Raymond Chandler’s legendary private eye, Philip Marlowe, will be back in bookstores next year. Chandler’s estate has authorized a new Marlowe novel from John Banville, alias Benjamin Black. But the real news is not that Banville gets to write the book. It’s that no one else is allowed to write one.

    The copyright laws during Chandler’s lifetime decreed that his first novel, The Big Sleep, would enter the public domain by 1996. When it did the book’s rueful hero, Marlowe, would become public property as well, just like Sherlock Holmes, Huckleberry Finn, or Tarzan. But in 1978, nineteen years after Chandler died, copyright terms were extended to fifty years beyond the creator’s lifetime, keeping Marlowe corporate property until 2010. In 1999 another copyright extension lengthened terms to 75 years after the author’s death, so Marlowe will belong to someone else until at least 2035. If today’s laws had applied to Sherlock Holmes, he would not have become public domain in the United States until 2006. Tarzan would not be public domain until fourteen years from now.

    The new Philip Marlowe mystery takes advantage of the extra quarter-century during which Chandler’s heirs will enjoy artistic control and exclusive rights to profit. I don’t grudge Chandler’s grandchildren a few royalty payments, but he has no grandchildren. Raymond Chandler, like so many of his characters, died lonely. His estate went to his agent after a fight in probate court with Chandler’s secretary. Philip Marlowe is Chandler’s only child. Banville and his publisher will have to pay a cut of the new book’s profits to the Chandler estate, but that money won’t go to anyone Raymond Chandler ever met.

    In practice, the publisher is paying the estate to keep other writers from using the character. Banville will definitely write the best Philip Marlowe novel next year, because he’ll have no competition. Banville is a very reasonable choice for the commission, who will turn in painstakingly crafted work, and I wish him success. But we will never know if he was the best choice. He’s surely felt Chandler’s influence, but so has nearly every mystery writer, and his understanding of Chandler isn’t necessarily truer or more authentic than anyone else’s. A lesser writer than Banville might make a better Chandler.

    There’s no way to predict which writer would use Marlowe best. The results can only be judged once they’re on the page. And the Chandler estate is no more likely to pick the best literary successor than anyone else is. Fifty-three years on, his heirs have no exclusive insight into what made Chandler’s writing sing. They’ve never met him. Out among the many readers Chandler has influenced there may be a writer or writers whose intuitive feel for Chandler’s prose and Marlowe’s character could lead to a better novel than anyone has a right to expect. The best way to find such people, if they exist, is to let them pick themselves. If we ever read another great Philip Marlowe novel, it’s more likely to be a personal labor of love than a commission.

    Two of the reasons given for repeatedly lengthening copyright terms is that private ownership maximizes a work’s economic value and protects its artistic integrity. But it’s not clear that one authorized imitation of Chandler, shielded from competition, creates more value than would a marketplace where several “Chandlers” worked to outdo their competitors. Protection from the market does not always spur creativity. Nor would Sherlock Holmes have been better used if Conan Doyle’s estate had kept veto power into the 21st century.  But Chandler’s books have drifted into that period of limbo when an art work’s proprietors have lost any connection with its original creation but the work is still kept out of most living artists’ hands. Our current laws focus on prolonging that limbo, placing writers’ distant heirs ahead of their creative legacies.

    Fifty years after a writer’s death, the free market can make a better protector of their art than inheritance law. Anyone who reads detective novels knows what trouble inheritances can be. The best hope for a great Philip Marlowe novel is a lot of Philip Marlowe novels, by many hands, until trial, error, dedication, and talent can make him live again. We should let Marlowe back out on the streets. He was always too independent to work for a big firm. And Sherlock Holmes is waiting.