Can You Sue Sherlock Holmes?
As a recent article at Den of Geek noted, from the very first appearance of Sherlock Holmes, it is likely that there was fan fiction emulating the style and character of the great detective. Today, that has evolved into countless forums that debate the many details of the stories and novels, movies, and, naturally the fan fiction, too. And as that same article said, “Usually, this results in fun debates, but when it comes to Sherlock Holmes, it occasionally results in lawsuits.”
Among the latest is one filed by Conan Doyle Estate Ltd, the actual estate of Sir Arthur Conan Doyle, the creator of Holmes. They are suing entertainment giant Netflix for a new series – Enola Holmes. They are also suing author Nancy Springer who created the books on which the series is based.
Here’s the problem, as most fans of Holmes know, the Holmes books are in what is known as the public domain. This means you might be a graphic artist who wants to publish a series of Holmes stories with your illustrations. You can do whatever you want with the content because no one has exclusive copyrights on the stories and novels any longer.
Well, almost all of the stories and novels.
There are ten stories that are not yet in the public domain, and which do, indeed, contain copyrighted elements. The estate is claiming that “everyone is allowed to make big-budget Sherlock Holmes fanfic because the character is in the public domain, but that these books and the upcoming show violate aspects of Sherlock’s personality that are indigenous to the ten stories that are still protected by copyright.”
Confused? Yes, most are. After all, there are many other stories of a similar nature, i.e. a young girl or boy who is related to Holmes or who aligns with him to help solve crimes. In fact, another lawsuit dating to 2014 involved Laurie R. King, the author of best selling Mary Russell stories in which the woman is a partner to an aging Holmes.
The estate sued her, as well as author Leslie Klinger, claiming that the remaining stories not in the public domain guaranteed protection to the Sherlock Holmes character and that all “who did Sherlock Holmes pastiches had to pay a licensing fee.”
The courts found otherwise and ruled in favor of the authors.
Does this mean an easy and instant win in this case? No, says several legal experts. They explained that Holmes being in the public domain now is one thing, but that the ruling in that earlier case did provide the estate with a bit of new authority.
One expert said, the “the groundwork for their new, bizarre, and hyper-specific claim,” was laid by the ruling of the earlier case. “They had actually got a court decision [saying] it was against the law to use anything from the last ten Holmes stories (still not in the public domain at that time), which meant that they could go on and demand damages and a share of profits whenever someone did so.”
Ridiculous, says most Holmes experts. Why? Because the estate says it is only in those copyrighted stories that Holmes suddenly becomes empathetic and emotional. Thus, their potential authority in the latest lawsuit, since it is a tale that shows Holmes behaving nicely towards females.
The estate says that any book, film, or other work that depicts him as sympathetic and warm towards women is a violation of their copyright protections.
Hooey, say fans. Just consider a single line of text from one of the public domain tales from the 1890s: “…the impression of a woman may be more valuable than the conclusion of an analytical reasoner.”
Holmes appreciated women, and hopefully, this case forces the estate to allow everyone to see the complete Holmes as the author always envisioned him.