'Enola Holmes' Producers Go In Hard On Conan Doyle Estate In Motion To Dismiss Its Bullshit Lawsuit

from the what's-up-holmes? dept

Over the summer, we wrote about a very strange lawsuit brought by the Estate of Sir Arthur Conan Doyle against Netflix and the makers of the forthcoming film Enola Holmes. What made much of this head-scratching is that the vast majority of ACD's Sherlock Holmes works are old enough to have entered the public domain. In the lawsuit, the Estate points out that there are ten Sherlock stories that are not in the public domain, however. And that because the Holmes character in those stories is both more emotional and -- checks notes -- likes dogs, that somehow that makes any depiction of the Holmes character having emotions and liking dogs as somehow copyright infringement. Also, there is a trademark claim for using "Holmes" in the film's title, which is dumb because it's a work of art and the public domain character's name being part of the film's title is of artistic merit.

So let's focus on the copyright claim, instead. Or, rather, let's let the filmmaker's motion to dismiss focus on it, so thoroughly did they excoriate the Estate. We'll start with two claims made by the Estate as to protectable elements of the Holmes character: that the later works showed his warming relationship with his sidekick Watson and -- checks notes again in disbelief -- sigh, that he likes dogs. Well, the filmmakers suggest that those are sort of irrelevant since the film doesn't depict Holmes interacting with either Watson or dogs.

Dr. Watson is not even a character in the Film. Accordingly, the Film does not develop Watson’s relationship with Sherlock Holmes and Watson does not remarry in the Film.

The Film does not show Sherlock interacting with dogs, and accordingly, does not demonstrate any “great interest” in dogs by Sherlock.

As such, the motion points out that the only relevant claim is on the emotional and demeanor traits the Estate claims are later protectable developments of the Holmes character. To succeed on this, the Estate would have to be able to demonstrate first that these are protectable elements for copyright and that those elements only appear in the later, not public domain Sherlock works. On the matter of whether emotions are somehow protectable, the motion points out that this goes against copyright's idea/expression dichotomy.

It is a “fundamental tenet” of copyright law that “protection extends only to the author’s original expression and not to the ideas embodied in that expression.” - Gates Rubber Co. v. Bando Chem. Indus.).

See also 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work for authorship extend to any idea … [or] concept… regardless of the form in which it is described, explained, illustrated, or embodied in suchwork”). As the Tenth Circuit has explained, courts “ must separate unprotected ideas from expression” because copyright law only protects “the ‘particularized expression’ of [an] idea,”and not the idea itself - Blehm v. Jacobs. See also Golan v. Gonzalez (original expressionin the literary context “refers to the particular pattern of words … that comprise a work”).

And that should be enough by itself to get this lawsuit tossed in the trash heap where it belongs. In case that doesn't do the trick, the motion goes on to note that the very traits the Estate is wrongly claiming are protectable, namely a softer, kinder Sherlock Holmes, also happen to show up in earlier works now in the public domain. In all, the lawyers for the film provided six examples of Holmes exhibiting these traits in earlier, public domain works. To be honest, this whole thing might have been worth it if only so I could picture a bunch of lawyers pouring through old Sherlock Holmes stories and arguing over which ones showed the most emotional development.

But beyond that, this whole lawsuit is dumb and the court should dismiss it as requested.

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Filed Under: arthur conan doyle, copyright, enola holmes, public domain, sherlock holmes


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  • icon
    Stephen T. Stone (profile), 5 Nov 2020 @ 8:39pm

    A horrid thought occurs: If Disney won’t be the ones to extend copyright nowadays, might the Doyle estate give it the ol’ college try to keep those last copyrighted Holmes stories under copyright for another few decades so they can keep suing people?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Nov 2020 @ 9:51pm

      Re:

      Until RDJ blew up his popularity, Holmes wasn't that big of a moneymaker. The Estate simply couldn't afford to keep a bullpen like Disney does.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 5 Nov 2020 @ 11:26pm

        Re: Re:

        "Until RDJ blew up his popularity, Holmes wasn't that big of a moneymaker"

        Erm, no. While that was the first major Hollywood production based around the character in a few years, it's been a big moneymaker on TV for many decades, as well as other media such as novels, comic books, stage and radio. It's a perennial character, there's always someone making money from it.

