Sherlock Holmes, footloose and copyright-free

[Disclaimer: I’m not a lawyer or an expert on copyright law. If you have legal questions, go talk to a pro.]

You may have heard that the United States copyright on Sherlock Holmes expired with the arrival of the New Year.

You may have also heard something similar ten or so years ago (such as this 2013 news story). Why are we going through this again in 2023?

You may also wonder how a character created in 1887—136 years ago—could have been copyrighted up until a few days back. Did all those recent Sherlock Holmes adaptations (Sherlock, Elementary, Mr. Holmes, Enola Holmes, etc.) pay a license fee to someone? Who was collecting the money?

And did I pay a license fee to publish my Sherlock Holmes book, A Man Named Baskerville?

The short summary is this:

The character of Sherlock Holmes, and most of his stories, have been in the public domain since the late 1990’s. However, Arthur Conan Doyle’s literary estate—which represents a few distant descendants—continued to insist that the character remained in copyright, and so authors and filmmakers kept paying a license fee to produce derivative works. The final batch of Holmes stories entered the public domain in 2023, but it remains to be seen if the estate will cease to claim it holds rights to depictions of him.

And, no, I did not purchase a license to publish my book last year. Here’s why.


Of the books I’ve written, A Man Named Baskerville required the most research. I studied Victorian idioms and writing patterns, the history of the Empire of Brazil, the British peerage, dog breeding and training, and the ecosystem of the Dartmoor bogs. I read and reread (and reread) the source story, The Hound of the Baskervilles. None of this was a chore.

A Man Named Baskerville by Jim Nelson

However, I also spent a frustrating amount of time researching whether I needed to pay a license fee to publish my book. That research drew out to a confounding and depressing study in modern greed.

This is what I learned:

In the United States, the characters of Sherlock Holmes and Dr. Watson have been in the public domain for decades now. The earliest Holmes stories fell out of copyright in 1998, when U.S. legislation declared works published prior to 1923 were automatically in the public domain. That magic year—1923—was “frozen” until 2019, when the public-domain clock began moving forward. Today, the magic public domain cut-off date is 1927.

(This is an important distinction: The characters of Holmes, Watson, Moriarty, etc. were placed in the public domain in 1998, even though some of the later stories remained under copyright. As you’ll see, the Doyle literary estate played up this confusion for their own ends.)

The first Sherlock Holmes stories were published in 1887. The bulk of them were published prior to 1923. You’d think authors and filmmakers have been free for decades now to produce new Sherlock Holmes works. You would be wrong, in a way.

The complication stems from Doyle’s writing history. Although he killed off Holmes in 1893’s “The Final Problem,” he returned to the character in The Hound of the Baskervilles (serialized in 1901–1902) and brought the detective back to life in 1903’s “The Adventure of the Empty House.” Doyle continued producing Holmes stories and novels until 1927—meaning he produced four years’ worth of work that remained copyrighted though the end of 2022.

The Hound of the Baskervilles by Arthur Conan Doyle

Astoundingly, the Doyle literary estate did not stop insisting after 1998 that depictions of Sherlock Holmes required a license. Their logic was that since some of the Sherlock Holmes stories remained copyrighted, the estate still held rights to the character. What’s more, they asserted any depiction of a “rounded” Sherlock Holmes—that is, a Sherlock Holmes with feelings—was also copyrighted. (It’s preposterous, and I won’t go into their reasoning here.)

These specious claims crashed into a wall of common sense thanks to author Leslie S. Klinger suing the estate in 2013. Klinger had previously paid a $5,000 licensing fee to publish his first Sherlock Holmes book. He refused to pay for his second book; the Doyle estate threatened to prevent the book’s distribution. Judge Richard Posner recounted the estate’s threats in his findings:

[The estate] did not mince words … “If you proceed … to bring out [the sequel] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.”

Posner excoriated Doyle’s estate, calling their actions “a form of extortion”:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand.

Posner also tossed out the estate’s attempt to extend their copyright via the last remaining stories, as well as their “Sherlock Holmes with feeling” claim. He said their appeal “bordered on the quixotic.”

