Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.

Tuesday, February 9, 2021

Netflix's 'Enola Holmes' tangles with family copyright

Brown (image by Gage Skidmore 2017 CC BY-SA 2.0)
I quite enjoyed the film Enola Holmes, released on Netflix in 2020, a welcome respite from #QuarantineLife.  Stranger Things sensation Millie Bobby Brown was delightful as the lesser known teen sister of the super-sleuth Sherlock, played with rich arrogance by Henry Cavill.  I did not know then that the movie was based on a YA book series, by fantasy writer Nancy Springer, dating to 2006. 

The Arthur Conan Doyle estate seemed content to let Springer go about the quiet business of spin-off fan fiction, but got its hackles up when Netflix got into the game.  The copyright picture behind Sherlock Holmes is complicated: one might say, a puzzle to be solved.  Some of the works have fallen into the public domain and some have not, and the matter is further complicated by a U.S. copyright regime that protects copyright a full generation longer than British law.

The Doyle estate sued Springer and Netflix in federal court in New Mexico in June for copyright and trademark infringement.  The estate's U.S. licensing representative lives in Santa Fe, an attorney explained to the Las Cruces Sun News.  The case, Conan Doyle Estate Ltd. v. Springer (D.N.M.), was dismissed in December upon stipulation, suggesting the parties reached a settlement.

Claims of copyright in fictional characters are always dicey, because they press the limits of the doctrinal dichotomy in copyright law that only fixed representations, and not ideas, may be protected by copyright.  A character has one foot fixed in a tangible medium of expression, as the law requires, and, at the same time, has one foot in the wind of idea.  In the instant case, the plaintiff advanced one remarkable theory to bolster its position.

The plaintiff suggested that Arthur Conan Doyle in fact authored two distinct versions of the Sherlock Holmes character, and that the fictional Holmes universe created by Springer and Netflix employed specifically the latter incarnation—which, suitably for the plaintiff's case, remains copyrighted.  The complaint explained that before WWI, Holmes was famously "aloof and unemotional," quoting Watson from "The Adventure of the Greek Interpreter" on Holmes's "deficien[cy] in human sympathy," "aversion to women," and "disinclination to form new friendships."  Then:

All of this changed. After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.

Conan Doyle made the surprising artistic decision to have his most famous character—known around the world as a brain without a heart—develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion. He began to respect women.

Thus, the complaint posits, Enola Holmes, the story of Sherlock's sister, a figure long marginalized but now primed for redemption, is derivative specifically of post-WWI Sherlock Holmes—©.

Despite the dismissal, you still can enjoy untangling the skein of intellectual property claims in Conan Doyle Estate v. Springer with Alice Chaplin, writing on February 4 for A&L Goodbody's Ireland IP and Technology Law Blog.  Then solve a mystery with Enola Holmes on Netflix.

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