Sherlock Holmes Museum in Playing Card (KS)

[badpete69]

Close to being a deck I guess

https://www.kickstarter.com/projects/376971306/sherlock-holmes-museum-in-playing-card

[bhong]

The artwork and everything looks nice. They feel like art cards or more like a Sherlock version of Magic the Gathering, especially with the way it's set up.

They honestly don't work as playing card that well especially as you'd have to look at the indices to even know what card is what. I know a lot of playing card projects on Kickstarters these days are more focused on artwork, which is great, but most of them are still functional as playing card, which this project isn't.

I'm also curious as to who the printer is especially with a goal that low.

[jwats01]

I wonder how much of this is public domain vs. still copyrighted. I've read that some of the Sherlock Holmes story elements are now public domain.

I agree that the art is nice.

[bhong]

I wonder how much of this is public domain vs. still copyrighted. I've read that some of the Sherlock Holmes story elements are now public domain.

There was a ruling on what is copyrighted still with Sherlock Holmes as a lot of book authors were tired of going through the Sir Conan Doyle estate to get permission, if it would even be granted at all. I believe the ruling is that most of the work before 1920s are in public domain, which is a big majority of it. The other issue is due to regions since copyrights and how long they exist before expiring works differently and in different areas of the world like Peter Pan is still copyrighted in parts of the World, but I believe in the US it's in public domain now.

[maggock]

I wonder how much of this is public domain vs. still copyrighted. I've read that some of the Sherlock Holmes story elements are now public domain.

I agree that the art is nice.

I was just doing some research on that after I saw the deck, and it looks like a few stories are still copyrighted, and more importantly, the Conan Doyle Estate has applied for a trademark on Sherlock Holmes, so it looks like they're aggressively pursuing people who use the Holmes name and associated characters.  It's a shame because the art's really well done, but I wouldn't be surprised to see this project pulled because of a DMCA or something like that.  Maybe the Estate can work something out with this guy and do a proper Sherlock Holmes TCG. 

Some of the links I found:
http://www.economist.com/blogs/prospero/2013/02/public-domain
http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/60503-conan-doyle-estate-says-sherlock-not-free-yet.html
http://www.law360.com/articles/499343/sherlock-copyright-weaker-but-trademarks-still-afoot

[Anthony]

The art work is nice, but it looks to much like a "Card Game" than playing cards, if that makes sense.

[Don Boyer]

OK, everyone...

For works in the US, anything created and published before 1923 is indeed in the public domain, as are some works created and published thereafter.

But the project is based in CANADA, so the United States' Digital Millennium Copyright Act doesn't really cover it.  In fact, even in the US, the DMCA wouldn't work in this case - it criminalizes the circumvention of any digital rights management code placed in a digital media file such as an e-book, a video game or a Blu-ray disc or in the hardware devices used to access the data.  In this case, it doesn't apply to a pack of real-world playing cards.  In the US, the applicable law is the Sonny Bono Copyright Term Extension Act of 1998 - in addtion to being a pop singer in the 1970s, he was a US Congressional Representative for California District 44 and died in office shortly before Congress passed this law, which the Senate named in his honor.  This law had the following effect - text copied from Wikipedia.

Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The [Bono CTE] Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.

With the Conan Doyle estate seeking to register Sherlock Holmes et alia as trademarks, should they succeed, they'd have power to restrict usage in any form.  But it's unknown whether after all this time the request would be approved and registered.  Over the years, there's been countless versions of the Holmes character, with differences in many of the versions.  Trademarks can be claimed if there's been no "dilution" of them.

For example, USPC claimed the Rider Back design as a trademark to prevent counterfeiters from using that card back.  However, the counterfeiters would have a legitimate claim if the company was allowing dilution of the trademark by creating authorized, altered versions of the design, such as certain magician's gaff cards or a marked deck.  It's why USPC Legal ruled there can be no more alterations of things like the Rider Back, the Bee Diamond Back, their jokers and Aces of Spades, etc. coming out of their printing presses.  Now, USPC can't stop someone from copying their non-unique card faces.  It's like claiming a patent for the fork or a copyright for the alphabet - there's a lot of "prior art" indicating that those faces existed in various forms long before USPC was ever created.

It is true that most of the Sherlock Holmes literary works are in the public domain both in the US and the United Kingdom of Britain and Northern Ireland - and since Canada was a former colony, I'm guessing their copyright laws are similar if not the same as in the UK.  The characters that appeared in stories prior to 1923 are also consider public domain, though the characters making first appearances in the works after 1923 are still protected.  However, absolutely none of that will matter if the application for registered trademark status is granted.  Trademarks can be renewed in perpetuity if properly managed by the trademark holder.