This is why, when the suit was settled, news sources in 2013—ten years ago—were printing headlines like “Finally, Sherlock Holmes Is Now in the Public Domain.” Considering Posner’s scathing dressing-down of the estate, you’d think the matter was settled. Again, you would be wrong.

Unabated and shameless, the Doyle literary estate continued to squeeze payments from authors and filmmakers. One victim of this bogus “Sherlock Holmes with feeling” copyright was the 2015 film Mr. Holmes, starring Ian McKellan. Another was the Netflix production of Enola Holmes. The final 2020 settlement details are undisclosed, but I wager Netflix paid the Doyle estate rather than continue with a protracted lawsuit—exactly the shakedown Posner described in his Klinger decision.


With the passing of 2022, articles blossom again with proclamations that the master detective is finally in the public domain—“Now anybody can write a Sherlock Holmes story.” Actually, anybody could have written a Holmes story since 1998—it’s only due to an insufferable and insatiable literary estate that anyone would think otherwise.

Mr. Holmes, starring Ian McKellan
Mr. Holmes movie poster

With the entire Sherlock Holmes corpus now in the public domain, this must close the door on the estate’s claims, right? I’m dubious. The Doyle estate has been told at least twice in the past (in 1998, again in 2013) they do not hold a copyright on the detective. That did not stop them from abusing their namesake’s prestige to squeeze money out of creators.

If you think I’m being cynical, consider that the estate continues, in 2023, to solicit license fees from prospective Holmes authors. A separate agency solicits licenses for Sherlock Holmes memorabilia and merchandise—even though generic depictions of the detective are entirely in the public domain and do not require a license. The literary estate’s web site is polished and professionally-produced. You could not blame a naive author wandering onto it and concluding they must pay a license fee to publish a Sherlock Holmes book.

And if you think I was being paranoid or overly self-important worrying that the Doyle estate would come after me, recall that they were more than happy to take Leslie Klinger—an independent author you may not have heard of before—all the way to the 7th Circuit court of appeals. Remember what they told him: “Do not expect to see [your book] offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those companies routinely to weed out unlicensed uses of Sherlock Holmes.” Would Amazon’s algorithm automatically ban or blacklist my book because it did not carry a license from the Doyle estate?

And if that sounds farfetched, know that several years ago Amazon informed me that they would de-list my first novel because its description contained the phrase “Star Wars.” They didn’t care that my novel centers on the development of the Strategic Defense Initiative (SDI), dubbed “Star Wars” by its critics. I removed the phrase from my description, and the book continues to be sold online. I’m not happy about that, though.

With all that in mind, I decided to risk it. The strength of the Klinger decision convinced me the Doyle estate did not hold the copyright to Sherlock Holmes, that I didn’t need to obtain a license, that I didn’t need to wait until 2023 to publish A Man Named Baskerville—that I was entirely free to take the original Baskerville story and re-shape and re-imagine it from the perspective of the villain himself. That’s exactly what I did.

The double-edged sword

Ally Sheedy as Allison Reynolds

In The Breakfast Club, introverted Allison dares rich-girl Claire to say if she’s a virgin. When Claire demurs, Allison says,

It’s kind of a double-edged sword isn’t it? … If you say you haven’t [had sex], you’re a prude. If you say you have, you’re a slut. It’s a trap.

This is how I feel when the question comes up about the distinction between literary and genre fiction. If you write literary novels, you’re a prude. If you write genre books, you’re a slut.

Is it really that simple? Nothing in this world is so simple. Yet, here are some true-life examples from my own experiences:

Prude

While shopping around my first novel, I got a tip that a prestigious national imprint had a new editor seeking fresh manuscripts. I sent mine along, hopeful but also realistic about my chances.

The rejection slip I received was fairly scathing. The editor claimed my book read of a desperate MFA student who doesn’t understand the “real world.” It was fairly derogatory (and oddly personal, considering this editor and I shared a mutual friend). A simple “thanks, no thanks” would have sufficed, but this editor decided it was my turn in the barrel.

Make no mistake: This hoity-toit imprint reeks of MFA aftershave. It’s not a punk-lit imprint. It’s not an edgy alt-lit imprint. It publishes high-minded literary fiction. The author list is upper-middle- to upper-class, blindingly white, and yes, many of them hold an MFA.

