Carter Ostrowski, Associate Member, University of Cincinnati Law Review
This past July, Detective Sherlock Holmes’ feelings became the subject of a copyright lawsuit. Sherlock was created by the late Sir Arthur Conan Doyle and is known both for his superior powers of observation and lack of emotional attachment. However, Doyle’s estate (“the Estate”) claims that Doyle humanized his detective by making Sherlock warmer and capable of friendship in his final ten stories. Because these ten stories are still protected under copyright law, the Estate alleges that Netflix’s Enola Holmes and the novels from which it originates infringe those copyrights by using a version of Sherlock that displays warmth towards his younger sister Enola. Part II of this article will provide a brief overview of United States copyright law, especially as it pertains to the protection of literary characters. Part III will breakdown the claims raised by the Estate to protect a Sherlock with feelings. Part IV will evaluate the copyrightability of Sherlock’s emotional developments and present a case as to why the Estate’s claims are not likely to be successful. Finally, Part V will emphasize why the feelings of Sherlock specifically are not likely to be copyrightable.
II. Characters and Copyright
United States copyright law governs “original works of authorship fixed in any tangible medium of expression,” such as books, music, photographs, and computer programs. Copyrights prohibit the copying of original works and exist to encourage the spread of knowledge. In exchange for sharing their works with the public, authors, artists, and programmers are given legal protection over their works for a limited time.
For a work to be copyrightable, it must be an original work by the author. To be original, a work must not be plagiarized from another and must possess “at least some minimal degree of creativity.” Although the creativity threshold is extremely low, there are a few categories of content that do not meet this standard. For example, facts are not copyrightable. While someone can be the first to discover a fact, it is not considered to be original because it has always been in existence. Similarly, ideas, as opposed to expressions, are not copyrightable. An idea can be described as an artist’s decision to paint stripes on a wall; anyone is free copy his idea, but they cannot copy the precise colors, size, and arrangement of the stripes that make up the artist’s expression of his idea. In the context of fictional novels like Sherlock Holmes, ideas and expression fall more on a spectrum. The idea-end of the spectrum consists of scènes à faire — stock scenes like navigating through a labyrinth or generic characters like an acne-covered teenager. Generic scenes and characters shift toward the expression-end of the spectrum as they become distinctive; the more unique the literary element, the more likely it is to be original and therefore copyrightable.
The copyrightability of characters is closely tied to the idea-expression spectrum. Judge Learned Hand wrote, “it follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” To evaluate how developed a character is, courts have weighed descriptions, traits, histories, and even the depth of a character’s relationships with other characters in the fictional work. James Bond is an example of a developed character. The Central District of California found that Bond’s “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; [and] his sophistication” made him a distinctive, copyrightable character. Although there are other tests to determine the copyrightability of characters, Judge Hand’s test is used in the district where the current lawsuit is pending.
III. Protections and Claims over Sherlock Holmes
Sherlock Holmes is a fictional detective that was introduced to the world in Sir Arthur Conan Doyle’s 1887 novella, A Study in Scarlet. Sherlock became known for his superior powers of observation and his “true cold reason which [he] place[d] above all things.” It is the pairing of brilliance and coldness that makes Sherlock a distinctive and copyrightable character. The idea of a genius detective is generic, but that genius combined with a deficiency in human sympathy, an aversion to women, and a disinclination to make friends produces a character with depth and individuality. However, even though Sherlock is a copyrightable character, the copyright protection over Doyle’s works that were published between 1887 and 1922 expired as early as 1946 and as late as 1997.
Once a copyright expires, the work it protected enters the public domain. A work in the public domain belongs to the public and can be freely copied. Copyright expiration becomes more complicated when applied to series, such as the various adventures of Sherlock Holmes. When the first story in a series enters the public domain, the subsequent stories do not also lose their copyrights. These stories are considered derivative works and have their own copyright protections. However, derivative works can only receive copyright protection over the elements of the story original to the derivative work. For example, Doyle’s final ten Sherlock stories were published from 1923 to 1927. Because of the 1998 Copyright Term Extension Act, these final ten works enter(ed) the public domain between 2018 and 2022. Therefore, even though all of Doyle’s stories written before 1923 were in the public domain by 1997, any element original to his 1923 to 1927 stories would still have been protected until at least 2018.
Doyle’s content from this time period is the subject of the Estate’s pending copyright lawsuit against Netflix’s Enola Holmes and the novels from which the film was adapted. The Estate claims that Doyle began to humanize Sherlock in his final ten stories and that the Enola Holmes novels written between 2006 and 2010 copy that humanized version of Sherlock. Because Doyle’s final ten works were still under copyright protection at that time, the use of material original to the final ten Sherlock stories could infringe the Estate’s copyrights.
The Estate alleges that Netflix and Nancy Springer, the author of the Enola Holmes novels, copied a warmer version of Sherlock that was original to Doyle’s final ten stories. For example, in Doyle’s 1924 story, The Three Garridebs, Sherlock begs his partner Dr. Watson to assure him that Dr. Watson was not hurt after being shot. The Estate claims that these words exemplify a previously unseen element of Sherlock’s character — genuine concern for a friend’s well-being. Sherlock’s concern for his partner is then seen in Springer’s 2008 novel, The Case of the Bizarre Bouquets, in which Sherlock’s voice “tightened to the breaking point” over the possibility that Dr. Watson was murdered. Sherlock’s expanded emotional capacity is also on display in Springer’s 2007 novel, The Case of the Left-Handed Lady. In The Case of the Left-Handed Lady, Sherlock is described as “distraught” and “unable to eat or sleep” over the disappearance of his mother and sister. Even though these examples could constitute copyright infringement of Doyle’s final ten Sherlock stories, Sherlock’s feelings in these stories must first be copyrightable.
