The Adventure of the Shrinking Public Domain
ROSENBLATT_FINAL (DO NOT DELETE) 2/12/2015 1:10 PM THE ADVENTURE OF THE SHRINKING PUBLIC DOMAIN ELIZABETH L. ROSENBLATT* Several scholars have explored the boundaries of intellectual property protection for literary characters. Using as a case study the history of intellectual property treatment of Arthur Conan Doyle’s fictional character Sherlock Holmes, this Article builds on that scholarship, with special attention to characters that appear in multiple works over time, and to the influences of formal and informal law on the entry of literary characters into the public domain. While copyright protects works of authorship only for a limited time, copyright holders have sought to slow the entry of characters into the public domain, relying on trademark law, risk aversion, uncertainty aversion, legal ambiguity, and other formal and informal mechanisms to control the use of such characters long after copyright protection has arguably expired. This raises questions regarding the true boundaries of the public domain and the effects of non-copyright influences in restricting cultural expression. This Article addresses these questions and suggests an examination and reinterpretation of current copyright and trademark doctrine to protect the public domain from formal and informal encroachment. * Associate Professor and Director, Center for Intellectual Property Law, Whittier Law School. The author is Legal Chair of the Organization for Transformative Works, a lifelong Sherlock Holmes enthusiast, and a pro bono consultant on behalf of Leslie Klinger in litigation discussed in this Article. I would like to thank Leslie Klinger, Jonathan Kirsch, Hayley Hughes, Hon. Andrew Peck, and Albert and Julia Rosenblatt for their contributions to the historical research contained in this Article.
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