“We have become archetypes,” laments Holmes to Watson, “we were created and published before the year 1923, which places us and many of our adventures into the realm of public domain.”

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“Blast it!” Holmes hurled the book across the room. It landed with a dull thud next to the coal scuttle. “I succumb to despair when I ponder the state of contemporary literature, Watson.”
 
I was documenting the latest Holmes adventure for Strand Magazine in my moleskin notebook, perched in my usual lair in the basket chair with writing arm. I carefully placed the cap on the pen, closed the journal, and considered the great detective with a self-satisfied smile. “I warned you that it was a bad book, Holmes.”
 
“Oh, it is far from a bad book, Watson. In point of fact it might be considered a very fine novel, conveyed by a creator endowed with an undeniable passion and prowess for wordplay and clever subversions. As a competent cryptanalyst, fairly familiar with all forms of secret writing, there’s more than meets the proverbial eye lurking beneath the murky surfaces of this book, my friend. And don’t forget that I am myself the author of a trifling monograph upon the subject, in which I analyze one hundred and sixty different ciphers.”
 
“Yes, Holmes,” I added dryly. “I wrote about it in The Adventure of the Dancing Men, if you will recall. The magazine still owes me payment for that submission.”
 
Holmes opened the violin case on his writing desk. “But surreal speculative fiction,” he continued, “holds precious little currency in the vacuous universe of modern publishing, dominated as it is with overheated pornographic tripe disguised as detective thrillers – no offense to your own fine skills in that genre, Watson – and cheap paperback morality tales written for monkeys with the cranial capacity of cantaloupes.”
 
“I dare say, Holmes—”
 
Holmes opened the violin case and extracted his fiddle, tucked the instrument firmly under his chin, and began improvising a nervous melody.
 
“Do you mean to tell me,” I continued, “that you found credibility in all this twaddle about the shipwreck of the Ardent Sodomite in Land’s End, admittedly the veritable anus of Great Britain’s fading shipbuilding industry, and the resulting spread of narcolepsy through the countryside?”

“There’s really nothing convenient about narcolepsy,” Holmes yawned. “And you a medical doctor, Watson.”

I pushed the writing arm aside and retrieved the paperback from the dark corner near the coal scuttle. The lurid little novel was titled The Shanghai Gesture, and the author was an American novelist and journalist named Gary Indiana (nee Gary Hoisington). Holmes had often spoken highly of Indiana’s non-fiction narrative Three Month Fever: The Andrew Cunanan Story as “one of the most insightful glimpses into the mind of a sociopathic killer ever written in the English language, or Balinese, for that matter … the chap certainly gave Capote’s In Cold Blood a run for its monster-under-the-bed money.”

“What about some of the preposterous character names in the novel, Holmes?”

The plaintive sigh of the violin continued as I leafed madly through the book. “Here!” I cried. “Erna Kuntz, Cho Fat Dong, Schnitzelbrotten the Hun, and Thalidomodo, described herein as ‘a bow-legged, Umbrian dwarf, whose head followed the contour of a Bartlett pear, his torso that of a Bose stereo speaker.’ Rubbish!”

Suddenly the music stopped. I turned around apprehensively. Holmes had put down his violin and was crossing to the sideboard. He opened my medical bag, removed an ampule of morphine, and started toward his bedroom.

“Holmes—-”

Enter Fu Manchu
I crossed to the open door. Inside the bedroom, Holmes had placed the bottle of morphine on the washstand, and was rolling up his left sleeve to reveal his gaunt, bony forearm.

“Good God, man, where is your self-control?”

“Right here in this little bottle, Watson.”

From a drawer he removed a morocco case, opened it, and took out a hypodermic syringe.

“Aren’t you ashamed of yourself?”

“Thoroughly disgusted, but this will cure all maladies of the body and mind.”

Holmes removed the cap from the bottle of morphine. “Back to your question, Watson: What’s in a name? Erna Kuntz is certainly more memorable to a reader than, say, Jack White, that’s a writers trick as old as the Rosetta Stone.” He sucked the seven percent solution into the hypodermic (which I had customarily diluted to five percent), and began searching about for a high vein on his arm.

“And as far as Thalidomodo is concerned, I beg you, my good man, to consider what Mr. Indiana is articulating about mass genetic deformations created by evil geniuses in government sanctioned medical research labs all over the planet; surely science and the medical arts owe us some explanation for the bouts of mental narcolepsy that have afflicted so many for so long. We are a civilization of cretins, Watson, mindless sheep who make the worker drones in Orwell’s 1984 look like Greenpeace activists.”

Holmes found a vein suitable for his purpose and slid the needle in. Complete relaxation spread over him in an instant. Holmes returned the syringe to its hiding place in the morocco case. His head sunk upon his breast, and he looked from my point of view like a strange, lank bird, with dull gray plumage and a black top-knot.

“Do continue, Watson, the conversation is stimulating my dull gray matter.”

I took a seat on the plush green sofa across from the bed. “I’m surprised, Holmes, that a detective as great as yourself fails to express alarm at the outright thievery in this narrative, this … this Shanghai Gesture.”

“Thievery?” Holmes raised his head and an eyebrow. “I witnessed nothing but originality.”

“Fu Manchu as the villain?” I hissed. “Sax Rohmer created that fiendish yellow scourge in 1912! And what of the protagonists, Inspector Weymouth Nargil Smith and Dr. Obregon Petrie? Didn’t they remind you of a certain consulting detective and his assistant?”

Holmes laid his head back on a Persian pillow and stretched his long legs out on the bed.

“We – you and I, Watson – have become archetypes; furthermore, we were created and published before the year 1923, which places us and many of our adventures into the realm of public domain; the same legal instrument applies to Rohmer’s characters, created in 1912, as you noted. There is nothing new under the sun, Watson, everything is a version of something else; the key issues here are intertextuality and Fair Use.”

Holmes rose to his feet so quickly that I feared he would collapse from a sudden rush of blood to the head. “Even if Rohmer’s Fu Manchu character had not fallen into public domain, the author would have been protected by Fair Use laws as parody, Watson; commenting on or criticizing another work by appropriating elements of the original is protected by law under most circumstances.”

Holmes sauntered to the window and threw open the shades while humming the first few bars of the theme from the flicker Gone with the Wind (an overwrought melodrama, if you ask me).

“Consider the curious 2001 case of Suntrust versus Houghton Mifflin Publishing,” Holmes said. “A young author named Alice Randall wrote a parody of Margaret Mitchell’s novel Gone with the Wind told from a slave’s point of view. Miss Randall’s novel, The Wind Done Gone, alluded to copyrighted scenes and characters in Miss Mitchell’s novel, yet a Court of Appeals held that Randall’s work fell into Fair Use because her work was a critical and parodic rejoinder to Gone with the Wind, a deconstruction of the romantic depictions of slavery and the antebellum South.

The court held that it was hard to imagine how Randall could have criticized Gone with the Wind without depending heavily upon copyrighted elements of that book. Elements are the key, Watson; courts have upheld Fair Use when short excerpts from previously published materials are used in new and transformative ways. That would include, naturally, characters like you and I and Rohmer’s dread Yellow Peril, unless, of course …”

“Unless what?”

Tagged as: bound by law | derek barker | gary indiana | the shanghai gesture