It is unlikely that Sherlock’s character traits introduced in Doyle’s final ten stories are copyrightable. Literary characters like Sherlock must be distinctive to be copyrightable. Unfortunately for the Estate, Doyle’s late changes to Sherlock’s character might actually push Sherlock toward the idea-end of the character spectrum and into scènes à faire territory.
Sherlock’s identity is built around his brilliant mind working in tandem with his need for rational thinking untethered by emotional baggage. By humanizing Sherlock and giving him emotional attachments to others, he may be seen as any other intelligent detective through the eyes of copyright law. In any fictional mystery, there would be no story to tell without at least one gifted mind to solve a puzzle that is otherwise unsolvable by the lay police officer. For example, Criminal Minds is a television series about a team of FBI agents in the BAU, or Behavioral Analysis Unit. In Criminal Minds, the BAU agents are highly trained in criminal psychology; by examining a crime scene, the agents are able to gather far more information about the criminal than the local police. The agents then use their superior observations to extensively narrow down their list of potential suspects and catch the criminal. There would be no story to tell if the team were ordinary agents; by giving the agents a heighted knowledge of criminal psychology to solve the mystery, the series gains value. Characters with a heightened intellect are generic in mysteries because they are needed to solve the puzzle. In the case of Sherlock, without his coldness he is simply a genius detective with no distinctive qualities. Therefore, Sherlock becomes an uncopyrightable stock character when given emotional attachments because it destroys one of his major identifying characteristics.
In response, the Estate may argue that Sherlock’s later developed emotional capacity does not completely destroy his distinctive coldness. However, this rebuttal inadvertently equates Sherlock with the cliché cold or cynical character that either secretly cares about those closest to him or that develops a fondness for those closest to him over time. When Doyle gave Sherlock the ability to express his concern about others it did not make him more distinctive, it made him human, and a human expressing human emotion is not original. Because Sherlock’s feelings do not add to his distinctiveness and because Sherlock’s development from a cold character into a warmer one is a common character arc, Sherlock’s feelings in Doyle’s final ten stories are not copyrightable.
Ultimately, it is unlikely that the emotional elements added to Sherlock’s character in Doyle’s final ten stories will warrant copyright protection. Although the original elements of derivative works are copyrightable, the court is likely to find that the alleged changes to Sherlock’s character are not original because they make him more generic, not more distinctive. Therefore, because Sherlock’s feelings are not likely to be copyrightable, the Estate will be unable to succeed on its infringement claims.
 Complaint for Injunction and Damages ¶¶ 1-4, No. 1:20-cv-00610.
 Id. ¶¶ 1, 18.
 Id. ¶ 20.
 17 U.S.C. § 102 (1990).
 Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1261 (11th Cir. 2001).
 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).
 Id. at 358.
 Id. In Feist, the Supreme Court held that even factual compilations “that contain absolutely no protectible written expression” can meet the creativity minimum so long as the facts included were chosen for a reason, placed in an intentional order, or arranged so that they can be used effectively by readers. 499 U.S. at 348.
 Feist, 499 U.S. at 356.
 Id.at 361.
 Suntrust, 268 F.3d at 1264.
 2 William F. Patry, Patry on Copyright § 4:31(1st ed. 2020).
 Suntrust, 268 F.3d at 1266.
 Clark v. Dashner, No. 14-00965 KG-KK, 2016 WL 4169223, at *13 (D.N.M. June 30, 2016).
 Suntrust, 268 F.3d at 1266.
 Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
 Suntrust, 268 F.3d at 1266-1267.
 Daniels v. Walt Disney Co., 958 F.3d 767, 771 (9th Cir. 2020).
 Clark, 2016 WL 4169223, at *13. The other major test for determining the copyrightability of literary characters is whether the character “really constitutes the story being told” or is merely a vehicle to tell the story. Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954). However, the high bar set by the test make it less popular “since few characters so dominate the story such that it becomes essentially a character study.” Daniels v. Walt Disney Co., 958 F.3d 767, 774 (9th Cir. 2020).
 Complaint for Injunction and Damages ¶ 3, No. 1:20-cv-00610.
 Id. ¶ 19.
 Id. ¶ 18.
 Copyright Act of 1976, 17 U.S.C. § 303 (1976) (amended 2012). The Copyright Act of 1976 increased the total copyright duration from 56 years to 75 years. However, for a work to receive the additional 19 years of protection, its copyright must have still been valid on January 1, 1978. Therefore, the copyright of a work published in 1921 would expire in 1977 and not receive the additional 19 years of protection, whereas the copyright of a work published in 1922 would not expire until sometime in 1997 because it would have still been in effect on January 1, 1978. Id.
 Suntrust, 268 F.3d at 1262.
 Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496, 497 (7th Cir. 2014).
 Id. at 501.
 Id. at 497.
 Complaint for Injunction and Damages ¶ 27, No. 1:20-cv-00610.
 Id. ¶ 2.
 Id. ¶ 33.
 Id. ¶ 30.
 Id. ¶ 33.
 Id. ¶ 31.
 Feist, 499 U.S. at 361. There are two elements necessary to establish copyright infringement: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Id.
 Nichols at 121.
 Complaint for Injunction and Damages ¶ 18, No. 1:20-cv-00610.
 This cold-to-warm character arc is often referred to as the sugar-and-ice personality trope. Other characters that fall into this category include Severus Snape from Harry Potter, Mr. Darcy from Pride and Prejudice, and Temperance Brennan from Bones. Sugar-and-Ice Personality, https://tvtropes.org/pmwiki/pmwiki.php/Main/SugarAndIcePersonality (last visited Oct. 30, 2020).