        Guy Ritchie's movie wasn't really even the only major version of the story in that year, as the Beneditch Cumberbatch version was in production before that movie came out, although it first screened in 2010. It might be right to say that these two properties indicated an increase in popularity of the character in the mainstream zeitgeist, but it's always been a moneymaker

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Nov 2020 @ 10:05am

          Re: Re: Re:

          Basil Rathbone weren't no slouch.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 6 Nov 2020 @ 1:00pm

            Re: Re: Re: Re:

            Nope, but his character was certainly a good example of an adaptation of the Holmes stories that took liberties with the nature, events and even time of the originals' settings.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 9 Nov 2020 @ 1:05am

              Re: Re: Re: Re: Re:

              "...but his character was certainly a good example of an adaptation of the Holmes stories that took liberties with the nature, events and even time of the originals' settings."

              That it did. Still, if anyone who grew up watching any of the Holmes adaptations had to put a face to Sherlock Holmes, Rathbone's somber mug would be what pops up. Similarly as to how David Suchet became the one true face of Poirot.

              reply to this | link to this | view in chronology ]

              • icon
                PaulT (profile), 9 Nov 2020 @ 1:34am

                Re: Re: Re: Re: Re: Re:

                "Still, if anyone who grew up watching any of the Holmes adaptations had to put a face to Sherlock Holmes, Rathbone's somber mug would be what pops up"

                That certainly depends on when and where you were experiencing Holmes. Many would think of Jeremy Brett's TV performance or John Gielgud's radio portrayal. While Rathbone was a standard setter, he's not alone.

                reply to this | link to this | view in chronology ]

                • icon
                  Scary Devil Monastery (profile), 9 Nov 2020 @ 9:04am

                  Re: Re: Re: Re: Re: Re: Re:

                  "Many would think of Jeremy Brett's TV performance or John Gielgud's radio portrayal. "

                  Probably because, well, Rathbone's Holmes was in black & white, mainly.
                  Jeremy Brett's adaptation was in itself extremely good, but a lot has to be said about their whole production being of an extremely high caliber. Brett's Holmes walked through a victorian and edwardian london brought to very vivid reality.

                  reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 6 Nov 2020 @ 8:34am

      Re:

      They don't have Disney lobbying money.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Nov 2020 @ 8:58pm

    But how will Arthur Conan Doyle continue generating stories about a creation he came to hate if we don't respect copyright?!

    Oh, wait -

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Nov 2020 @ 9:44pm

    details matter

    This suit is not brought by the "Estate of Sir Arthur Conan Doyle", but rather by a corporate entity which has nothing to do with Doyle aside from allegedly owning some of the copyrights and calling itself the "Conan Doyle Estate".

    Additionally, there are not ten stories at issue. Only six of Doyle's Sherlock Holmes stories are still protected by copyright.

    https://en.wikipedia.org/wiki/The_Case-Book_of_Sherlock_Holmes

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Abner 'The Great' Stonkin, 5 Nov 2020 @ 9:54pm

    Copyright should stop modern nitwits from ruining classics.

    I find the words "Sherlock Holmes" to be THE fundamental "original expression" that should be protected. In perpetuity. No harm to ME. -- YES, I do have the complete canon in box set of paperbacks, plus several commentary / reference works including the rare and rather good continuance stories by Doyle's nephew. They annoy me somewhat now because of the rigid English class system and Holmes is bit serfish of a subject, but -- er, digressing.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Abner 'The Great' Stonkin, 5 Nov 2020 @ 9:54pm

      Re: Copyright should stop modern nitwits from ruining classics.

      Letting every HACK use the name can only spoil enjoyment of fans. And there's zero justification for it other than that the writer IS a HACK. Just try ANY original character. Sheesh. Is everyone lacking in imagination these days that can't make up, say, a crime-fighter, er, Abner 'The Great' Stonkin, who instead of solving crimes, instead figures out a way to pin them on Rich people? -- Now that'd be interesting! Take it and run, Timmy.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 5 Nov 2020 @ 11:28pm

        Re: Re: Copyright should stop modern nitwits from ruining classi

        "Letting every HACK use the name can only spoil enjoyment of fans"

        Then, why has the character remained popular for over a century, despite having been used in thousands of stories that had nothing to do with Doyle's estate? Why are some of the best Holmes stories the one that bear little to no relationship to the original novels?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Nov 2020 @ 10:12am

          Re: Re: Re: Copyright should stop modern nitwits from ruining cl

          No hack that doesn't pay some licensing, anyway. Right? Because then the retconning and rebooting are perfectly artistic and A OK. As long as some money changed hands.

