Read on Twitter
Today in "Copyright is Really Fucking Wild", the Conan Doyle estate is suing Netflix, PRH and author Nancy Springer because in the Enola Holmes series, Sherlock has feelings and likes dogs.
https://www.theverge.com/platform/amp/2020/6/25/21302942/netflix-enola-holmes-sherlock-arthur-conan-doyle-estate-lawsuit-copyright-infringement?__twitter_impression=true
https://www.theverge.com/platform/amp/2020/6/25/21302942/netflix-enola-holmes-sherlock-arthur-conan-doyle-estate-lawsuit-copyright-infringement?__twitter_impression=true
This might seem trivial, but apparently these character traits are deemed protected by a lawsuit in the early 2010s which said ten short stories published after 1923 were still protected by copyright when the rest of the stories became public domain. https://www.theguardian.com/world/2013/dec/27/sherlock-holmes-copyright-ruling-public-domain
The judge ruled that the character was significantly different in the later stories to be protected seperately from the public domain works. The estate claimed this was simply character development and splitting the older stories from the newer would create a split personality.
This is, weirdly, why you never see Watson's second wife in any adaptations! Certain elements of characters are deemed specific to characters and can be protected by copyright. Some, however, are seen as generic and unprotectable. There has to be a level of "originality".
US Courts (and possibly others) have developed tests which can determine whether a character is unique and developed enough to be considered copyrightable. One, used in 1930 - Nichols v Universal Pictures - was the "Sufficiently Delineated" test.
In this case, the test ruled that the characters could not be protected because they were character archetypes common in a lot of literature. They were not detailed enough or unique enough to warrant protection. The more detail a character has, the more protected they are.
Another test is the "Story Being Told", used in 1954 with Warner Bros v Columbia Broadcast Systems. This required that the character be more than a vehicle through which the story happens, but the story has to be the character. An example is the film "Rocky" - he is the story.
This case, actually, is why Sam Spade as a character turns up in a lot of other media, because the judge deemed he was just an archetype to get the story told, and you could swap him out, so he's not protectable by copyright.
So, back to our errant detective. In 2014, the US courts found that from the very beginning, Sherlock Holmes and Dr Watson were sufficiently delineated from archetypes to be protectable. BUT clearly they had different character traits in the beginning from those they had later.
In fact, the judge found that the later character developments meant that the Holmes and Watson of the last ten stories were, for legal purposes at least, entirely separate characters.
So the question then became about copyrighting characters vs copyrighting their text and this, ladies and gentlemen, is exactly what my MA dissertation was about. If the character is in continual use with new creators, even though the original story is out of copyright...
Is that character still protected? Can you protect a character separately from their source text? You see this sometimes in trademarks, but I think we may see it really come to a head in copyright terms when Mickey Mouse and Winnie the Pooh come of age in the next few years.
I think this is where we'll see the legal precedent on characters as copyrightable assets. From there we could have the question of - can authors and publishers sell or license these rights to have characters appear in published books outside their origin?
And how would that impact on the author's moral rights? Would they have approval on how the character was represented? How would you work out the royalties?
In this instance, the courts have delineated early Holmes as being public domain, because he is a different character from later Holmes, the character in the still-copyrighted stories. What I'm curious about is the argument for keeping the later stories in copyright.
This copyright protection only exists in the USA - in the UK and Canada, Sherlock Holmes is fully public domain, you may do with him what you will. But the US term of copyright is the life of the author plus 70 years. ACD died in 1930, so it should all have been available in 2000
BUT there are different protections for anonymous works, works written for hire, or under a psuedonym. In theory, he could have up to 120 years of copyright on the work. BUT ONLY if it was published after 1978, unless this also applies to copyrights which were renewed in 1978.
If that's the case, and, for argument's sake, we say the last ten stories were written by commission, then that could protect them until 2043. But I can't see anything suggesting that to be the case.
In the original case in 2014, the estate claimed trademark infringement too.
In the original case in 2014, the estate claimed trademark infringement too.
THIS is I think what we're going to see a lot more of when Mickey Mouse and Winnie the Pooh age up - if the characters become trademarked, this can be renewed essentially in perpetuity as long as the characters are still in use. But what elements has the estate trademarked?
And how does trademarking impact public domain copyright law? Does trademarking only protect the character? In which case, the stories should all be in the public domain by now. If it protects the stories, what does this mean for copyright?
According to another article I found, it suggests that the copyright on these protected stories is due to expire between 2020 and 2023. With the stories in question published between 1924 and 1927, this would mean a 95 year term of copyright.
https://screenrant.com/sherlock-holmes-movie-tv-rights-owner-public-domain/
https://screenrant.com/sherlock-holmes-movie-tv-rights-owner-public-domain/
This leads me to believe that the work is being deemed as work-for-hire, and so had the longer term of copyright based not on ACD's death, but on the publication by the commissioning party. So the last few Sherlock Holmes stories were legally ruled as commissioned works.
Anyway copyright is wild and this was a rabbit hole. All of this only applies in the US, by the way, in the same way that the US can do whatever they want to Peter Pan but it's still in copyright in the UK, and that's another fun copyright thing for another day.
Oh, for reference, the cases I talk about I learned about in the article "An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests" by Amanda Schreyer, pub. 2015 in Cybaris International Property Law Review, Vol 6, #1, Spring 2015.
That article was a great starting point for my dissertation and is a really wild read if you're interested in copyright at all.
