05 October, 2020

An Emotional Case - Can Sherlock Holmes Exhibiting More Emotions be Copyright Infringement?

 The world of copyright often springs up very odd cases and arguments for copyright infringement, and the character of Sherlock Holmes is by no means unfamiliar in that particular world (discussed on this blog, for example, here and here). With some of Sir Arthur Conan Doyle's iconic stories falling out of copyright some years ago, it would be easy to assume that the character is totally out of copyright and that an inevitable free-for-all on the character will be hitting various screens and mediums soon. However, there are still stories that the author penned that remain protected by copyright (specifically the stories written in the early to mid-1920s), and the estate of the deceased author will got to great lengths to protect those rights. With this in mind, a new case has sprung up revolving around the detective, bringing the question of whether the exhibition of emotions can showcase copyright infringement. 

According to numerous news outlets the estate of Sir Arthur Conan Doyle has sued Netflix and the author Nancy Springer for copyright infringement relating to their new movie, Enola Holmes, which focusses on Sherlock Holmes' teenage sister, based on the books by Nancy Springer on the same character. 

In their complaint the estate argue that the character of Sherlock Holmes changed in the last 10 books from an aloof, near emotionless individual to one that actually had a heart and could form friendships and express his emotions, and respect women (one can appreciate that this stance was probably quite progressive in the 1920s). Mr Holmes' relationship also changed with his companion Watson to one of actual friendship and not merely one of master and assistant. 

In the Enola Holmes movie by Netflix (and also the books by Ms Springer), Sherlock Holmes showcases the detective transforming from a cold, aloof individual to one who is warm, respectful and kind in his relationships. He also worries about his friend Watson's health during altercations in those stories. Sherlock also exhibits other emotions such as that of worry and distraught, being unable to eat due to his internal turmoil. Finally, Sherlock also shows that he cares for his sister Enola and shows brotherly love towards her. 

The estate argues that this emotional depth is never exhibited in the books that are in the public domain, and therefore are protected by copyright as it relates to the latter 10 books where Sherlock Holmes evolves into a more fleshed out, emotionally open person. 

Arguably, the estate's argument is quite flimsy, since, unless either Ms Springer or Netflix have copied the actual expression within the last ten books by the author, it will be hard to stretch copyright protection over the simple aspect of emotional depth or development. There are near countless adaptations of Sherlock Holmes, which, to varying degrees, will showcase emotions or the lack thereof. While it is arguable that some specific expressions of emotions could be protected by copyright (for example, as noted by the Verge, Sherlock caring about dogs), overall emotional depth or availability will be hard to stretch to cover any thematic arcs in the books themselves. 

Although the courts have acknowledged in Klinger v Conan Doyle Estate that Sherlock Holmes as a character is protectable (within the relevant term), the extent of "roundedness" that could extend outside of the term is very debatable. The court also discusses the alleged incremental nature of copyright in the depiction of the characters and denies that such an incremental approach could be taken. 

There is a very good chance that this case will never see the light of day in court, as the parties will undoubtedly settle the issue out of court, but it would be interesting to see whether the courts would consider emotional development for characters to be something that copyright would protect. This writer is very doubtful that the courts would find any infringement here, but bigger surprises have been created by the courts in the past.

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