          It's so good that copyright law covers how people feel things about stuff, isn't it?

          (Specious argument is specious.)

          reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 6 Nov 2020 @ 9:24am

        Re: Re: Copyright should stop modern nitwits from ruining classi

        By that logic, people shouldn’t be able to use “Dracula” or “Alucard” as a name for a vampire without permission. It’s a name that is baked into our culture. That’s also how the public domain works, like it or not.

        I should also note that while I consider Toy Story 4 to be a cashgrab and unnecessary to the overall plot, and I have some issues with Toy Story 3, neither ruin the original two movies. Furthermore, no instance of fanfiction or reimagining of old classics ruins the original story. People already have a dividing line in there minds between the George Lucas and Disney Star Wars universes, among many other series, and while generally I don’t like that sort of reimagining without input from the original creators for official, commercial releases, that a) doesn’t ruin the originals that I fell in love with (assuming that I did) and b) doesn’t apply when the original creator is dead.

        And there are plenty of reasons to reuse an existing character. Ever heard of alternate universe fanfiction, “What if?” stories, or post-ending fanfiction (the latter specifically when there is no canonical follow-up to the original and likely never will be)? That’s not laziness; it’s highly creative. New works build off of old works all the time. There’re also cases where you move an old work (made before modern film techniques and/or video games existed) into new media. Changing the presentation can be a huge challenge in and of itself. You don’t need something to be 100% new and original in order to be creative.

        At any rate, this is a case where the Sherlock Holmes character has been in the public domain for some time and the original creator is long dead. That’s how the public domain works; people get to build off of old works to make new ones. Maybe some of them are bad, but that doesn’t mean that all of them are or should be stopped.

        If you do not like the new stuff, just ignore it. Don’t let them ruin your enjoyment of the old stuff. Besides, you yourself said that the classics annoy you in some areas; maybe someone will come up with a retelling that removes those annoyances. Either way, the originals are still there.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 6 Nov 2020 @ 12:58pm

          Re: Re: Re: Copyright should stop modern nitwits from ruining cl

          "And there are plenty of reasons to reuse an existing character"

          Most fiction is based on archetypes. The fact that you named your vampire "LeStat" instead of "Dracula" wouldn't shield you from lawsuits in our resident idiot's ideal world, even if it's more creative than our resident dumbass's example.

          Thankfully, the rest of us are richer for this not being the reality we live in, even if some distant descendant of Bram Stoker's family would dearly wish it to be.

          reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Abner 'The Great' Stonkin, 5 Nov 2020 @ 9:54pm

      Re: Copyright should stop modern nitwits from ruining classics.

      "trash heap"? Don't you mean "trash maw" as your "Bill Jackson" sock-puppet used today?

      And "lawyers pouring through"? I'll just let you try to find your error there, Timmy. (Hint: no "U" in poring meaning "study", not pouring water out of a boot.)

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 5 Nov 2020 @ 11:29pm

        Re: Re: Copyright should stop modern nitwits from ruining classi

        Did you mean to reply to someone there, or are you now attacking yourself for imagined words as well as other people?

        reply to this | link to this | view in chronology ]

    • icon
      Rico R. (profile), 5 Nov 2020 @ 10:56pm

      Re: The Public Domain shouldn't stop YOU from enjoying classics.

      Copyright isn't supposed to last forever. Even if you want it to, such an idea is unconstitutional. (See Article 1, Section 8, Clause 8 of the US Constitution) And still, you can't copyright a character's name alone. The character itself is another story, but the bulk of the original works are in the public domain now. That's how copyright is supposed to work. Copyright should last for a short period of time (it's far too long now, but that's another issue), and then it enters the public domain for more people to build upon it. To quote Sherlock Holmes, "It's elementary, my dear!"

      Besides, just because a work is no longer copyrighted doesn't mean you can't enjoy it anymore. If public domain works = boring stuff, the public domain's existence would be pointless. Besides, no one enjoys a book, song, or movie because of copyright!

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 6 Nov 2020 @ 3:51am

        If anything, being in the public domain only helped the original Night of the Living Dead. That movie inspired all zombie stories that came after it — from The Walking Dead to Zombieland, from World War Z to Shaun of the Dead — many of which likely wouldn’t have been made if the Romero Zombie (so to speak) had remained under copyright.

