domain, Dear Watson,” All Things Considered explains that “A federal judge in Chicago recently ruled that the characters in Arthur Conan Doyle’s stories — excluding any elements introduced in the last 10 stories released in the U.S. after 1922 — now reside in the public domain”—even though those ten stories will be available within a decade. Yet, the matter does not rest there: Doyle estate attorney William Zieske claims that a forthcoming appeal will argue “that a character, particularly a literary character, really does not become entirely formed until the author has put down his pen and finished with the last story that develops that character” (All Things Considered). If we are using Lessig’s terminology, it seems we have reached an impasse (at least in opinion) between RW and RO.

Yet, I can’t help thinking about the dedicated Holmes fan-base, which has existed since the first stories first appeared in the The Strand Magazine in the 1890s and has only grown in size and enthusiasm over the course of the twentieth century, and in the wake of popular twenty-first century adaptations  like the superb BBC modernization, Sherlock. In fact, according to Christopher Redmond’s 2009 A Sherlock Holmes Handbook, “Sherlock Holmes has appeared in more films, and been represented by more actors than any other character” (232)–that is saying something, particularly considering the broad range of interpretations, parodies, and spinoffs that have been created in almost every medium possible.

Besides these “official” adaptations, there have also been a broad range of fan-created interpretations that exist largely online (art community and forum deviantART seems to be a major breeding ground). Popular iterations include slash pairing Johnlock, gender-swapped version Femlock (with some crossover to the previous iteration), and the ever-popular turn-human-characters-into-some-sort-of-adorable-animal (Sherlock ponies are a thing).

(http://bbcsherlockftw.tumblr.com/SherlockGIFS)
Adapting/remixing: it’s what people do. (Besides die, in the original context–James Moriarty (played by Andrew Scott) from BBC “Sherlock” episode, “The Great Game”)

Often, these “remixes” are artistic/aesthetic, but there’s also plenty of fan fiction, video mash-ups, and cosplay that supplement and fuel these offshoots. Gregg Gillis’ characterization of what he does with music being “more like a game and less like a product” (15) applies here–it’s probably safe to assume that most people in this particular fandom are simply engaging in these various ways out of love rather than with the desire to “publish” or profit from their “products” outside of sharing it with other fans. The “game” is indeed afoot.

What then do we make of this sort of unofficial “remixing,” particularly in the context of the still-raging debates about what use of texts/characters is allowed in legal terms, as well by the unspoken rules of fan-created media?

(A disclaimer: my appreciation of the Sherlock Holmes canon has never prompted me to venture into the realm of creating fan art, fan fiction, or “product” of any kind–I just observe many of these iterations with some amuse-/bemusement.)

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9 thoughts on ““The Game is Afoot”: Copyright, Fanbases, and Remix Culture”

  1. Petra,

    I love the way you focus Lessig’s thinking about remix on this specific legal case. (More Sherlock = more fun, obviously. Also: Sherlock ponies?!?!) One thing I didn’t understand very well after reading our selection of Lessig was exactly *what* the parameters of these copyright laws are– though I suppose this is largely because the laws are various, nebulous, and unevenly applied.

    What really struck me in this case was Zieske’s claim that “a literary character… does not become fully formed until the author has put down his pen and finished with the last story that develops that character.” What an argument! Again, it makes me want to draw parallels to academic writing. It would be seen as absurd if an academic insisted that no one apply her ideas until she was completely done developing them through the course of a scholarly career. Why are art and scholarship seen as so completely different, as governed by such different rules of intellectual ownership? Why do we insist that art is developed alone, in a vacuum? I’d wager it has something to do with an (obviously erroneous) belief that art is supposed to be wholly “original” and produced from the “genius” of the artist alone. In a situation like this, it seems so unlikely that this is really just about money, since the greater the fan culture and the more remixes out there, the more likely people are to read the original, right? Watching the (brilliant) TV series made me want to read Doyle, anyway.

    Kiley

    1. Walter Benjamin would have something to say about art needing to wholly “original”!!

      But given how pervasive media and culture are because of digital technologies, is it even possible to definitively claim that something is “original”? Or do we just need to expand our notions/definition of originality to suit these new digital affordances? I’m not a fan of the term “original” so much as I am of attending to how a work places “older” elements in new contexts, which I think you touched on in your post in regards to academic writing, Kylie.

  2. This is fascinating, Petra, and all new to me. Thanks for this clear and topical update.

    My question is a simple one: How could keeping Sherlock Holmes out of the public domain possibly support more creative work? This seems a pretty clear of instance of it being a corporation or estate, rather than artist or producer, being the beneficiary of copyright—to the detriment of the rest of us.

