For the last few years, we've been covering a long (now complete) saga concerning the status of the copyright on Sherlock Holmes
. A few years ago, we wrote about the odd state
of the copyright according to the Conan Doyle Estate -- which insisted that the character was not in the public domain in the US (even as it is in the public domain in many other countries). That's because, while nearly all of Sir Arthur Conan Doyle's works were published long before 1923, a final set of 10 stories were published after. The Estate erroneously argued that as long as any
part of Sherlock Holmes was under copyright, all of it
was. In 2013, a scholar of Sherlock Holmes sued
the Estate to argue otherwise. And despite the silly fears
of the Estate, both the district court
and the appeals court
rightly explained how copyright law works to the Estate, noting that all of the early works are in the public domain, and the only copyright that may be maintained is in the marginal creative additions in those final 10 works. The appeals court even went so far as to argue that the Estate was abusing antitrust laws
in demanding fees from everyone. And the Supreme Court refused
to review the case.
And thus, Sherlock Holmes is considered to be mostly
in the public domain. One might argue that a US federal court outside
of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes' retirement
. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind
about a decade ago, and that's now been adapted into a film called Mr. Holmes
, being released by Miramax.
First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:
The first fifty of Conan Doyle’s Sherlock Holmes short stories and
novels are in the public domain. But the last ten of his original Sherlock Holmes stories,
published between 1923 and 1927 (the Ten Stories), remain protected by copyright in
the United States. These copyrighted ten stories develop the details of Holmes’s
fictional retirement and change and develop the character of Holmes himself.
And that's where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint
notes, the public domain works mention Sherlock Holmes' retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story "Blanched Soldier":
It is my habit to sit with my back to the window and to
place my visitors in the opposite chair, where the light falls
full upon them. Mr. James M. Dodd seemed somewhat at a
loss how to begin the interview. I did not attempt to help
him, for his silence gave me more time for observation. I
have found it wise to impress clients with a sense of power,
and so I gave him some of my conclusions.
“From South Africa, sir, I perceive.”
“Yes, sir,” he answered, with some surprise.
And contrasts it with the following from Cullin's work:
As was my usual custom, I sat with my back to the window
and invited my visitor into the opposite armchair, where—
from his vantage point—I became obscured by the
brightness of the outside light, and he—from mine—was
illuminated with perfect clarity. Initially, Mr. Keller
appeared uncomfortable in my presence, and he seemed at
a loss for words. I made no effort to ease his discomfort,
but used his awkward silence instead as an opportunity to
observe him more closely. I believe that it is always to my
advantage to give clients a sense of their own vulnerability,
and so, having reached my conclusions regarding his visit, I
was quick to instill such a feeling in him.
“There is a great deal of concern, I see, about your wife.”
“That is correct, sir,” he replied, visibly taken aback.
Certainly a similar setup, but is it infringing
? That's where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover "a character." After all, copyright is supposed to only protect the specific expression, rather than the idea
. That's why it's never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle
different cases differently, allowing something like The Wind Done Gone
(a retelling of Gone With The Wind
from another character's perspective) but not allowing Coming Through the Rye
, an unauthorized sequel to Catcher in the Rye
. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone
was more acceptable as a commentary
on the original, rather than just a new work building off of the original.
However, if we're going to be honest and say that copyright only protects the specific expression, then passages like the one above should not
be protected by copyright. The Cullin version is not
a reproduction of the original. Other elements that the Estate argues Cullin copied are even more tenuous:
This story, “The Adventure of the Lion’s Mane,”
significantly develops the fictional world of Holmes’s later life. In this story Conan
Doyle created original details such as the lonely farmhouse in which Holmes lives on a
ridge overlooking the English Channel, with chalk cliffs visible in the distance and a
path down to the sea.
Along with other copyrighted stories, “Lion’s Mane” also adds important
traits to Holmes’ character. For example, in his later years, living in the countryside
instead of London, Holmes comes to love nature and dedicates himself to studying it.
Other copyrighted stories give Holmes in his later years a personal warmth and the
capacity to express love for the first time.
Cullin took these and many other protected elements of setting, plot, and
character in A Slight Trick of the Mind. Cullin has Holmes living in a lonely farmhouse
on a ridge over the Channel. Chalk cliffs are visible in the distance and a path leads
down to the sea. Holmes’s love of nature and developing ability to express love are
central to Cullin’s story.
Seriously? "Chalk cliffs" in the distance? A path down to the sea? These are not the things copyright is designed to cover.
There are lots of other sketchy aspects to the lawsuit as well. The book came out ten years ago
. The statute of limitations on copyright is supposed to be three years, but there are disagreements over what those three years means -- does it mean you can only get compensated for infringements from the past three years? Or does it mean you can't sue at all after three years have passed?
Separately, there are venue questions, given that the lawsuit was filed in New Mexico... on the basis that Cullin grew up there and studied Sherlock Holmes there. But he doesn't live there any more (and the Estate is in the UK). It seems like careful jurisdiction shopping by the Estate.
That said, given the way these cases normally work out, it won't be at all surprising if the court sides with the Estate. People still have this visceral feeling that "if inspired too directly by this copyrighted work, it must be infringement." That's unfortunate, given how much of human creativity is based on people building off the works of one another.
And... finally, we'd be remiss if we didn't mention that the Estate is also pulling out its other big gun here, arguing trademark infringement
as well, rather than just copyright infringement:
The Estate has developed common law trademark protection for
SHERLOCK HOLMES for the above goods and services—including motion picture
and television series—by virtue of its consistent licensing of its mark. Every major
motion picture and television production in the past thirty years using SHERLOCK
HOLMES has been released in the United States in association with the Estate, from
Lorindy Pictures’ 1981 television movie series Sherlock Holmes, Paramount Pictures’
1985 movie Young Sherlock Holmes, and Granada’s 1989 television series Sherlock
Holmes, to Warner Brothers’ current Sherlock Holmes movies and the BBC’s Sherlock.
Because of its widespread use in connection with Estate-licensed motion pictures and
television series, SHERLOCK HOLMES has tremendous power as a source identifier
of the Estate.
While this might appear to be an even stronger claim, that's not necessarily the case either. The famous Dastar v. Fox
saw the Supreme Court shoot down an attempt to use trademark law to try to lock up a work in the public domain. In that ruling
, the Supreme Court (written by Justice Scalia) noted:
To hold otherwise would be akin to finding that [trademark law] created a species of perpetual patent and copyright, which Congress may not do.
But, this might not be quite the same situation, if the Estate is focused on arguing about the works still under copyright, rather than those in the public domain.
Of course, there's a separate argument to all of this, which is that at the time that the original copyrights were granted for those last ten works, the longest
that anyone could have expected them to last was 56 years, and by any reasonable consideration, all of the Holmes stories should be in the public domain. But, alas, Congress has decided to retroactively extend copyright again and again, and the Supreme Court has decided that's okay.