And I hold an MFA too, so perhaps the criticism is spot-on—except I wrote the bulk of novel before I set foot in grad school. I didn’t aim for it to be a literary masterpiece. I wanted to write a page-turner. It’s categorized as literary fiction because it’s not mystery, science-fiction, fantasy, romance, Western, thriller, or YA/New Adult. Write a story about a character and his family, and it’s not merely literary, you’re trying to “be literary.” Who knew?

In my novel, the main character has grown up in a town of physicists who design and perfect weapons of mass destruction—this is the actual childhood I experienced. I thought it would be a good read. (It is a good read.) My character is snarky, sarcastic, crude—and at times, he can be a right asshole. The technical background of the novel is, as they say, ripped from the headlines.

This seems pretty real-world to me. I thought I was writing a funny novel with an unusual setting and situation. This editor took it upon herself to declare I’m actually a Raymond Carver-esque hack penning quiet stories of bourgeois desperation. And that I should stop being that writer.

So, there’s the rejection slip telling me to quit being literary, even though that’s a categorization I never asked for. And it came from a literary publishing house. It’s kind of a double-edged sword, isn’t it?

Slut

After Amazon published my second novel, I began to sense a change in the attitudes of many of my writer friends. At first it was slight, like a shift in air movement when a door in the room is opened. Gradually, though, the emotional tension grew to the point it could not be denied.

I wondered if the problem was one of jealousy. My book had been picked up by a large company, but Amazon was not what you would call an A-list publisher (back then, at least—times have changed). And, they only published my book in digital Kindle format. I had to rely on CreateSpace to offer a paperback edition. The advance money was not huge, and the publicity not so widespread. It all seemed pretty modest to me, and I thought my friends would recognize it as such.

My novel is set in an alternate universe where human reproductive biology is tweaked in a rather significant way. This book is obviously science-fiction. Since the protagonist is a thirteen-year-old girl, it neatly fits into the YA slot as well.

And I’m comfortable with those categorizations. I grew up reading Asimov, Bradbury, Silverberg, and other science-fiction writers of the Golden and Silver Ages who laid so much groundwork for the genre. More importantly, I wanted to write another page-turner, a real unputdownable book. From the Amazon reviews, I think I succeeded.

The tip-off for the issue with my friends was when my wife asked one of them if she’d read my new book. The answer was a murmured, “I would never read a book like that.” This from a person I counted as a friend, and had known for ten years.

Before this, I’d heard her repeat the trope that all genre fiction is formula, as mindless as baking a cake from a box of mix. I always let it go, for the sake of harmony. Now it was being thrown in my face.

The funny thing is, one Amazon editor told me she felt in hindsight my science-fiction YA novel was not a good fit for their imprint. They were more interested in “accessible” genre fiction for their readers, and that my work was—yep—too literary. It’s a trap.

Tease

When Claire refuses to reveal if she’s a virgin, bad-boy Bender suspects she’s a tease:

Sex is your weapon. You said it yourself. You use it to get respect.

Between being a literary author and a genre writer, there’s a third way: The literary-genre writer. These are the teases. They write genre fiction, but make it literary to get respect. And, often they do.

Examples of teases are Haruki Murakami, China Miéville, Cormac McCarthy, and Margaret Atwood. Much of their work is patently genre, but they are received and analyzed with the same awe and respect reserved for literary novelists.

The knee-jerk reaction is to say these writers prove it’s possible to write literary-genre fiction. I don’t think that’s true at all, though. It only proves that authors accepted into the literary realm get to have it both ways: They avoid the stigma of genre fiction while incorporating the high-stake dramatic possibilities genre fiction offers.

Consider another literary-genre writer: Kurt Vonnegut. He wrote science-fiction, but his books are rarely shelved in that section. Hell, he even wrote a diatribe about how bad science-fiction writing is (Eliot Rosewater’s drunken “science-fiction writers couldn’t write for sour apples” screed). Yet, Vonnegut is rarely, if ever, permitted into the same circle as Atwood or McCarthy. There’s something “common” about Vonnegut. Only at the end of his life was he cautiously allowed into the literary world. Some still say he doesn’t belong there.

