Estate Of Sir Arthur Conan Doyle Alleges Copyright Infringement Over Sherlock's Emotional Awakening
from the i'm-gonna-cry dept
Let us do a little deductive reasoning, shall we? Copyright law has a term length. While that term length has been extended to the point of near-bastardization, that copyright exists on a term at all leads any investigator to conclude that the makers of that law intended for copyright protections on a given work to come to an end. If distinct characters and settings are offered copyright protections, as they are, then it reasons that those, too, were intended to have those protections end after a prescribed period of time. And if Sherlock Holmes is a literary character, an assertion that cannot be doubted, then it stands to reason that the law as written intended for the copyright protections covering his character were also to end after a period of time.
Therefore, all you Watson-esque readers witnessing my astounding logic, when the Estate of Sir Arthur Conan Doyle suggested back in 2013 in a lawsuit that the clock didn't start running as to when a character would enter the public domain until that character had ceased to be developed, the Estate's assertion clearly and undoubtedly runs afoul of the intention of those that crafted copyright law, since an author could simply forever-develop a character, and have him or her never enter the public domain! It's elementary!
But not to the Conan Doyle Estate, apparently, which has sued Netflix over its forthcoming movie about Sherlock's sister, entitled Enola Holmes. In the suit itself, the estate points out in the previous court ruling that, while most of the Sherlock stories and characters are in the public domain, the remaining ten are not. Which is true! But the estate also argues that the Sherlock character is different in those last ten stories because he... wait for it... is more emotional. And, therefore, since the Sherlock character in Enola Holmes is also emotional... copyright infringement!
"After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened," states the complaint. "In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, 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."
And so Sherlock "became warmer," continues the complaint, setting up the question of whether the development of feelings is something that can be protected by copyright and whether the alleged depiction of Sherlock in Enola Holmes is somehow derivative.
Imagine for a moment if this argument were allowed to win the day in court. Suddenly any author who managed to develop the characters in any series of novels would get never ending copyright on those characters. Luke Skywalker is suddenly a dick in Episode 8? New copyright term on his character. Harry Potter goes through puberty and gets romantic with his best friends little sister? Well, first, come on man, but also... new copyright term on his character!
That isn't how any of this is supposed to work, of course. Again, it's quite obvious that the framers limited copyright to a term for a reason, and that reason was that works and characters that are protected by copyright are supposed to eventually end up in the public domain. Playing these games as to when a character that is otherwise in that public domain got some characteristic to end run around the term and still get copyright protection doesn't change that.
If the court has any sense, this suit should find the garbage pail with the quickness.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: arthur conan doyle, conan doyle estate, copyright, emotional growth, enola holmes, public domain, sherlock holmes
Companies: netflix
Reader Comments
Subscribe: RSS
View by: Time | Thread
And how do they expect, in the middle of a plague the likes of which no living person has ever experienced, to get a judge and jury to endanger their health and hear this asinine case? Copyright is not only getting weaker by the day but given our current predicament, it's also unenforceable.
[ link to this | view in chronology ]
Re:
Simple, just ask a corrupt US court to give them an expansion of copyright. In all likely hood given the pandemic they'd be very receptive to the notion just because of everything else going on having higher priority.
[ link to this | view in chronology ]
Re: Re:
But courts would represent a social gathering of plaintiff, defendant, jury, and audience at a time when those gatherings would be a spreader event. People should be able to celebrate Holmes and Watson worldwide without fear of being arrested, dragged to trial, and consequently getting Covid-19 as a result of their court-mandated trial.
[ link to this | view in chronology ]
Re: Re: Re:
You expect the justice system to just shut down? People don't really get to choose whether they appear on a jury, and I don't expect courts to say "ordinarily, we'd take stupid cases like this (and make people take unpaid time off work for jury duty) to make some quick cash, but we're temporarily rejecting baseless claims". Rather, trials will likely be delayed.
[ link to this | view in chronology ]
Re: Re: Re: Re:
I wasn't expecting the justice system to shut down with the pandemic, but I would have thought that only serious violent crimes such as murder, armed robbery, and assault would be on the docket, especially if a public trial would be a spreader event. I know the trials will be delayed, but it's still meaningless. Are you going to issue out a warrant, then call up witnesses for both prosecution and defense, and if the defendant is guilty, send them to prison over something like this?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
There's a long road between initial filing and trial. As I suggest below, there's also an excellent chance this case will get thrown out long before witnesses or a jury are needed.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Yes, and it is to stop the publication of a book or the public display of an image or the recital of a song, which wouldn't be property in the strictest sense of the word. Sherlock Holmes will continue to exist in the world's imaginations whether or not his heirs own the right to stop people from writing additional stories on him or not. In essence, the court should realize that what's really at stake is whether or not free expression should be abridged because the third or fourth generation of a famous author would prefer to censor these works a century later.
