No doubt the famous fictional detective would have been only too happy to lend his detective skills to get to the bottom of the copyright infringement case brought by Arthur Conan Doyle’s estate against, amongst others, Netflix and the producers of the recent Netflix film, Enola Holmes. The case was dismissed in December, presumably because the parties reached a settlement, although this hasn’t been confirmed.
For those who haven’t yet worked their way through all of Netflix’s recent releases, ‘Enola Holmes’ is a film based on a book by Nancy Springer, and centres around the teenage sister of the famous detective, as she goes to London in search of her mother who has disappeared.
The film was released in September 2020, but three months before that, the Conan Doyle Estate (CDE) issued legal proceedings in the USA against, amongst other defendants, Nancy Springer, Netflix and the producers of the film, for (i) copyright infringement in relation to the film’s depiction of Sherlock Holmes, and (ii) trade mark infringement in relation to the use of the ‘Holmes’ name in the film’s title.
Copyright in the US
In the UK, copyright expires on the 70th anniversary of the author’s death, meaning that all of Arthur Conan Doyle’s works, and the character Sherlock Holmes, have been in the public domain since 2000. In the US, however, it is possible to apply for a copyright that lasts for 95 years from the date of publication of the work in question.
While the majority of the Sherlock Holmes stories are no longer protected by copyright in the US, there are a few stories, dating from between 1923 and 1927, which are still in copyright (the Copyrighted Stories).
The CDE’s claim
In this case, it was the CDE’s view that, without its permission, no film or book with Holmes as a character can make use of any character traits or details from any stories which are still protected by copyright. In the Copyrighted Stories, the CDE claimed that Sherlock begins to display more emotions, including empathy and respect for women, and to become a generally warmer character; character traits which it claimed were used in the Enola Holmes film, thereby infringing the CDE’s copyright in those stories.
Interestingly, while Nancy Springer was named as a defendant in these proceedings, the CDE did not bring a claim against her when the first Enola Holmes novel was published back in 2006. According to the CDE, it’s decision not to bring a claim in relation to the novel resulted from its “soft spot for writers”. However, “a movie franchise using its material without permission was not appropriate” and therefore legal proceedings were commenced following the release of the film.
The CDE’s claim did not cite any specific offending details from the film. Instead it argued that “as a derivative of the Enola Holmes Mysteries it copies the same elements from Conan Doyle’s Copyrighted Stories that Defendant Springer copied in her book series“, namely, the emotions shown by Sherlock in the Copyrighted Stories which are supposedly not present in the early Sherlock stories that no longer benefit from copyright protection. According to the CDE, the characteristics of Sherlock changed in the Copyrighted Stories, because in World War I, Arthur Conan Doyle lost his eldest son and his brother. So when he returned to writing stories about Sherlock Holmes, “it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.”
The legal proceedings
The film’s legal team responded to the issued proceedings, by filing a motion to dismiss the case. It was their opinion that the CDE was attempting to create a ‘perpetual copyright‘ over a character which, it argued, is clearly in the public domain. The defence team also argued that, while copyright law does protect characters, it does not protect generic concepts such as the warmth, empathy and kindness towards women exhibited by Sherlock in Enola Holmes, as “nobody can own such generic characteristics“. In relation to the trade mark infringement claim, the defence team argued that the claim was merely an attempt by the CDE “to use trademark law to accomplish what copyright law cannot” and that it should fail because the Supreme Court in the US has “expressly rejected the use of trademark law to create a de facto perpetual copyright”. They further submitted that the film’s title ‘Enola Holmes’ has “artistic relevance” to the film itself, and does not “explicitly mislead” the public into thinking the CDE is in any way connected to the film.
This is the second time that the CDE has taken legal action to protect its copyright. In 2015, the CDE sued the makers of the film Mr Holmes, staring the great Sir Ian McKellen as an elderly Sherlock, as well as the writer of the novel the film was based on, on very similar grounds. However, a settlement was reached with Miramax, who distributed the film, and with the publisher of the book before that case reached court. In that case, the CDE argued that not only had the film copied the fact that Holmes becomes more emotional and empathetic as he ages, it also copied details such as the fact that, in his old age, Holmes lives in a lonely farmhouse with a path down to the sea and a view of chalk cliffs, and in addition, the phrasing of two short passages in the novel were said to have very closely resembled passages in the Copyrighted Stories. These additional elements of the claim may have given the CDE a stronger case of copyright infringement than in the claim brought against Netflix, but how the court would have ruled will remain an unknown.
It would have been interesting had this case proceeded to trial, as one of the key elements for the court to consider would have been whether the development of feelings in a fictional character is something that can be protected by copyright. Sadly we won’t get to read the court’s thoughts on that point this time. This may also have been the last time we see a claim for copyright brought by the CDE, as copyright protection in the Copyrighted Stories will only last another few years. After that, Sherlock will be free to investigate his cases, showing whatever character traits he likes.