    Joe

  3. Kiley and Joe–You both have pointed to an issue that has bothered me about this as well, that it seems counterproductive to limit the uses of Doyle’s characters in certain spheres when they have already been so thoroughly “remixed” in others. I wonder if we might not compare the actions of the Doyle estate to Lessig’s anecdote about Yoko Ono’s management of John Lennon’s. In that case, we are still talking about an estate of a deceased artist calling the shots, but one in which family instead of a legal team is involved–in both, it seems Lessig’s claim that “A principle was a stake” (11) applies, though I agree, less understandably in the case of Holmes and co..

    I also agree with you, Kiley, about Zieske’s claim being an almost insupportable one and I find your connection to academic writing to be really fascinating. After all, I think many would agree that academic production should not necessarily be considered un-creative or -“artistic,” nor should creative production be considered un-academic or non-derivative. Both are possible and neither are bad.

    1. I think Michael gets at this a bit in his reply, about the attempt to control “who” Sherlock Holmes is as a character, and I can add a bit here. I got into Doyle after watching the Guy Ritchie films (with Robert Downey Jr. and Jude Law), and one of the things I distinctly remember reading about in a couple articles, and on a lot of fan blogs, is part of the estate’s (specifically US copyright holder, Andrea Plunket’s) dissatisfaction with the increased homoeroticism those versions bring forward. I’m not certain how serious anyone took her threats, but she did claim in between the first and second film to try to block the movie on copyright grounds as too gay of a Sherlock Holmes goes against the spirit of the original texts. She has also tried to make money off of the BBC adaptation, rather unsuccessfully, so I don’t know if she is a perfect example here, but still helpful, I think.

  4. 1. Oh man, you basically just did like 2 weeks worth of research on my potential dissertation for me. Also, I need to see these editions. Be in the same room as the editions. Heck, I just want to know they’re for real and that I can pay money to have them.

    2. The debate over the rights of Sherlock as a literary entity and his style of tale is really disconcerting–though I believe it grows, in part, out of the sudden expansion of its media presence and the (apparent) expert-author continuation of the tales, which are officially sanctioned by the Doyle estate, for all the cultural and economic value such sanctioning might have. Making Sherlock RO (pun hur hur) might therefore be a way to preserve this project’s economic value, and increase the value of these official continuations. I’d have to look up who’s doing them, though, but it was announced fairly recently. It also makes me worry that one day a religion might try to copyright its god, given the cultural shadow that Doyle’s detective casts (hence ALL my dissertation ideas).

    A principle may indeed be at stake, only in this case its over “how far must a particular character take on a life of its own before it cannot be owned?” The judge’s decision, that you note here, about the pen being laid down, might be a double-edged sword–if the judge means that now-dead Doyle’s pen has been laid down and Sherlock is done, all subsequent works are remixes, parodies, or adaptations, and therefore basically public. If the judge (or a future judge, oh Common Law!) says the pen has never been laid down, then there’s a significant argument to be made that Doyle is no longer the *sole author*, and therefore, that the work is a cultural product (rather like a god or a myth) immune to normal copyright procedure except in its individual instances. In that case, you can write all the Holmes you like, as long as it’s not explictly Cumberbatch’s Holmes (for example). The British Empire gave us Common Law and Sherlock Holmes, and lo and behold they get tangled up.

  5. I love how you approached the question of copyright and remixing through Sherlock Holmes. I learned a lot reading your post.

    One thing I guess I wanted to talk about and get responses on is whether there is a “remix” that isn’t really a remix at all. For example, shouldn’t other publishers or self-publishers be prevented from simply wholesale printing copies of an existing book and selling them without paying the author? What if they change the cover art significantly, keep the first 15 chapters identical to the original, and rewrite the ending (let’s say it’s the final 3 pages). If they keep the author name on the cover the same but add “with a new ending by Josephine Schmo”, is that cool?

    I’m guessing the answer is no, but why?

    1. Janel,

      I bet there’s a certain percentage of the text that one has to be reproducing in order for it to be infringing on this copyright. I have no idea what this is, but I bet our friend Lessig does.

  6. Like apparently everyone else (and as a huge fan of all iterations of Sherlock Holmes ) I really enjoyed this take on remixing.

    I think that this is a great example of when something is SUCH a cultural institution that you almost can’t avoid either the idea or people adapting the idea to their own creative wants and needs. I’m sort of surprised you didn’t discuss fanfiction as a remix in its own right. There’s such a culture around it, and almost no fanbase is immune.

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