01 October, 2013

Elementary Dear Watson - Sherlock Holmes Faces Copyright Challenge

The 1880s were a time of invention, with the creation of a new form of toilet paper, the modern seismograph and one of the most iconic characters of British literature, Sherlock Holmes, all happening in the latter decade of the 19th Century. Without discounting the impact the former two have had on human history, the story of Sherlock Holmes in its many forms has inspired millions of people, spawning countless adaptations and reboots in its lifetime. In this the character of Sherlock Holmes and all the other cast have immense value to the copyright holders, the Arthur Conan Doyle Estate.

The copyright for Sherlock Holmes has already expired in Canada and the United Kingdom, in 1980 and 2000 respectively, but the mastermind of deduction still remains protected in the United States on part of some of Sir Arthur Conan Doyle's pieces till 2023. As such our hero is still held tightly to by its copyright holders in the US, but this has now been challenged.

In a law suit filed in early 2013, Leslie Klinger, a California based lawyer and Sherlockian expert, is challenging whether the character of Sherlock Holmes should be protected by copyright due to most of Sir Arthur Conan Doyle's works having been released into the public domain. The character of Mr. Holmes has been vigorously protected by the Estate, demanding licencing fees for the use of the detective's character and persona, as opposed to the copying of the stories he resides in. According to the Estate "Holmes is a unified literary character that wasn't completely developed until the author laid down his pen", clearly arguing that the character of Mr. Holmes should be protected for as long as there are works on him which are protected, extending the period till 2023 in the US. Under the defense's statement regarding the complexity of Mr. Holmes' character: "Sir Arthur continued creating the characters in the copyrighted Ten Stories, adding significant aspects of each character's background, creating new history about the dynamics of their own relationship, changing Holmes's outlook on the world, and giving him new skills. And Sir Arthur did this in a non-linear way".

A modern day representation of Mr. Holmes' complexity
As has been discussed on this blog, and by other legal authors throughout the decades, copyright protects the author's expression, not merely the ideas represented in the work. What is argued by the Estate, clearly, is that Sherlock Holmes' character is not merely an idea itself, but an intrinsic part of the expression of Sir Arthur Conan Doyle, and should still be protected. As it stands there is no legal precedent dealing with the character of a person in a long-running literary series, so whether protection would be offered remains a mystery for the most part.

According to Mr. Klinger the Estate initially failed to appear in court for the motion for summary judgment by Mr. Klinger, finally filing their opposition in September. Since then the matter has been passed onto Judge Castillo for a final judgment on the matter.

Should a character be protected as a 'complex personality' which has developed over years, even decades, in the span of a cavalcade of literary adventures? Arguably no, as this would mean copyright would extend its grip into the domain of ideas as opposed to expression. The character or personality of any given fictional personality is merely an idea of what that person is, thinks and how they see and understand the world around them. The expression of those personality traits and how they impact the story surrounding the character should be, and has been,  protected; however the mere idea of those traits encapsulated in a fictional persona do not merit extended protection in themselves. Whether the court would disagree with me will remain to be seen.

Source: The Guardian

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