[ link to this | view in chronology ]
Re:
At the initial stages, it is just a judge considering the papers. Maybe oral arguments by the attorneys, but particularly in Federal the judges can rule on the paper. If not, then there are hearings by phone.
The case may be tried to a jury eventually, but only after it gets past the inevitable motion practice and discovery. If it does make it to a trial docket, it will run behind the criminal cases.
Civil jury trials are unlikely to resume in this state any time in the next few months. Other states' milage may vary. However, things may speed up and backlogs clear during the months of pre-trial activity.
One way the backlog can clear is that state's attorneys can offer plea deals to those languishing in jail awaiting trial. Courts have suspended (without evident constitutional authority) the right to speedy trial, so folks could be sitting in there for countless months awaiting trial, with no remedy and no end in sight. When the state's atty offers time served, it can look like a good deal compared to indefinite imprisonment.
[ link to this | view in chronology ]
'Look, he clearly wore his hat at a 17.5 degree angle...'
It's amazing the 'creativity' that copyright can inadvertently cause, as an entire estate tries desperately to come up with increasingly laughable ways to demand money from those that actually create something worthwhile, and all so they can avoid having to get real jobs that would require them to do some gorram work for once.
It would be downright hilarious to watch them scramble around for loose change like this if they weren't abusing the law in an attempt to maintain a steady stream of unearned money, wasting their target's time and money and risking setting bad precedent in the process, but hopefully they will once again get slapped down and told that no, that's not how the law works.
[ link to this | view in chronology ]
Re: 'Look, he clearly wore his hat at a 17.5 degree angle...'
"...and all so they can avoid having to get real jobs that would require them to do some gorram work for once."
That was always the intended goal of Copyright law though. You can't blame them for clinging to the original spirit of the law lobbied into existence by a shameless guild of grifters who'd made it their core business to receive money for nothing.
Although I guess the guild of stationers might have been a bit miffed that the actual author's estate rather than a publisher would become the beneficiary of that law.
"...but hopefully they will once again get slapped down and told that no, that's not how the law works."
...or, because in the end copyright relies on extremely subjective judgments as to what exactly constitutes an "original work", they get a copyright maximalist judge and win, after which the real can of worms opens.
[ link to this | view in chronology ]
A little what?
[ link to this | view in chronology ]
Re:
God damn it....
[ link to this | view in chronology ]
By their logic, I am free to write about Spock Holmes and his companion Dr. Dalek.
[ link to this | view in chronology ]
JFC this is almost as amazing as all of the "remastered" albums the music industry is pumping out to try and extend those copyrights.
[ link to this | view in chronology ]
The Plaintiffs also seem to have forgotten that four of the stories (The ones published in 1923 in 1924) have also fallen into the public domain. So, there are only six stories that are still protected by copyright, not 10
[ link to this | view in chronology ]
Re:
You're making them sound like greedy, money-grubbing copyfraudsters, which they absolutely are.
[ link to this | view in chronology ]
Re:
Also, I checked on Wikipedia, and the sources there tend to confirm what you say.
[ link to this | view in chronology ]
Re:
The complaint contains this line: "For those of the stories whose copyright terms have ended, this action is brought within the three-year limitations period for infringement."
So the claim is there are 10 works (stories) that were infringed when they were under copyright. That copyright has since expired on 4 works doesn't matter so long as the alleged infringement on those works took place when the copyright was active and the statute of limitations period hasn't run out.
I didn't see the dates the Enola Holmes books were written, but it could have been before the copyright expired.
I'm not sure how the Netflix development would infringe on the expired copyrights though- if the script development or filming occurred before the copyrights expired, that arguably could infringe the copyright, but that's quite a different case than saying the final product (the fully produced show) infringes.
[ link to this | view in chronology ]
10+ years ago
According to the complaint, the books were written in 2006-2010. That would seem to be outside the statute of limitations for bringing a claim.
[ link to this | view in chronology ]
Re: 10+ years ago
There is a circuit split on when the three year clock starts ticking: at the moment of infringement ("injury rule") or at the moment of discovery (or should have discovered) ("discovery rule").
New Mexico (current venue) is in the 10th circuit, which follows the discovery rule. See Diversey v. Schmidly So the date of publication isn't controlling.
The complaint does refer to the copyright infringement by the Enola Holmes books (paragraph 58), in addition to other works. So perhaps they'll claim that they only recently discovered the book series?
