The Adventure of the Shrinking Public Domain

70 Pages Posted: 7 Sep 2013 Last revised: 24 Mar 2015

Elizabeth Rosenblatt

Whittier Law School

Date Written: September 5, 2013

Abstract

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.

Keywords: copyright, trademark, characters, rights accretion

Suggested Citation

Rosenblatt, Elizabeth, The Adventure of the Shrinking Public Domain (September 5, 2013). University of Colorado Law Review, Vol. 86, 2015. Available at SSRN: https://ssrn.com/abstract=2321343

Elizabeth Rosenblatt (Contact Author)

Whittier Law School ( email )

3333 Harbor Blvd.
Costa Mesa, CA 92626
United States

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