I remain unconvinced it’s the sophistication of a novel itself that moves it into the upper literary tiers. I can point to plenty of books supposedly in the literary strata that are not exceedingly well-written or insightful. Something other than an airy quality is the deciding factor.

The success of a handful of literary-genre writers doesn’t open doors, it only creates a new double-edged trap. An author who pens a literary-style novel can claim it’s literary. See, he added his book to the “Literary Fiction” section on Amazon! But does it mean he’s a member of the literary world? Not at all. There’s something else holding him back.

The trap

The literary/genre distinction purports to explain every aspect of a story: Its relevance, its significance, its quality, its audience, even the goals of the writer when they sat down to write it. Nothing in this world is so simple.

There’s a smell about the literary/genre divide. It smells like class. Literary is upper-class, and pulpy genre is for the proletariat. This roughly corresponds to the highbrow/lowbrow classifications. We even have a gradation for the striving petty bourgeoisie, middlebrow.

(Even calling a novel “middlebrow” is treated with disdain—a lowbrow attempt to raise a genre book to a higher status. It’s easy to fall down the literary/genre ladder, but difficult to ascend.)

I definitely believe the Marxist notion of class exists, both abroad and here in the United States. What I don’t believe is that a work of fiction is “of a class.” Books are utilized as a marker of class—tools to express one’s status. Distinctions like literary vs. genre communicate to members of each class which books they should be utilizing…I mean, reading.

Amazon says new Kindle replicates experience of holding real book cover in public

This is not the most original thought, but is it really that simple? Nothing in this world is so simple. And I don’t want it to be simple. As with food, the best reading diet is varied, eclectic, and personal.

Note the real damage here. If a writer writes the books he or she wants to write, and puts their heart and soul into making it the highest-quality they can for their readers, all that hard work is instantly deflated by the literary/genre prude/slut highbrow/lowbrow labels.

And if a writer introduces genre conventions into their literary work, they’re a sell-out—a prude tarting it up for cheap attention. And if the author of a genre novel tries to achieve a kind of elegance with their prose and style, they’re overreaching—a slut putting on a church dress. You use it to get respect. We’re punishing people for being ambitious.

I’ve said it elsewhere: People will judge a book by its cover, its publisher, the author’s name, the number of pages, the title, the price, the infernal literary/genre label, its reviews, the number of stars on Amazon—everything but the words between the covers. You know, the stuff that matters.

Audio

Interview with Sarah Meckler of GSMC Book Review

Sarah Meckler of GSMC Book Review recently interviewed me for their podcast. We discussed Bridge Daughter, its sequel Hagar’s Mother, and some of the background behind both books.

One (pleasantly) unexpected curveball: She also asked me what’s up with Edward Teller Dreams of Barbecuing People and how a book with that kind of title might tie in with my other work. What can I say? That’s my sense of humor.

You can listen to the interview here. It’s also on iTunes and YouTube if that’s easier for you:

It was great talking with Sarah—she was a wonderful host and made me feel comfortable from start to finish. I hope you enjoy the interview as well!

Kindle Unlimited Swap Meet

This month me and my fellow Kindle Press authors have organized a Kindle Unlimited Swap Meet. Over twenty authors, over twenty books, all free to read through the Kindle Unlimited program. If you’re not a Kindle Unlimited member, you can sign up for a month-long free trial and read as many books as you want. Even if you don’t want to give KU a go, many of the books in the Swap Meet are discounted this month.

Both Bridge Daughter and Edward Teller Dreams of Barbecuing People are represented in the Swap Meet. I’d also like to point out a couple of other books you might be interested in:

Making Arrangements by Ferris RobinsonAuthor Ferris Robinson and I went through the Kindle Scout program together and were accepted by Kindle Press at about the same time, so I feel a sense of camaraderie with her. Her book Making Arrangements is a wonderful slice-of-life novel filled with memorable characters and unexpected discoveries. I highly recommend it.

