Posted on November 12, 2020
Authored by Sarah Sanchez*
Can emotions be copyrighted? The famous Sherlock Holmes would have never thought he would be involved in such a mystery. As it turns out, Arthur Conan Doyle’s family, the family of the creator of Sherlock Holmes, is making him the center of it all. Well, not Holmes specifically – his emotions.
The Arthur Conan Doyle Estate has brought a claim against Nancy Springer, Penguin Random House LLC, Legendary Pictures Productions, LLC, Netflix, Inc., PCMA Management and Productions LLC, EH Productions UK Ltd., Jack Thorne, and Harry Bradbeer; all involved in one of Netflix’s newest releases, Enola Holmes, for the unauthorized use of Conan Doyle’s copyrighted Sherlock Holmes stories. On the face of it, this seems to be a typical case of copyright infringement. But in the words of Sherlock Holmes “it is a capital mistake to theorize before one has data”.
Doyle’s Literary Works
Conan Doyle brought life to the character of Sherlock Holmes through his sixty literary works between 1887 and 1927. Any work published prior to 1978 received copyright protection for 95 years upon its creation, therefore, any literary work created by Doyle before 1925 is now in the public domain. However, the 17 U.S. Code Title on Copyright (“Copyright Law”) allows for an infringement claim within the preceding three years, thus allowing for claims for works created by Doyle after 1922. Although the first fifty literary works now belong to the public domain and, as such, can be used without permission, the remaining ten (“Copyrighted Stories”) are still under copyright protection in the United States.
As the plaintiff has put it, not only is Sherlock Holmes known for his great knowledge, attention to detail, and ability to solve mysteries, but another equally important characteristic attributed to him is his lack of emotion towards others. This is, at least, the Holmes that was portrayed in the first fifty stories. It was after World War I, when Conan Doyle lost his eldest son and brother, that he decided that he needed to add the human trait to the atypical character. He felt the need to develop his character to form connections and show empathy towards others. This clear shift in personality can be seen in the Copyrighted Stories, which leads us to the claims at hand.
In a judgment from 2014, the estate filed for claims regarding the use of the Sherlock Holmes character. More specifically, claiming whether the copyright protection for derivative works involving the same character would extend to those derivative works. The Seventh Circuit Court ruled that once the time has expired regarding the first original work, and is in the public domain, the derivative works involving the same character also fall in the public domain. However, this has not stopped the estate from litigating a second time concerning similar subject matters.
It is a settled position that an author may use their work to create derivative works. It is also known that works that are in the public domain do not require authorization for its use. Therefore, Doyle estate’s claim is not based on either of these factors. The estate’s subject matter, thus, entails the ten remaining Copyrighted Stories, which that are still copyrighted and, more specifically, the change in personality traits throughout the Sixty Stories written by Doyle. Following the line of judgement of the Seventh Circuit Court, if the author creates derivative works with the same character throughout the works, and the original story is in the public domain now, so would be stories involving those characters in those derivative works.
Copyright in the New Holmes
The writer of the Enola Holmes series, Defendant Springer, used Sherlock Holmes, Dr. Watson, and others, as well as the setting and plot, from the public domain and Copyrighted Stories, and created a new character, Holmes’ sister, Enola. The plaintiff claims that the most extensive infringement was the use of Conan Doyle’s transformation in Sherlock Holmes’ character. Springer placed Enola Holmes at the heart of the story. This is not infringement, as she is a fictional character inspired by stories that are in the public domain. But, Sherlock shows off his unemotional and coldhearted side towards her at the beginning, only to evolve into a warm and kind person for the rest of the story. This, the plaintiff claims, is the cause of action: the Copyright Stories are the only ones that portray such a shift in personality, and therefore, there is clear infringement. The question is if such a claim can be upheld.
As the Copyright Law defines it, a work may be copyrightable if it is considered an “original work(s) of authorship fixed in a tangible medium of expression”. Of course, amongst other things, this includes literary works. However, what the Copyright Law does not protect are an author’s creative ideas. More specifically, Section 102 (b) of the Copyright Law dictates that protection shall not be granted to an idea, or concept, “regardless of the form in which it is described, explained, illustrated, or embodied in such a work”. This leads us to Netflix’s argument that how Sherlock Holmes’ character was developed and portrayed in the Copyrighted Stories was just an idea. In fact, Netflix is claiming that the use of such characteristics is too general to be protected. As stated earlier, derivative works of an original work in the public domain, shall also be in the public domain. Netflix is asserting that because the shift in the personality of Holmes’ character is too generic, it should be attributed to the derivative works in the public domain, thus it cannot be copyrightable if the character expressing those characteristics is already in the public domain.
Although Copyright Law does not explicitly mention the possibility of having fictional characters as subject matter of copyright, because they would be protected within the context of the work in which they appeared, the courts throughout the years have evolved various tests to determine whether the character in a particular literary work can be copyright protected. For example, the “character delineation” test, created in Nichols v. Universal Pictures Corporation, based on the idea that the more developed a character is, the more it embodies protectable expression. This approach requires that the character possesses physical and conceptual attributes; that it is identified as the same character in multiple scenarios; and that it shows unique elements of expression that it is distinctive. This may be a sign of relief for the plaintiff.
The Seventh Circuit, in 2014, remarked the rather derisory demands on the part of the estate for licensing over almost – if not yet – expired stories. Now, six years later and hit with a lawsuit, Netflix and others are stating that it is an attempt to extort.
An interesting addition to this lawsuit, as a second count, is the infringement of trademark. The trademark claim is based on the notion that using Sherlock Holmes, in the way that Enola Holmes does, creates a notable confusion in the minds of the people. However, this seems highly unlikely, as this claim should have been brought against Springer upon the release of Enola Holmes novels, almost fifteen years ago.
All in all, it seems more like a witch hunt on the estate’s part to squeeze out and exploit what is left of Doyle’s copyright protected stories, rather than an actual case of copyright infringement. Most of the writers that wish to use Doyle’s characters would already agree it is part of the public domain, and that the emotions of a character should not be subject to copyright infringement.
The case is estimated to continue through the end of 2021 into 2022.
Sarah Sanchez is fifth-year student at IE University in Spain, pursuing her Dual Degree in Business Administration and Law. She shows great passion for Intellectual Property Law and Competition Law, and is one of the IntellecTech Law Student Ambassadors
 17 U.S.C. § 507(b).
 Jessica L. Malekos Smith Sherlock Holmes and the Case of Contested Copyright 15(2) Chicago-Kent Journal of Intellectual Property 538 (2006).
 U.S. Code Title 17 §102.
 U.S. Code Title 17 §102 (b).