How Long Are Copyrights Protected? Not So “Elementary, My Dear Watson!”

Copyrights, trademarks, trade secrets and patents are “intellectual property,” as compared with “real property” or real estate –land and buildings – or “personal property” – other physical property.  A company’s intellectual property is often its most valuable asset.  Thus of course,  ensuring maximum protection for that property is a critical concern for such business.

A recent court decision from Chicago reaffirms the sometimes not-so-obvious rules on a copyright’s life span. Author Leslie Klinger, who according to his website is one of the foremost authorities on Sherlock Holmes,  sued the Conan Doyle Estate, Ltd. in February, 2013.  Mr. Klinger asserted that certain elements of two Sherlock Holmes characters – Holmes and Dr. Watson – created by Sir Arthur Conan Doyle were no longer protected by copyright.  If correct, Klinger would of course no longer have to obtain the estate’s permission to utilize those elements in his own published writings.

The judge’s ruling was split.  Elements based on character development, dialogues, settings, and other story aspects in the pre-1923 books and stories are freely usable because they were published before 1923 and thus are now in the public domain.  The judge found that other elements published in 1923 or after were still subject to copyright, thus requiring Klinger or anyone else to obtain a license from the estate (and to pay any required fees) in order to include them in published works.

As long as a creative work is subject to copyright, the author or anyone to whom he/she assigns the copyright – has the exclusive right to reproduce, publish, distribute, publicly display, or create derivative works from that work.  Anyone else wishing to do so must receive permission from the author or other owner of the copyright.  However, while creative works – writings, songs, music, computer code, screenplays, sculptures, paintings, photographs, and more – are born with copyrighted status from the moment of creation, the legally protected term of that copyright does not always start at that moment.

The length of protection depends on where the work was created, as each country has its own law with one or more international treaties thus affecting protections of that work in other nations, as well as when the work is “published.”

For original works created in the U.S. the law has changed over the years and is somewhat complex.  For many works published after January 1, 1978, the copyright lasts for life of the author plus 70 years.  However, if an individual created a work for an employer or under a particular contract that qualifies it as a “work made for hire,” copyright extends for 95 years.  Further, if any work was published prior to 1978, the rule is 95 years from when the work was first published, not the date of creation.  This is the “95 year rule” applied in the Conan Doyle Estate case.

To strengthen the protection for copyrights in the United States over their life span, it is a good idea to register them with the U.S. Copyright Office.   For help in understanding these issues and protecting your copyrights, contact the firm’s “of counsel” attorney, Helena Kobrin.