According to John Shaw, Associate, Gunnercooke, UK, the Estate argues that copyright protection still exists in the works in which these character traits of Sherlock Holmes are displayed despite the character Sherlock Holmes entering the public domain. 

“As a result, it is alleged by the Estate that the depiction of Holmes by Henry Cavill, which includes a warmer side, is an infringement,” he says. “This case raises a significant question about whether certain character traits are capable of protection when the underlying character is no longer protected by copyright. In fact, these are the interesting questions that this case raises.  The issue of infringement arises because the characters Holmes and Watson are in the public domain, but in stories which are still protected by copyright, they are depicted with different character traits.  In a previous case regarding Sherlock Holmes, there was consideration about the dimensions of the character and whether he was a rounded character.”

Shaw says that he thinks the case poses a three pipe problem.  “The previous decisions related to Holmes do appear to be favourable to the argument that the Estate is making,” he says. “However, in The Speckled Band, which was first published in 1892 as part of The Adventures of Sherlock Holmes, Holmes describes Watson as his “intimate friend”.  As a result, it is arguable that Holmes was depicted as expressing emotion before the last ten stories which the Conan Doyle Estate claim are being infringed.  If the case is decided in favour of the Conan Doyle Estate, it would raise questions about the protections of character traits and story elements.  There is a further complexity to the case because Enola Holmes, the sister of Sherlock Holmes, is the creation of Nancy Springer and does not appear in the Conan Doyle canon.  Holmes showing emotion towards a sister may not be capable of being protected by copyright, because that particular trait does not appear in any Conan Doyle work.”

He adds that if this case proceeds to trial and receives a judgment, it will provide a good guide for producers seeking to adapt characters from a set of original works, with some works in the public domain and others protected by copyright. 

“Film producers could err on the side of caution and ensure that the adaptation of a character does not stray from the source material,” he says. “This, of course, sadly limits the creative freedoms available for the adaptations. Previous cases, which have involved the Conan Doyle Estate appears to be arguable either way but could favour the Conan Doyle Estate if the later works with the depiction of characters with new traits are considered derivative works.  Whether there are examples of Holmes displaying emotion in the works which are in the public domain is something to explore.  To producers in general, the easiest way to avoid a similar situation is to obtain a licence or ensure that the version of the character being depicted is out of copyright.”

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