Copyright Law: Extortion or Protection? A Sherlockian Enigma

Is the legendary British detective Sherlock Holmes blackmailing the public?

On Valentine’s Day 2013, Leslie S. Klinger challenged that notion by filing for declaratory judgment[see footnote i] in the Northern District of Illinois seeking a resolution to the issue: May the heirs of Sir Arthur Conan Doyle demand a licensing fee[see footnote ii] from anyone wishing to capitalize on Sherlock Holmes?  To spin this story another way, Mr. Klinger, his co-editor Laurie R. King, and their publisher decline to pay the licensing fee to the Conan Doyle Estate for a yet-to-be-published collection of new and original short stories by prominent contemporary authors, centering on the famous detective.

Now, there is no question that all but 10 of Sir Conan Doyle’s stories entered the public domain.  (To keep everyone on the same page, “public domain” simply means that a publication is no longer protected by copyright but may be exploited by anyone without liability for infringement.[see footnote iii])  The interesting plot twist to this tale is, however, whether Sherlock Holmes as a character has entered the public domain.

But can a character (as opposed to the story) ever be protected by copyright law?  The answer: yes—in limited circumstances.  (Sorry for being non-committal but it really depends on the character at stake.)  To hopefully clarify, I’ll turn to another British hero…the infamous James Bond.

In 1995, Metro-Goldwyn-Mayer, Inc. (aka “MGM”) sued American Honda Motor Co., Inc. (aka “Honda”) for copyright infringement, among other things,[see footnote iv] for broadcasting this commercial:  http://www.youtube.com/watch?v=gqa-b3assCA.  Specifically, MGM alleged that Honda violated their copyright “in the James Bond character as expressed and delineated in [their 16] films,” not James Bond in general.[see footnote v]  MGM “point[ed] to various character traits that are specific to Bond [in their movies]—i.e. his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred’; his marksmanship; his ‘license to kill’ and use of guns; his physical strength; his sophistication—some of which, [MGM] claim[ed], appear in the Honda commercial’s hero.”[see footnote vi]

After reviewing the evidence and hearing the arguments of counsel, the California District Court stated that under either the Ninth Circuit’s “Story Being Told” test or the Second Circuit’s “Character Delineation” test, James Bond is a copyrightable character.[see footnote vii]  In essence, the Court reasoned:

Like Rocky, Sherlock Holmes, Tarzan, and Superman, James Bond has certain character traits that have been developed over time through the [16] films in which he appears.  Contrary to [Honda’s] assertions, because many actors can play Bond is a testament to the fact that Bond is a unique character whose specific qualities remain constant despite the change in actors.  [Citation.]  Indeed, audiences do not watch Tarzan, Superman, Sherlock Holmes, or James Bond for the story, they watch these films to see their heroes at work.  A James Bond film without James Bond is not a James Bond film.  Moreover, … the Honda Man’s character, from his appearance to his grace under pressure, is substantially similar to [MGM’s] Bond.[see footnote viii]

Assuming that the Illinois court looks to either the Second or Ninth Circuits for guidance, the problem with either of these tests is: What point in time does the character’s uniqueness become fixed in order to determine when the copyright protection expires?  For example, let’s just pretend that the first movie introduced James Bond’s “cold-bloodedness” and “overt sexuality”; the second film established his “love of martinis ‘shaken, not stirred’” and “marksmanship”; and the sixth movie launched his “‘license to kill’” and sophisticated persona.  In this hypothetical scenario, when does James Bond actually become James Bond?  Does it have to be the majority of traits?  All the traits?  50% of the traits?  Or what?

The uncertainty of when a character is fully formed leaves room for the Conan Doyle Estate to argue that the uniqueness of Sherlock Holmes character was not delineated enough until all the stories were told.  As a result, the copyright laws protect Holmes until all the Conan Doyle tales enter the public domain.  Such a position hinders new and original stories of Holmes by contemporary writers from ever being published unless they pay up.

Further, if the court were to agree with this possible argument, there is a potential for characters never entering the public domain simply because a new character trait comes into existence pushing back the clock.  (This also leads to another mess of questions such as how pertinent does the trait have to be and so on to merit copyright protection.)  This extreme outcome exist especially when a company like MGM owns the copyright and could continue to make James Bond films indefinitely with different actors, different writers, different directors, and different producers, just by tweaking and developing the James Bond character along the way.

A simpler, workable solution to the question of copyright expiration for a character would be to flatly state that the first time a main character is established starts the clock ticking.  That way, it allows for character development and continued growth in the hearts and minds of the public while setting a definable start date.  (Think of Harry Potter and how the eleven-year-old boy matured and evolved during the course of the series but he always remained Harry Potter, the Boy Who Lived.)

It will be interesting to see what the Northern District of Illinois deduces from the facts presented and how they resolved this Sherlockian enigma.  Stay tuned.