Did giving Sherlock Holmes a heart reset the copyright term? CONAN DOYLE ESTATEv. NANCY SPRINGER

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

Well developed and recognizable characters are the life blood of a successful book. In the United States it is possible for the characters of a book to be granted copyright protection, if certain conditions are met. The text of the Copyright Law does not explicitly mention characters as subject matter that is protected, so any copyright protection granted to characters in copyrighted works would have to be created by a court’s interpretation of what copyright law may implicitly protect.

Court precedent varies between the different appeals circuits however a consistent rule is, to be eligible for copyright protection a character must be part of a copyrightable work and the character must be fictional. Assuming that a character is fictional and is part of a work which can be protected by copyright, the question then becomes whether the character itself can be protected by copyright. There are two basic tests used by the courts.

A well delineated character – will be granted copyright protection. Under this approach, a three-step test is required to be followed. Firstly, the character must possess physical and conceptual attributes. Secondly, the character must be “sufficiently delineated” to be identified as the same character across multiple occasions. He must therefore show consistent traits. Lastly, the character must be “especially distinctive” and “contain some unique elements of expression. The consistency of a character’s traits and attributes is considered as the key factor for whether the character qualifies for copyright protection.

A character that is the story – will be granted copyright protection. Under this approach the court reviews how central the character is to the story. To be granted copyright protection the character must actually constitute the story being told and not simply be a vehicle for telling the story.

But frequently the courts will apply both rules when they are determining whether or not a fictional character is worthy of copyright protection.

CONAN DOYLE ESTATE LTD. v. NANCY SPRINGER, 1:20-cv-00610 (D.NM 2020) is a case which introduces an interesting question into the character copyright debate. Does the copyright term for a character begin when the character is first introduced or when the character stops evolving?

Plaintiff in this case is the estate of Sir Arthur Conan Doyle. Plaintiff manages the intellectual property of Conan Doyle, the most famous of which would be the series of novels that follow Sherlock Holmes. The character of Sherlock Holmes was first introduced in 1887 in a novel authored by Conan Doyle.

Between 1923 and 1927 Conan Doyle wrote his last ten original stories about Sherlock Holmes, collected in the 1927 book The Case-Book of Sherlock Holmes. The Copyright Act provides a term of protection for each story of 95 years from publication, resulting in copyright terms for the stories ending between December 31, 2018 and December 31, 2022.

Plaintiff asserts that the books written before 1923 are about a different Sherlock Holmes than the books written 1923. The Sherlock Holmes prior to 1923 was all brains and no heart. Conan Doyle lost his bother and son in World War I, this loss was reflected in his writing style. Plaintiff claims that the Sherlock Holmes in the post 1923 books is a warmer, more empathetic person and still protected by copyright. However, Plaintiff acknowledges that the 1887 version of Sherlock Holmes is in the public domain.

Defendant Springer is an author that wrote several books entitled “Enola Holmes Mysteries”. These books were then licensed to be made into a movie which should be released soon. Plaintiff filed suit against Defendant claiming that the books and the movie adaptation reproduce copyrighted elements of the post 1923 Sherlock Holmes character.

It is an interesting legal argument, that character development resets the timer on copyright duration. Whether a court finds the argument to be persuasive is, so far, a mystery.

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