Remember when Arthur Conan Doyle’s heirs lost their “quixotic” quest to control Sherlock Holmes for 135 years in Klinger v. Conan Doyle Estate? Now the estate is at it again — this time as the plaintiff — in a new lawsuit filed earlier this month: Conan Doyle Estate v. Miramax, et al.
Is the estate’s expansive position on copyright protection more likely to succeed this time around?
Let’s start with the Klinger case:
In that case, the editor of an anthology inspired by Sherlock Holmes sued the estate after it demanded a licensing fee from them. Those new stories were based on Conan Doyle stories in the public domain, but the estate argued that stories dating back as far as 1887 deserved copyright protection because a small number of later Conan Doyle works featuring Holmes and Watson were copyright protected until 2022.
Well, that was bullshit. As Judge Richard Posner of the 7th Circuit Court of Appeals wrote in an amusing opinion after an even more amusing oral argument (available here):
With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright  looms, once one realizes that the Doyle estate is seeking 135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story. [emphasis added]
Thus, contemporary authors are free to copy features of Sherlock Holmes stories that are now in the public domain.
As for the ten stories published after 1923 that are not yet in the public domain, Posner explains that they are “derivative from the earlier stories, so only original elements added in the later stories remain protected [under copyright law].”
That brings us to the second case, Conan Doyle Estate v. Miramax, et al:
In this case, filed last week in the U.S. District Court for the District of New Mexico, the Conan Doyle Estate has sued the creators and distributors of unauthorized contemporary works — a novel and a movie based on that novel that comes out in July — that feature a retired Sherlock Holmes. The lawsuit alleges copyright and trademark infringement claims against Miramax, Roadside Attractions, Penguin Random House, Mitch Cullen, and William Condon.
The novel at the heart of this case is Mitch Cullen’s A Slight Trick of the Mind, which Cullen adapted into a movie, Mr. Holmes, starring Ian McKellan and Laura Linney.
The lawsuit alleges that Cullen took original elements from the last ten Conan Doyle stories about Sherlock Holmes’s character, retirement, and living arrangements, and inserted them into his new work. The estate claims in the complaint that “[the] copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself,” while acknowledging that “two of Conan’s Doyle’s public domain stories make references to Holmes’s retirement, placing [certain] elements about it in the public domain.”
If the elements used in the allegedly infringing works originate in the last ten Conan Doyle stories, then they are entitled to copyright protection. If, however, they are derivative of elements of earlier Sherlock Holmes stories, then they are in the public domain.
I’ve never read Cullen’s A Slight Trick of the Mind, and I don’t remember Conan Doyle’s last ten Holmes stories well enough to assess whether Cullen infringed on Conan Doyle’s copyright-protected work as a factual matter. I will say, though, that much of what the estate alleges as “original features” of the ten copyrighted works is pretty vague: that Holmes developed an interest in nature, an affection for dogs, and a capacity to love another human being in his later years. Do these types of general traits warrant protection under copyright law?
We shall see!
*Check out The Hollywood Reporter for more on this case and for a link to the full Complaint.
**The trademark and unfair competition claims relate to Mr. Holmes. The estate alleges that the movie uses marks that will “create confusion in the marketplace and a false impression in the minds of the public that [the estate] is somehow sponsoring or affiliated with […] or endorsing defendants’ movie.”
***For those wondering more about how long copyright protections last, see this summary from the U.S. Copyright Office, which says, “The provisions of copyright law dealing with duration are complex.”
UPDATE (November 2015): The parties settled the lawsuit. The details do not appear to be public.