Why Sherlock Holmes can finally smile


Created by ophthalmologist-turned-writer Sir Arthur Conan Doyle in 1887, Sherlock Holmes is the most famous detective in fiction (well, after Batman, but he’s more famous for being a detective. Plus, 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 time ownership of the character passed to Doyle’s heirs. But intellectual property is not indefinite, and the stories have gradually passed into the public domainso its use is free.

However, in an interesting and bizarre turn of events, the heirs of Sherlock’s creator continued to claim ownership of the character even after he began to enter the public domain, namely any version where he was…well. , sympathetic. Now that, as of January 1, 2023, Sherlock is in the public domain, Let’s take a look at the Case of Sherlock’s Smile…

Basil Rathbone as Sherlock Holmes
Basil Rathbone como Sherlock Holmes

“Mickey Mouse Protection Act”

Intellectual property law is complex and varies from country to country, but in the United States, the short version is this: Since 1998, most copyrights last for the life of the author plus 70 years, or 120 years. from creation or 95 years from publication, whichever comes first.

Copyright terms used to be much shorter, but Congress continues to extend them. The Copyright Term Extension Law of 1998 is derisively called the “Mickey Mouse Protection Act” because the Walt Disney Company lobbied hard for it. They keep pushing for legislation to expand copyright, but for now, Mickey’s first appearance, 1928’s Steamboat Willie, will go public on January 1, 2024.

This raises interesting questions. What will happen when anyone can use Mickey Mouse? Or Superman or Barbie? What are the implications, not just for the business owner, but for the beloved character as well?

There is also a problem: many Intellectual Properties appear in more than one work, and many have different versions. Winnie the Pooh, for example, entered the public domain this past January, but only the original character from the 1926 book, not the 1966 Disney movie. So you can have an anthropomorphic teddy bear named Winnie (hence the upcoming horror film Winnie the Pooh: Blood and Honey), but cannot look like the Disney design or wear a red shirt.

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In the case of characters like Sherlock Holmes, who appeared in different stories over 40 years, each work (and the version of the character that appears in it) enters the public domain separately when their respective copyrights expire. Thus, the first Holmes story, the 1887 novel A Study in Scarlet, has been in the public domain since January 1, 1981. But the last 10 Holmes stories, collected in The Sherlock Holmes Archive (1927), did not enter the public domain until January 1, 2023.

The rights to Holmes and his minor characters (Watson, Moriarty, etc.) have been held by the Doyle family, through the Conan Doyle Estate Ltd., who have required license fees for any use. Even though Holmes has been technically clean since ’81, most adaptations chose to just pay the relatively modest fee, including BBC’s Sherlock, CBS’s Elementary, and Warner Bros.’ Robert Downey Jr. movies (you can find more here). This was until 2013, when the American writer, Sherlock Holmes scholar and lawyer Leslie S. Klinger decided to file a lawsuit.

Demand them, my dear Watson

Klinger was co-editor of the Sherlock Holmes short fiction anthology, published by Simon & Shuster, for which the Doyle Estate demanded a license fee under threat of blocking distribution. The author sued them and asked the court to issue a declaratory judgment stating that Holmes and Watson were works in the public domain.

The Doyle Estate claimed ownership of what they described as a different version of the character, one that is “warmer”, “could express emotion”, was “able to befriend” and even “began to respect women”.

The property argued that copyright law itself had been misinterpreted; a character is an independent intellectual property of the stories in which it appears, and the copyright term of a character does not begin until the creation of the characters is complete. As Sherlock Holmes evolved through his stories, the term did not start until the last one, in 1927, so was still protected by copyright.

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The court quickly rejected, and again on appeal, this argument. A fictional character cannot be separated from its stories (imagine Captain America Comics #1 is in the public domain but not Captain America, or Halo but not Master Chief), and any version of a character that appears in a work in the public domain it’s also in the public domain (otherwise any tinkering with the character would extend the copyright, potentially forever). The court ruled that there was no legal basis for the Doyle Estate’s license rights claimsdescribing his threats as a “form of extortion”.

However, decisive as it was, the verdict left the door ajar for what was soon to come. If each version of a character is linked to the work in which it appears, then a version of a still copyrighted work, if different enough, is also copyrighted. Which brings us to the Sherlock Holmes smile.

Sherlock Holmes and the case of the smile

A few years before the Klinger case, in 2006, writer Nancy Springer began publishing her teen series The Adventures of Enola Holmes, about the teenage sister of Sherlock, a character invented by Springer. In her stories, Sherlock is noticeably more friendly and affable than in the originals..

The Doyle Estate did not cede any rights or receive any royalties or take any action. Until 2020, when the Enola Holmes film was released on Netflix, starring Millie Bobby Brown as Enola and Henry Cavill as Sherlock (how unsuited for the role, described in Doyle’s accounts as very tall, thin and hawk-like). ).

Doyle Estate sued Springer, Penguin Random House, Netflix and others involved, alleging that the specific personality traits that Sherlock displays in the books and the Enola Holmes film came from Doyle’s later stories, which were still protected at the time. by copyright.

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

In the first 48 stories, Holmes is as cold and brash as he is bright and moral (the original good guy who is not a good guy), which is how he has generally been portrayed in the adaptations. But Doyle lost his eldest son and his brother in World War I, which affected him deeply, as well as his character. The last 10 stories by him, written between 1923 and 1927, portray a more human Holmes, which shows more emotion and empathy. He even smiles.

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Since that collection of stories was still protected by copyright, the Doyle Estate claimed ownership of what it described as a different version of the character, one that was “warmer,” “could express emotion,” was “capable of befriending ” and even “began to respect women.” In fact, Holmes could only smile at authorized works.

As absurd as it sounds, it is not without precedent. Famously, the creators of Superman, Jerry Siegel and Joe Shuster, had a series of lawsuits against DC for 70 years (1947-2016), one of the longest intellectual property lawsuits in history. When Siegel’s heirs moved to repossess the property in 1999, it came to a temporary Judgment of Solomon; since the character and early strips were created independently and later sold to DC, but later elements were created as a work for hire, each part possessed half of Superman. The Siegels held the rights to the original suit, the ability to jump 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, and others successfully argued that human traits like warmth, kindness, and respect cannot be copyrighted and that, moreover, Holmes exhibited some of these qualities in earlier stories. The suit was dismissed, quickly and without prejudice, although the parties settled for an undisclosed sum.

In any case, now that 95 years have passed since the publication of The Sherlock Holmes File, as of January 1, 2023, all of Doyle’s Sherlock Holmes stories are in the public domain and anyone can use them freely. And Sherlock can smile.