Sherlock Holmes and the Case of the Copyrightable Character
This may be Sherlock Holmes’ toughest case to date… but could also be his easiest. Just how much of his character is still copyrightable? How much can the public freely use?
The new litigation brought by the Conan Doyle Estate, which owns the remaining copyright to the Sherlock Holmes stories, poses a novel question for copyright law: How far does copyright extend when a character spans works both in and out of the public domain? In honor of Holmes’ detective spirit, let’s look at this as he would. We will look at the crime, the clues, and try to solve the mystery.
On September 23rd, 2020, Netflix released the film Enola Holmes, a spinoff story centering on the sister of Sherlock Holmes and her own detective adventures.
Taking note of this, the Doyle estate decided to file for copyright and trademark infringement. They are able to do this because ten of the original Sherlock Holmes’ stories, those released after 1923, are still protected by copyright law given that their duration has not yet expired. The remainder of the stories, those released before 1923, have entered the public domain, which is why so many movies and books can freely use the character. However, this raises the question of what exactly is protectable from these new stories? Did the creators of Enola Holmes infringe on the still protected elements of Sherlock Holmes?
In our search for clues, the most helpful tool is a past case from 2014 between Leslie Klinger and the Conan Doyle Estate for a similar issue of copyright infringement over use of the Sherlock Holmes’ character in derivative works.
The court in Klinger v. Conan Doyle Estate ruled that the copyright protection over Sherlock Holmes’ entire character does not extend because of those works not yet in the public domain. The stories released after 1923 are understood by the court as derivative works of the original Sherlock Holmes stories. The court noted in Klinger that copyrights in derivative works are only granted protection for the additions of originality attributed to them.
Therefore, the Klinger case in many ways opened the door for the current litigation regarding Enola Holmes. In his opinion, Judge Posner discusses the new elements added in these later stories, such as Holmes’ love of dogs and Watson’s marriages. He says that these “additional features, being (we may assume) “original” in the generous sense that the word bears in copyright law, are protected by the unexpired copyrights on the late stories.” Therefore, he is heavily implying that if a new Sherlock story was to be released that used these new and original qualities from the stories released after 1923, that would be an infringement on the rights of the estate. This is exactly what the estate is claiming in their new complaint against the creators of Enola Holmes.
So what exactly is at issue here? The estate, in their complaint, is asserting that the film Enola Holmes features protected elements of Holmes’ character from the works not yet in public domain. Specifically, they cite the fact Holmes has more emotional depth, a greater respect for women, and a warmer friendship with his partner, Watson. In their argument, the estate puts emphasis on the fact that the character of Sherlock Holmes was not complete before these final stories. They write that Doyle made a deliberate choice to add these new, more humanizing, traits to Holmes after the loss of his son during World War I.
In deciding this case and comparing the two works, the court will have to exclude comparison of all unprotected elements, namely those stories from before 1923, and only compare those elements that are protected under the copyright of the remaining 10 stories. These elements will only include Sherlock’s newfound respect for women, dogs, and his partner. It seems very unlikely that this will pass the substantial similarity test given how objectively general these character attributes are, and how unlikely it is that an ordinary viewer would find the works substantially similar in these regards.
It is also important to note the potential copyright policy implications of this decision. Granting an infringement on the copyright still held by the Doyle estate could have a profound effect in discouraging creativity of derivative authors. Fear of legal liability based on trivial aspects from later works would certainly prevent many authors from expanding on existing works that still have some elements out of the public domain. This goes against copyright’s policies that seek to encourage further creativity and the building on previous works. Further, a ruling in favor of the Conan Doyle Estate would also encourage authors to continue writing stories in order to keep their works out of the public domain and extend their copyrights. This goes against another goal of copyright, to incentivize the creation of new stories and characters.
Therefore, Sherlock would probably deduce that this case is quite weak and there is likely no infringement to be found. But unlike his other cases, he won’t get to make the final conclusion. So stay tuned!
 Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496, 502 (7th Cir. 2014)