Or the estate just being overly broad trying to implicate the film. The film is a derivative work of the books, so if the books were infringing, the film almost certainly would be too; theoretically the film could avoid reproducing any infringing elements in the books and only be based on the public domain elements, but probably can't do that as a practical matter.
[ link to this | view in chronology ]
Re: Re: 10+ years ago
Good point -- though it wasn't really briefed. If they had mentioned that they only just discovered the books (and why), it might be more compelling; otherwise, it just seems like they have been poor stewards of their copyright.
And you've now given some hint of why this was filed in New Mexico.
[ link to this | view in chronology ]
Timothy, your arguments are very Mickey Mouse.
[ link to this | view in chronology ]
Re:
Yep. By my calculations, an amicus brief from Di$ney is due in a few days. They want to keep Micky Mouse immortal under copyright.
[ link to this | view in chronology ]
Re: Re:
"They want to keep Micky Mouse immortal under copyright."
The word you're looking for is "preserved". Stuffed in a jar of formaline and placed forever after in the disney vault. If you keep paying them in perpetuity on Disney+ you get to observe the corpse.
[ link to this | view in chronology ]
They're all public domain in the country where the stories were written, set and published.
[ link to this | view in chronology ]
Re:
Well no wonder he hasn't written anything in years, with everything in the public domain he has absolutely no incentive to do so, as why would anyone pay to read newer stories when they could get the older ones for free!
[ link to this | view in chronology ]
The devious side of me ...
... would kind of like to see this trend of copyright protecting ideas instead of sections of printed text go further.
Maybe protect the idea of expressing emotion with words. Maybe specifically positive emotions, strong positive ones like love.
And then have the copyright holder of "describing the concept of love with words" sue every rights holder on love stories, every publisher, every book store and every author for infringement. For the next 100 years.
Definitely not a good idea. Also a likely scenario to happen if the current expansion of copyright continues.
And very likely fun to watch the copyright industry eat itself ...
[ link to this | view in chronology ]
There are parallels between the "rolling character copyright" concept here and the "rolling drug patents" - dosage changes, usage changes, meaningless tweaks to the formula, etc.
[ link to this | view in chronology ]
Estate Of Sir Arthur Conan Doyle...
Ticks. Fat. Bloated. Ticks.
[ link to this | view in chronology ]
Venue shopping?
Why TF was this filed in New Mexico? The author of the original novels lives in Florida, the companies are incorporated or based in Delaware, New York, or California, the film production company is in Georgia, and a couple of other defendants are British. I expect it to get tossed on venue alone. The only people in New Mexico are the lawyers.
And then, on top of it all, as others have pointed out, the film itself could be argued to depend only on those stories that have (now) fallen out of copyright. The original novels could be another story, but given that they were published from 2006-2010, it would seem there's a statute of limitations issue. They're playing some kind of silly statutory limitation handwave to try to artificially add three years to the copyright term to rope in the four 1923-24 stories.
That's before you even get into the weakness of the primary argument, which was the focus of Tim's article. Oh, and the fact that they mention "precedent" but cite no cases.
I am not a lawyer, but I can't believe 3 lawyers signed off on this.
[ link to this | view in chronology ]
"...Harry Potter goes through puberty..."
I see the possibility of a great porn flick here. Unless you think someone would sue.
[ link to this | view in chronology ]
Re:
Rule 34...
[ link to this | view in chronology ]
Nothing has been said...
About Whom gets the money.
I would be less obnoxious if the CR, was handed BACK to the families at the death of the creator. But I dont think thats happening in many cases.
The contracts created in the past, May never end, and the Families only get a pitence, after a company and lawyers are paid for.
Then the idea of fighting a corp for control over the books, movie, what ever.. Is never a great idea. Just to let the Family have BACK the rights of the Authors.
What would happen if we Opened those old contracts, and could change them RETROACTIVELY, And fix them so that the Families would become the CR holders after death. Movies and Music are so convoluted that there are Multiple CR, that the material will never be released.
[ link to this | view in chronology ]
Only in my final story did I include a mention of pants, when I noted that they were green corduroy. Therefore any depiction of the character wearing pants of any type violates that still-valid copyright.
[ link to this | view in chronology ]
Re:
Given that Holmes is British, any mention of his "pants" would be both dubious and very uncomfortable, given corduroy underwear!
[ link to this | view in chronology ]
Under that theory...
...Shakespeare Estate owns 87% of everything copyrightable, and Aeosop Estate owns the rest.
[ link to this | view in chronology ]