        People who think the public domain is the “death of culture” or whatever couldn’t be more wrong. The public domain is where culture thrives — both in distribution and inspiration. To destroy or malign the public domain is to attack the place where culture lives.

        reply to this | link to this | view in chronology ]

        • icon
          Samuel Abram (profile), 6 Nov 2020 @ 4:32am

          Re:

          People who think the public domain is the “death of culture” or whatever couldn’t be more wrong. The public domain is where culture thrives — both in distribution and inspiration. To destroy or malign the public domain is to attack the place where culture lives.

          Ironically, the best example to prove this point home is Disney, seeing as their most popular works are remixes of Public Domain stories (Yes, even Frozen, which is adapted from Hans Christian Andersen's The Ice Queen).

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 6 Nov 2020 @ 6:03am

            Re: Re:

            We don't even have to look at direct adaptations. If copyright were held for eternity, as some people apparently believe, the anything that remotely resembled the hero's journey, traditional folklore or Homer's Odyssey could immediately be sued for plagiarism. Which is at least 80% of Hollywood's output...

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 6 Nov 2020 @ 6:05am

              Re: Re: Re:

              Oh, and the other 20% is probably covered by Shakespeare's estate...

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 6 Nov 2020 @ 8:38am

                Re: Re: Re: Re:

                Funnily enough,Shakespeare's works are themselves riddled with plagiarism. Think Pyramus and Thisbe, used in A Midsummer's Night Dream and the basis of Romeo and Juliet.

                reply to this | link to this | view in chronology ]

                • icon
                  PaulT (profile), 6 Nov 2020 @ 12:51pm

                  Re: Re: Re: Re: Re:

                  True, but that's kind of the point... no matter how far back you go there's someone who has done something you could be sued for if copyright was as infinite as some seem to want. The public domain is vital to a functioning culture.

                  reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 9 Nov 2020 @ 1:08am

            Re: Re:

            "Ironically, the best example to prove this point home is Disney, seeing as their most popular works are remixes of Public Domain stories..."

            The same way most fantasy/sfi-fi works are adaptations of long-standing pre-existing mythos. Star Wars is nothing more than a refurbished retelling of the Arthur saga, for instance. Hell, there was a time you couldn't read or watch a fantasy epic anywhere where the central theme wasn't a wise old wizard handing a young farmboy a magic sword so he could go confront his fallen-to-evil father.

            reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 Nov 2020 @ 10:31pm

    Won't someone think of the billable hours and parasites?

    Well, lemme say that I am just so glad that copyright not only exists but has a duration lasting decades after the death of the creator, as I can't possibly imagine how the brilliant creativity displayed by the estate of a long dead author could have possibly existed without the protection of The Almighty Copyright.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Nov 2020 @ 9:13am

      Re: Won't someone think of the billable hours and parasites?

      Who cares about billable hours? If copyrights expire, how are corrupt politicians going to raise funds to get re-elected. How will they feed their families. Oh the humanity! Think of the children!!!

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 6 Nov 2020 @ 12:52pm

        Re: Re: Won't someone think of the billable hours and parasites?

        "Who cares about billable hours?"

        The lawyers convincing the Doyle estate that this is a good use of their time and money?

        reply to this | link to this | view in chronology ]

  • identicon
    Crafty Coyote, 6 Nov 2020 @ 6:34am

    And within five years, every aspect of Sherlock Holmes will be PD. Why not just drag this out until 1 January 2023, and then have the judge declare the whole case invalid because the character is wholly public domain by the time he hears the case?

    reply to this | link to this | view in chronology ]

  • icon
    Wronski Feint (profile), 8 Nov 2020 @ 3:49pm

    Mary Russell novels

    Interesting the estate hasn't gone after another reasonably successful 'holmesian' author, Laurie R. King ( https://openlibrary.org/authors/OL20985A/Laurie_R._King ). These novels take up with Holmes after he retires to beekeeping. Lots of emotion here - Holmes falls in love with his young protégé (not Watson) and eventually marries her. Not too many dogs, though. Any why wait for Netflix, both authors (the other being Nancy Springer who wrote the 'Enola' novels) published well before 2014 - before copyright ended for the majority of the books? I deduce there is a financial consideration involved.

    reply to this | link to this | view in chronology ]

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