Son of Justice by Steven L. HawkAnother Swap Meet book to look out for is Steven L. Hawk’s Son of Justice, a rousing science fiction military adventure about family lines and choosing between the easy road and one less traveled. Hawk is the author of The Peace Warrior trilogy which has received high acclaim as well.

The above books are free to read through Kindle Unlimited, and there’s plenty of deals to be had as well, so check out all the books in the Swap Meet. Some are up to 70% off, and the novels range from fantasy to mystery to contemporary literature.

And be sure to enter the Swap Meet’s $100 Amazon gift card giveaway! You win by helping to spread the word about these great Kindle Unlimited books.

Edward Teller Dreams now on sale for 99¢ at Amazon

Edward Teller Dreams of Barbecuing People by Jim NelsonEdward Teller Dreams of Barbecuing People is now on sale at Amazon for $0.99.

My first published novel centers on Gene Harland, a seventeen year-old high school student growing up in Livermore, California during the Cold War. It’s a novel about Big Science and the nuclear arms race, as well as a story of love and regret.

The sale will be over soon, so if you’re interested in reading it, now’s the time!

Deutschland 83, SDI, and the birth of the modern era

Deutschland 83Tonight a new television series premieres on the Sundance Network, Deutschland 83. My cable package doesn’t include Sundance, so I won’t be able to watch the show in its first run, but so far I like what I’ve read about it. More than that, it’s exciting to read about its premise and development, as much of it reminds me of the impetuses that drove me to write Edward Teller Dreams of Barbecuing People.

The Cold War

Deutschland 83 and Edward Teller Dreams are both Cold War stories featuring individuals caught on the front line of a war that had no front lines. For Deutschland 83, the main character is Martin Rauch, an East German Stasi officer sent to West Germany under cover. For Edward Teller Dreams, teenager Gene Harland is the son of a nuclear physicist tasked to develop the Strategic Defense Initiative (SDI), a pie-in-the-sky system to deter nuclear attack immediately dubbed “Star Wars” by its critics.

It can’t be overstated how permanent the Cold War appeared in 1983. The idea that in six short years the Berlin Wall would fall, taking with it the Soviet Union and much of the Eastern Bloc, was so unthinkable it wasn’t even contemplated by science fiction or Hollywood. They preferred to traffic in darker visions of Soviet domination, films such as Red Dawn, the Russians’ technological superiority in The Hunt for Red October, and 1983’s nuclear-scare TV sensation The Day After. Even MTV got into the act: 1983’s pop hit “99 Luftballons” was about toy balloons starting World War III. Every Child of the 80s remembers Reagan and Chernenko boxing it out in Frankie Goes to Hollywood’s 1983 video for “Two Tribes”.

With each passing year of nuclear stalemate, the saber-rattling rhetoric, and the occasional act of aggression that had to be negotiated down, the Cold War increasingly looked like Orwell’s vision of perpetual war. Of course, that comparison suggests the Cold War was ginned up to control populations rather than being a legitimate stand-in for irreconcilable differences between nations. Personally, I think it was a bit of both.

The birth of the modern era

I was also surprised to read that Deutschland 83 is set in “1983, the birth of the modern era”. Although I chose 1983 for Edward Teller Dreams because it coordinated with the year SDI’s development started, in earlier revisions I dabbled with setting the novel later in time, in 1984 or even 1985. The more I researched 1983, I realized I had to set my novel in that year and none other. (I’ll discuss more about this in a future post.)

Retailing in 1983 for $9,995 ($24,000 in 2015 dollars), the Apple Lisa mysteriously failed to capture the public's imagination.

Retailing in 1983 for $9,995 ($24,000 in 2015 dollars), the Apple Lisa mysteriously failed to capture the public’s imagination.

The developments in 1983 belie the stereotype of the Reagan years as drab, conservative, and conformist. In hindsight, the 1980s were remarkably dynamic, with 1983 perhaps the most so. SDI, Apple’s Lisa (the first personal computer sold with a graphic display and a mouse), the first reports of the AIDS virus and the solidifying of the gay rights movement, even the birth of the Internet on January 1st (the story’s more complicated than that, but roll with it). 1983 was more than an eventful year, it was a prescient year.

