Yet Another Exciting Copyright Lawsuit

The world doesn’t lack for exciting, blog post-enticing copyright lawsuits. This week it’s a suit revolving around a Sherlock Holmes scholar, Klinger, suing the Conan Doyle’s estate over the rights the estate claims to the Sherlock Holmes character. Read a New York Times summary of that lawsuit here and here.

The two parties are disputing what the fact that only 10 out of 60 stories in the Sherlock Holmes universe remain in copyright (the rest having been published before 1923 and so have passed into the public domain) means for the copyrightability of the Holmes character. Does the majority of the oeuvre being in the public domain mean, as the plaintiff contends it does, that “the basic Sherlock Holmes story elements are in the public domain” and therefore secondary works based on the Holmes character need no permission or licensing from the estate, as long as they do not use the expressions from the remaining 10 in-copyright books? Or does the fact that not all the works are in the public domain mean, as the estate claims it does, that as long as any Holmes works is protected by copyright, so is the Holmes character since “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen”?

I have no idea, but this case exactly touches on a point that I find very confusing: the copyright of expressions (words) and the trademark of characters (Holmes). Trademarks last in perpetuity as long as the owners of the trademarks actively use them. This means that although the book upon which Disney based its Snow White character has passed into the public domain, the Disney-created character with her very recognizable blue and yellow dress is a protected trademark. See Litman, Jessica. “Mickey Mouse emeritus: Character protection and the public domain.” U. Miami Ent. & Sports L. Rev. 11 (1993): 429.

This new lawsuit adds yet another layer to this words-characters paradigm. Not only is a character protected by trademark law, but story elements that make up that character are protected by copyright law. This is (I think) relevant to the “substantial similarity” test in copyright law to show that one work copied another work.

Very interesting, and I look forward to copyright pundits to distill and clarify the issues for us all. Stay tuned!

(Oh, and here’s the complaint itself now that it’s dawned on me that I can embed Scribd documents. Scribd, by the way, has its own interesting copyright story.)

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