As a deck, this doesn't impress me.  The style is so impractical, it's ridiculous.  The art is great, but that's the only thing this project has going for it.  It doesn't help that he doesn't appear to have a solid grasp of English or a proofreader/editor checking out his copy.  If you know you have English language deficiencies, you hire someone who doesn't to aid you.  To muddle through like this creator does shows he's either not serious or doesn't know what he's doing, neither of which inspires confidence.

[maggock]

Things will get very confusing here Don - the artist is in Canada, Conan Doyle Estate is in the UK, and Kickstarter is based in the USA.  I think USA copyright laws might still apply (especially if the artist is using characters from the 1923 stories) because the project is being hosted in the USA, but I'm not certain of that. (and I just said DMCA because I don't know what terminology would apply here... but it's whatever took down that Pokedek!) 

Regardless, I don't think it will matter if the Conan Doyle Estate doesn't have a leg to stand on, they could still pursue litigation - they need to defend the potential trademark and would be taking a pretty safe bet that the artist doesn't have money to deal with a lawsuit.  It's a matter of David vs. Goliath, in this case.   Anyways, like I said, I hope either that doesn't happen or the artist and the Estate can work something out that would suit the art far better, like a TCG or even just collectible art cards.  The art is very nice and I would like to have some form of it.

[Sher143]

Yeah,  I'm a little confused,  too.  The pokedek was based in South Korea if I remember correctly,  but they got a DMCA notification...

[Don Boyer]

Yeah,  I'm a little confused,  too.  The pokedek was based in South Korea if I remember correctly,  but they got a DMCA notification...

...because Kickstarter is located in Brooklyn, NY, USA.  However, are you sure it was a DMCA notification and not a cease-and-desist (C&D) notification?  Because DCMA is part of copyright law but its scope is really that narrow - it deals in digital media only, hence the "D" in DMCA.  C&D is the general-purpose letter that's sent in regards to copyright violations of a general nature, not simply digital media.  Adam Clarkson received a C&D notice in regard to the Bicycle Army Men deck he tried to create, as did the guy who tried creating a Lego-mod deck called "Steampunk Heroes".

[jwats01]

The Pokemon project takedown seems kind of mixed up. They mention there's an IP dispute, and when you click on the link:

https://www.kickstarter.com/dmca/the-pokedek-pokemon-themed-playing-cards-submitted-by-the-pokemo

At the very top, it says DMCA notice, but you actually see the form letter submission, which talks about copyrighted/infringed material. Nothing about digital anything.

I think KS is co-mingling terms.

[Sher143]

The Pokemon project takedown seems kind of mixed up. They mention there's an IP dispute, and when you click on the link:

https://www.kickstarter.com/dmca/the-pokedek-pokemon-themed-playing-cards-submitted-by-the-pokemo

At the very top, it says DMCA notice, but you actually see the form letter submission, which talks about copyrighted/infringed material. Nothing about digital anything.

I think KS is co-mingling terms.

Yeah, that's what I saw. That's why I was confused.

[Don Boyer]

The Pokemon project takedown seems kind of mixed up. They mention there's an IP dispute, and when you click on the link:

https://www.kickstarter.com/dmca/the-pokedek-pokemon-themed-playing-cards-submitted-by-the-pokemo

At the very top, it says DMCA notice, but you actually see the form letter submission, which talks about copyrighted/infringed material. Nothing about digital anything.

I think KS is co-mingling terms.

Yeah, that's what I saw. That's why I was confused.

You're confused because Kickstarter is confused... 

[JacksonRobinson]

OK, everyone...

For works in the US, anything created and published before 1923 is indeed in the public domain, as are some works created and published thereafter.

But the project is based in CANADA, so the United States' Digital Millennium Copyright Act doesn't really cover it.  In fact, even in the US, the DMCA wouldn't work in this case - it criminalizes the circumvention of any digital rights management code placed in a digital media file such as an e-book, a video game or a Blu-ray disc or in the hardware devices used to access the data.  In this case, it doesn't apply to a pack of real-world playing cards.  In the US, the applicable law is the Sonny Bono Copyright Term Extension Act of 1998 - in addtion to being a pop singer in the 1970s, he was a US Congressional Representative for California District 44 and died in office shortly before Congress passed this law, which the Senate named in his honor.  This law had the following effect - text copied from Wikipedia.

Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The [Bono CTE] Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.

