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Saturday, April 20, 2024

Why Sherlock Holmes Can Finally Smile

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Created by ophthalmologist-turned-author Sir Arthur Conan Doyle in 1887, Sherlock Holmes is the most famous detective in fiction (fine, after Batman, but he’s more famous for being a detective. And besides, Batman was partly inspired by him).

He appeared in four original novels and 58 short stories (collected in five volumes) until Doyle’s death in 1930, at which point ownership of the character passed to Doyle’s heirs. But intellectual property (IP) ownership isn’t indefinite, and the stories have gradually entered the public domain, making them free to use.

However, in an interesting and odd turn of events, Sherlock’s creator’s estate continued to claim ownership of the character even after he began to enter the public domain – specifically, over any version in which he was… well, nice. Now that, as of January 1, 2023, Sherlock is fully in the public domain, let’s look back at The Curious Case of the Illicit Smile…

‘The Mickey Mouse Protection Act’

IP law is complex and changes from country to country, but in the US, the short version is this; as of 1998, most copyrights last for the life of the author plus 70 years, or 120 years from creation or 95 years from publication, whichever is sooner.

Copyright terms used to be much shorter, but Congress keeps extending them. The 1998 Copyright Term Extension Act is mockingly called “The Mickey Mouse Protection Act” because the Walt Disney Company lobbied hard for it. They continue to push for legislation extending copyrights to keep the Mouse in-house, but as of now, Mickey’s first appearance, 1928’s Steamboat Willie, is set to enter the public on January 1, 2024.

This raises interesting questions. What happens when anyone can use Mickey Mouse? Or Superman or Barbie? What are the implications not just for the corporate owner but the beloved character?

There’s also a wrinkle here; many IPs appear in more than one work, and many have different versions. Winnie-the-Pooh, for example, entered the public domain last January—but only the original 1926 book character, not the licensed 1966 Disney movie. So you can have an anthropomorphic teddy bear named Winnie (hence the upcoming Winnie the Pooh: Blood and Honey slasher flick), but it just can’t look like the Disney design or wear a red shirt.

With characters like Sherlock Holmes, who appeared in different stories over 40 years, each work—and the version of the character appearing in it—enters the public domain separately when its respective copyright expires. So the first Holmes story, the 1887 novel A Study in Scarlett, has been in the public domain since January 1, 1981. But the last 10 Holmes stories, collected in 1927’s The Case-Book of Sherlock Holmes, only entered on January 1, 2023.

These diminishing rights to Holmes and his ancillary characters (Watson, Moriarty, etc.) have been held by the Doyle family, under Conan Doyle Estate Ltd., who’ve demanded licensing fees for any use. Even though Holmes has technically been fair game since ’81, most adaptations opted to simply pay the relatively modest fee, including BBC’s Sherlock, CBS’s Elementary and Warner Bros.’ Robert Downey Jr. movies (you can find more here). That is, until 2013 when American writer, Sherlock Holmes scholar and lawyer Leslie S. Klinger decided to sue instead.

Sue Them, My Dear Watson

Klinger was co-editor of the short fiction anthology In the Company of Sherlock Holmes: Stories Inspired by the Holmes Canon, published by Simon & Shuster, for which the Doyle Estate demanded a licensing fee under threat of blocking its distribution. He sued them, asking the court for a declaratory judgment affirming that Holmes and Watson were public domain works.

The Doyle Estate asserted ownership over what they described as a different version of the character, one who’s “warmer,” “could express emotion,” was “capable of friendship” and even “began to respect women.”

The Estate counterargued that the copyright law itself had been misconstrued; a character is a separate IP from the stories it appears in, and the copyright term for a character doesn’t begin until the creation of the characters is complete. Since Sherlock Holmes evolved throughout his stories, the term only began with the last one, in 1927, making him still under copyright.

The court quickly, and then again on appeal, rejected this argument. A fictional character can’t be separated from its stories (imagine Captain America Comics #1 being public domain but not Captain America, or Halo but not Master Chief), and whatever version of a character appears in a public domain work is also in the public domain (otherwise any tweak to the character would extend the copyright, potentially forever). The court ruled that there was no legal basis for the Estate’s licensing fee demands, calling their threats “a form of extortion.”

However, as decisive as it was, the verdict left the door ajar for what would soon follow. If each version of a character is tied to the work it appears in, then a version from a work still under copyright, if different enough, is copyrighted too. Which brings us to Sherlock Holmes’s smile.

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Sherlock Holmes and the Case of the Smile

A few years before the Klinger case, in 2006, author Nancy Springer began publishing her YA series The Enola Holmes Mysteries, about Sherlock’s teenage sister, a character Springer invented. In her stories, Sherlock is notedly more friendly and affable than in the originals.

The Doyle Estate didn’t grant any rights or receive any fee, nor did they take any action. Until 2020 that is, when the Enola Holmes movie came out on Netflix, starring Millie Bobby Brown as Enola and Henry Cavill as Sherlock (how un-typecast he is for the role, described in Doyle’s stories as very tall, thin and hawklike, shows how they were going for a different type of Holmes).

The Estate sued Springer, publisher Penguin Random House, Netflix and others involved, claiming that the specific personality traits Sherlock exhibits in the Enola Holmes books and movie came from Doyle’s later stories, which were still copyrighted at the time.

Effectively, Holmes was only allowed to smile in licensed works.

In the first 48 stories, Holmes is as cold and bumptious as he is brilliant and moral—the original good guy who’s not a nice guy—which is how he’s generally been portrayed in adaptations. But Doyle lost his eldest son and brother in World War I, which profoundly affected him, as well as his character. His last 10 stories, written between 1923 and 1927, portray a Holmes who’s more human, showing more emotion and empathy. He even smiles.

Since that collection of stories was still under copyright, the Doyle Estate asserted ownership over what they described as a different version of the character, one who’s “warmer,” “could express emotion,” was “capable of friendship” and even “began to respect women.” Effectively, Holmes was only allowed to smile in licensed works.

As absurd as all this sounds, it’s not without precedent. Famously, Superman’s creators Jerry Siegel and Joe Shuster were engaged in a 70-year series of lawsuits against DC (1947–2016), one of the longest IP litigations in history. When Siegel’s heirs moved to recapture ownership in 1999, it resulted in a temporary Judgement of Solomon; since the character and the earliest strips were created independently and then sold to DC, but later elements were created as a work for hire, each side owned half of Superman. The Siegels had the rights to the original costume, ability to leap tall buildings, deflect bullets and outrun trains, as well as Lois Lane, while DC owned everything else, including flight and X-ray vision, Metropolis and the Daily Planet, Smallville and the Kents, Lex Luthor, kryptonite, etc.

Springer, Netflix, et al. successfully argued that human traits like warmth, kindness and respect can’t be copyrighted, and that besides, Holmes exhibited some of these qualities in earlier stories. The suit was dismissed, quickly and with prejudice, though the parties settled for an undisclosed sum.

Either way, now that 95 years have passed from the publication of The Case-Book of Sherlock Holmes, as of January 1, 2023, all of Doyle’s Sherlock Holmes stories are in the public domain, free for anyone to use. And Sherlock is allowed to smile.

Roy Schwartz is a pop culture historian and critic. His work has appeared in CNN.com, New York Daily News, The Forward and Philosophy Now, among others. His latest book is the Diagram Prize-winning Is Superman Circumcised? The Complete Jewish History of the World’s Greatest Hero. Follow him on Twitter, Instagram and Facebook @RealRoySchwartz and at royschwartz.com.

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