(And it was a great time to be alive if you were a reader: The Mists of Avalon, The Robots of Dawn, John Le Carre’s Little Drummer Girl, and Walter Tevis’ The Queen’s Gambit were all published in 1983. The Color Purple was published the year before. William Gibson’s Neuromancer would be published in 1984, following six productive years of groundbreaking science fiction short stories.)

Even in the context of the Cold War, 1983 may have been more consequential than 1962, the year of the Cuban Missile Crisis. In March 1983, Reagan declared the Soviet Union to be an “evil empire” and authorized the development of SDI, “a shield, not a sword”. In August the Soviet Union shot down civilian jetliner Korean Air Flight 007 and ignited an international uproar. All of this, as well as forty years of East vs. West posturing, culminated in the Soviet Union almost launching all-out nuclear war in November when it misread an American troop exercise as first-strike preparations. This series of “isolated” events—microaggressions on the macro scale— were not easily contained via formal diplomatic channels. They were exactly the type of unchecked escalation feared the most during the Cold War.

Writing into near-history

Publishers ask you to list two or three genres to help categorize your novel. While every author feels their novel transcends such pedantic pigeonholing—only partial sarcasm there—I’ve usually selected “historical fiction” for Edward Teller Dreams. It’s a problematic label, however, and not because I’m being snooty.

Edward Teller Dreams of Barbecuing People by Jim NelsonThe term “historical fiction” evokes costume drama and so-called simpler times of clear-cut morality and rigid social standings. Most historical fiction book review web sites will only consider work that’s set at least fifty, seventy-five, even a hundred years in the past. Edward Teller Dreams is set thirty-two years ago (and was less than twenty years in the past when I first started writing it). Even with all I’ve described above, it’s hard to say the world has changed that much. I readily admit there’s more similarities between 1983 and 2015 than there are differences.

But even in writing this one novel I uncovered a number of obstacles with setting a story in near-history. I suspect the writers of Deutschland 83 faced them as well. Show creator Anna Winger says “The great privilege is it’s living history. People are still around and they want to talk about it.” I would say this privilege also nods towards its challenges.

In interviews with authors who pen historical fiction, there’s much discussion about research, authenticity, understanding the period, understanding moires and daily language, and so forth. Some historical fiction authors even go so far to dress in period clothing to better understand their subjects. Me? I threw on a T-shirt and a pair of corduroy jeans and—voila—welcome to exotic California, 1983.

But I’ll go to go out on a limb and say writing near-history is equally challenging to writing “real” historical fiction, and maybe more so. Ask someone what they think of the 1880s and you’ll receive silence, or maybe “I don’t know, why do you ask?” Ask someone what they think of the 1980s and you’ll get an earful. To retell near-history, you’re confronting people’s personal memories as well as the collective memory of our recorded culture.

I don’t think Edward Teller Dreams is a bold stab at righting some historical wrong, or a rewriting of the past to spotlight silenced voices. It doesn’t sound like Deutschland 83 is out to serve historical justice either. I do feel there are many stories of that era—of every era—that, if taken at face-value and told in good faith, will alter our understanding of history as well as our present. To retell stories from the 1880s is fine, but to retell the state of the world of the 1980s is to challenge our perception of the world today.

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Here, Esquilax! reviews Edward Teller Dreams

Edward Teller Dreams of Barbecuing People-10_1410Dustin Heron, author of Paradise Stories and a good friend of mine, posted a rather nice review of Edward Teller Dreams of Barbecuing People. An excerpt:

In one of the books funniest scenes, the two apathetic rebels stage a sit-in protest for the lack of school pride at their High School. But it’s not a throwaway scene: in this novel, every scene illuminates, tells a joke, develops characters, and moves the plot forward, and big changes for Gene and Gwen hinge on that protest and its repercussions. But the broader and more subtle work being done in that scene is what makes Nelson’s book so effective and moving: Gene and Gwen are children of Baby-Boomers who decades before put flowers in their hair and “changed the world” and continued to congratulate themselves for doing so and who all of a sudden became middle management protecting the status quo they now had a vested interest in.

Read the full review, and while you’re at it, check out Dustin’s entire web site, which features stories, essays, improvisations, and more.