With the Conan Doyle estate seeking to register Sherlock Holmes et alia as trademarks, should they succeed, they'd have power to restrict usage in any form.  But it's unknown whether after all this time the request would be approved and registered.  Over the years, there's been countless versions of the Holmes character, with differences in many of the versions.  Trademarks can be claimed if there's been no "dilution" of them.

For example, USPC claimed the Rider Back design as a trademark to prevent counterfeiters from using that card back.  However, the counterfeiters would have a legitimate claim if the company was allowing dilution of the trademark by creating authorized, altered versions of the design, such as certain magician's gaff cards or a marked deck.  It's why USPC Legal ruled there can be no more alterations of things like the Rider Back, the Bee Diamond Back, their jokers and Aces of Spades, etc. coming out of their printing presses.  Now, USPC can't stop someone from copying their non-unique card faces.  It's like claiming a patent for the fork or a copyright for the alphabet - there's a lot of "prior art" indicating that those faces existed in various forms long before USPC was ever created.

It is true that most of the Sherlock Holmes literary works are in the public domain both in the US and the United Kingdom of Britain and Northern Ireland - and since Canada was a former colony, I'm guessing their copyright laws are similar if not the same as in the UK.  The characters that appeared in stories prior to 1923 are also consider public domain, though the characters making first appearances in the works after 1923 are still protected.  However, absolutely none of that will matter if the application for registered trademark status is granted.  Trademarks can be renewed in perpetuity if properly managed by the trademark holder.

As a deck, this doesn't impress me.  The style is so impractical, it's ridiculous.  The art is great, but that's the only thing this project has going for it.  It doesn't help that he doesn't appear to have a solid grasp of English or a proofreader/editor checking out his copy.  If you know you have English language deficiencies, you hire someone who doesn't to aid you.  To muddle through like this creator does shows he's either not serious or doesn't know what he's doing, neither of which inspires confidence.

The recent ruling over the Conan Doyle Works only applies to Copyright material, however the Conan Doyle Estate still holds Trademarks on Characters created before 1923.

The Conan Doyle Estate Registration of the Holmes characters as Trademarks WAS successful.

I know this because I'm very close friends with a gentlemen who recently did some creative work with the Sherlock Holmes characters and spoke at length with lawyers on both the Conan Doyle side and those not on the Conan Doyle Side.

Also the said gentlemen holds the exclusive license for Sherlock Holmes playing cards for the next 5 years...

[bamabenz]

What I state here is not a legal opinion (IANAL), just my personal opinion.

First: I'm a backer and supporter of JR's Sherlock Holmes^SM deck -- I can't wait to get mine!

I'm not impressed by the Sherlock Holmes Museum deck -- just not my style, and I doubt the quality will be there. But what seems to be clear is that all the art is original -- while I think I see Basil Rathbone's chin, I don't think this is a photoshop job, as was done more than once on an infamous set of KS card projects.

I'm deeply disappointed about how UC froze the page discussing the project.
I questioned Mike why he did so, and while I understand that no one wants to get involved in costly lawsuits, this has the flavor of BS and playing card politics.

As far as the trademark status goes, what I found in a trademark search is:
http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:13k1x7.2.14
Key points: 1. It's a service mark, not a trademark. 2. It will be filed for opposition on April 22, 2014. 3. Relevant Dates: FIRST USE: 20131009. FIRST USE IN COMMERCE: 20131009.

As there are 1923 hits for a search of (SHERLOCK HOLMES) there are certainly other relevant hits. I have not looked at each result.

Even if this is upheld, it may well not prevent somebody selling something called "Sherlock Holmes Museum Playing Cards". You can see that somebody has a trademark on the word "Sherlock". Exact combination of words is extremely important, as is the usage context of the words.

I think there is a reason why this is still live on KS. I've been involved in Trademark/Service Marks disputes before. The law here is not simple at all. While first claim is very important, the rights you gain are very limited. And the claim for first use here is pretty sketchy.

Why I care: I deeply believe in our Constitution and the Bill of Rights. Frivolous IP claims are a plague and degrade our rights -- including creative rights. If you read the recent court judgement, and the numerous quotes from lawyers in the media, you may find the consensus is that folks have paid for book/movie rights in the recent past because its easier/cheaper than a court fight. But when the claims are challenged in courts that have not won.

Art is an important form of speech, one that we should all seek to protect. In this case I am defending someone whose artwork I don't really like because there is an important principle involved.

As always, I do not intend to insult anyone involved, nor claim malice. I believe that Mike, Jackson and Chao Yung Huang are all acting with the best of motives. Mike is trying to run a board, Jackson clearly thought he was gaining exclusive rights and Huang is just trying to fund his artistic efforts.

I think it would be best if we continue to discuss the merits of the project (both here and on UC), and not seek to kill the conversation based on disputed IP rights.

/bama

edit: I just realized that since there's now a service mark on SHERLOCK HOLMES it would be proper to add the SM to the first usage in my post.

[Don Boyer]

In an ordinary conversation of the type that occurs here, I don't think it's necessary to include "SM" or whatever.  Would you include it in a spoken conversation between two friends over lunch?  Not unless you were being silly or geeky.

The one best thing I can offer here is if USPC can keep the Rider Back design as a trademark after over 125 years, it's no stretch to think that the Conan Doyle estate could do the same with Sherlock Holmes.  Unlike copyright, trademarks can be renewed in perpetuity as long as the trademark holder continues using it in undiluted form and has the registration renewed on schedule.  The thing that does concern me is the dilution part of that - there's been many varied representations of the character, so you'd think it would be hard to maintain trademark, but according to Jackson, it was.  At that point, Sherlock Holmes could be 200 years old or more - it's still defendable.

[DarkDerp]

Case precedent has not been on the Conan Doyle Estates side. While the Estate has  mucho dinero  for lawyers, I would think the  benefits of taking a deck of playing cards  to court overshadowed by the chance of an unfavorable ruling. Win and the playing cards don't get made, or you get a fee. Lose and the untested trademark is now useless      ----Do not pass go do not collect $200-------- 

[Don Boyer]

Case precedent has not been on the Conan Doyle Estates side. While the Estate has  mucho dinero  for lawyers, I would think the  benefits of taking a deck of playing cards  to court overshadowed by the chance of an unfavorable ruling. Win and the playing cards don't get made, or you get a fee. Lose and the untested trademark is now useless      ----Do not pass go do not collect $200--------

In which case they out-lawyer the defendant, forcing him to come up with cash he doesn't have for legal services and keeping the whole thing tied up in court procedure...

[bamabenz]

Don,

I bet the trademark never gets to court. The registration is bullshit. If anyone cares to dispute it, the USPTO will rescind it.
And I bet Klinger disputes it.

/bama

[Don Boyer]

Don,

I bet the trademark never gets to court. The registration is bullshit. If anyone cares to dispute it, the USPTO will rescind it.
And I bet Klinger disputes it.

/bama

Why would they rescind it?

[bamabenz]

They could rescind a mark if prior art was not disclosed. This may happen if the registration is challenged.
I believe there is a plethora of prior art (usage before the first usage date in the application) out there for the use of Sherlock Holmes in just about every area imaginable. For instance, I have found Sherlock Holmes playing cards from decades ago.

Or, the USPTO (or some court) could find that at the time of registration the term Sherlock Holmes is merely descriptive or generic, and so not worthy of a trade or service mark.

This was not the case with "Bicycle", which (according the the results of my trademark search) USPCC registered in 1905, with declared first use for playing cards in 1885.

I think that this is a case of running a flag up the pole and seeing who will salute it -- as UC did.
My guess is it will be worth somebody's while to dispute it before it takes root, because it easier to stomp it now rather than in court five years down the road.

What reputable companies do if they find someone tarnishing their strongly held trademark is to send the other party a cease and desist letter -- or just call them up. And most of the time the offender just stops. I have been on the receiving end of one of these!

I have seen large companies just ignore similar trademark use, 'cause they don't have a strong case -- even when they had enough legal resources to bury the other guy. I've also had this happen to me.

[Don Boyer]

They could rescind a mark if prior art was not disclosed. This may happen if the registration is challenged.
I believe there is a plethora of prior art (usage before the first usage date in the application) out there for the use of Sherlock Holmes in just about every area imaginable. For instance, I have found Sherlock Holmes playing cards from decades ago.

Or, the USPTO (or some court) could find that at the time of registration the term Sherlock Holmes is merely descriptive or generic, and so not worthy of a trade or service mark.

This was not the case with "Bicycle", which (according the the results of my trademark search) USPCC registered in 1905, with declared first use for playing cards in 1885.

I think that this is a case of running a flag up the pole and seeing who will salute it -- as UC did.
My guess is it will be worth somebody's while to dispute it before it takes root, because it easier to stomp it now rather than in court five years down the road.

What reputable companies do if they find someone tarnishing their strongly held trademark is to send the other party a cease and desist letter -- or just call them up. And most of the time the offender just stops. I have been on the receiving end of one of these!

I have seen large companies just ignore similar trademark use, 'cause they don't have a strong case -- even when they had enough legal resources to bury the other guy. I've also had this happen to me.

Regardless, it's in the estate's court at this point.  We get to sit back and watch. 

[Ashram]

I would like to thank you all for the discussions of my project, especially Badpete69. My discussion thread was being frozen at UC, and I have lost my chances communicating to others about the project. So thank you for introducing my project to this forum.

“Friendship is like peeing on yourself: everyone can see it, but only you get the warm feeling that it brings.”― Robert Bloch

At first I appreciate that you guys have provided me with valuable information on copyright. These details are very helpful. I am from Canada. When I just start this project, I only check the copyright of Sherlock Holmes in Canada. Well, the copyright of Sherlock Holmes expired in 1980 which was 34 years ago. In UK, the copyright expired in year 2000. Even though the copyright is much longer in US, a court ruling says so on Dec. 23, 2013 "In a declarative judgment, judge Ruben Castillo held that for all but a few remaining stories, the “public may use the pre-1923 story elements without seeking a license.”"  I can vouch that all the art work in the poker cards come from pre-1923 story elements.

If you are interested in more details, this is a good article to read about:

Great News: Now Anyone Can Write and Publish a Sherlock Holmes Story
http://www.theatlantic.com/entertainment/archive/2014/01/great-news-now-anyone-can-write-and-publish-a-sherlock-holmes-story/282897/

I am just a little poor artist trying everything to avoid possible litigation from big shark company. Even though the case precedent has not been on the Conan Doyle Estates side, I have already asked my lawyer friend to negotiate about permissions from the Doyle Estate. I know I don’t need the license from Conan Doyle Estate at this moment as the judge rules, but the case is still processing in the courts for appeal. You don't have to worry about Conan Doyle Estate pulling my project off KS, because the negotiation is on the way. Well…it’s like buying insurance policy for my backers.

[Ashram]

I have read many feedback about the project in this thread. I like to say thank you for criticisms and compliments. They are important to the development of my project. Here is my project. I would like to hear from you.

You can visit my project: https://www.kickstarter.com/projects/376971306/sherlock-holmes-museum-in-playing-card

I am a big fan of Holmes and I have a complete set of books of Sherlock Holmes. As a detective fan, I am very familiar with all the characters and plots. It has been a long time for my urge to create some arts about Holmes. I am so excited with this opportunity to pay my highest tribute to Holmes. Well….I mean highest tribute as in my respect (not cash…if you know what I mean). I have been in art profession over 6 years and Holmes is my greatest interest. By combining my profession and interest, it gives birth to the project of Sherlock Holmes Museum in playing card on Kickstarter. I choose poker card as carrier for this art work, because poker card is portable, convenient for storage, and fun to play among friends.

I have heard some criticisms about impractical aspect with small card indices and so on. I think this is a great feedback, because I didn't design this poker card from actual playing perspective. I have already updated the design with two enlarged card indices facing both directions. Please check the new updated design in the end. I didn't create this art work like the regular poker cards consisting of 4 SUITs (diamonds, clubs, hearts, spades). Each of the 54 poker cards is a unique design with no repeats. They are either characters or material described by the original novels. In this way, each card carries the memorial spirit of Sherlock Holmes. (hmm…memorial spirit sounds much better than the easily misleading word, tribute..) I have spent 3 months doing nothing but designing each card. During the art creation, I also read the novels so many times back and forth to make sure I have the accurate depictions on all characters and material.

The playing card will use three layers of 280 gsm blue core paper which feels smooth and is durable. To test the quality of the poker cards, I will provide you with an extra blank card. So you can tear it to verify the material. I am a down-to-earth artist with my art dreams. I hope to actualize my dream on KS, so I didn’t set my goal at a very high price. In order to lower the amount on pledged goal, I have found some printing companies with relatively lower amount of minimum printing order.

Art is very subjective. “There are a thousand hamlets in a thousand people’s eyes” (Shakespeare). Even if you don't admire my art work, you are more than welcome to leave some feedbacks on KS or here. However, somebody with ulterior motives intends to suppress freedom of arts in US. I will never back down to such hegemony.

[Ashram]

Based on the feedback, I started designing a handbook of Sherlock Holmes cases today. This design was also based on some feedback. In the handbook, Dr. Watson will introduce the characters, material and locations of the playing card from the first person perspective in a humorous way. Each chapter will elaborately display every detail including the secret of 7% Cocaine solution, The Vatican Cameos, and the decoding method for dancing man. In addition to 54 images of the playing card, the handbook offers extra illustrations. It will be one of my stretch goals.

https://www.kickstarter.com/projects/376971306/sherlock-holmes-museum-in-playing-card/posts

I have also attached two latest playing cards