Who owns Sherlock? Enola Holmes and the case of the Conan Doyle copyright dispute

Sherlock Holmes is facing legal action, and not because he’s been keeping the neighbours awake with his all-night violin practice. The producers of the new film Enola Holmes, which stars Henry Cavill as Sherlock and Millie Bobby Brown as his teenage sister, are the subject of a lawsuit - as is Netflix, which owns the distribution rights.

The lawsuit has been filed by Conan Doyle Estate Ltd (CDE), which represents certain members of the family of Holmes’s creator, Sir Arthur Conan Doyle (1859-1930). CDE claims that the film infringes its copyright.

What’s the issue, you may ask: surely an author’s work is either in copyright or it isn’t? In which case, I congratulate you on being lucky enough never to have had to read up on US copyright law. Add to the copyright complications the fact that there is some dispute over who owns exactly what percentage of the Conan Doyle rights, and you’ll see we’re dealing with a complex tale - one that takes in, among other topics, family in-fighting, literary criticism, Sonny Bono and Mickey Mouse.

In the UK it’s simple: copyright expires on the 70th anniversary of the author’s death, and so all of Conan Doyle’s works, and the character of Sherlock Holmes, have been in the public domain since 2000. But in the US it is possible to apply for a copyright that lasts for 95 years  from the date of publication of the work in question.

We tend to associate Sherlock Holmes with the pea-souper fogs of Victorian London, but he was still sleuthing well into the 1920s. Nevertheless the first Holmes novel, A Study in Scarlet, published in 1887, is obviously safely out of copyright, and so one would have thought the character of Sherlock Holmes is too.

Not entirely. Out of the Sherlock Holmes canon - four novels and 56 short stories - a final handful of stories published in the 1920s are still in copyright. Conan Doyle Estate argues that no film or book with Holmes as a character can make use of any character traits or details from those few copyrighted stories without its permission. And, according to CDE, Holmes does show markedly different character traits in those stories.

Conan Doyle was deeply affected by the First World War; his son Kingsley and brother Innes, exhausted by their wartime service, both died of pneumonia within a few months of the Armistice. The tragedies also fostered his burgeoning interest in spiritualism. CDE argues that his writing changed too: there was more overt emotion, and Holmes became kinder, developing a previously unmentioned fondness for dogs and a more respectful attitude towards women.

As CDE’s attorney Benjamin Allison puts it in the Complaint for Injunction and Damages submitted to the New Mexico District Court, Holmes had previously been “famous for being aloof and unemotional”; but in the post-War stories “Holmes needed to be human. The character needed to develop human connection and empathy”.

The complaint quotes a passage from one of the copyrighted stories, “The Three Garridebs”, in which the evil “Killer” Evans shoots Dr Watson in the leg. “You're not hurt, Watson? For God’s sake, say that you are not hurt!” cries Holmes.

Watson, as narrator, tells us: “It was worth a wound - it was worth many wounds - to know the depth of loyalty and love which lay behind that cold mask. The clear, hard eyes were dimmed for a moment, and the firm lips were shaking. For the one and only time I caught a glimpse of a great heart as well as a great brain. All my years of humble but single-minded service culminated in that moment of revelation.”

The new film is based on a series of “Enola Holmes” novels by the American author Nancy Springer, and the complaint quotes three passages from that series that suggest Holmes is developing a more emotional side of his personality, including one in which “[his] voice … tightened to the breaking point” when Watson goes missing. The idea that Holmes would display real emotion over Watson’s well-being is copyrighted, goes the argument.

Ms Springer, who published the first Enola Holmes novel back in 2006, is named as a defendant in the case. “The Estate did not sue Ms Springer when her novels were released because it has a soft spot for writers. At a certain point, however, reaping where one has not sown becomes too much to overlook, and the Estate felt that a movie franchise using its material without permission was not appropriate,” Mr Allison told Forbes magazine.

The complaint does not cite any specific offending details from the new film, but argues that “As a derivative of the Enola Holmes Mysteries it copies the same elements from Conan Doyle’s Copyrighted Stories that Defendant Springer copied in her book series”.

One could offer in defence of CDE’s argument a remark that Henry Cavill made in an interview with the Radio Times this week: “Our Sherlock is different from what we may see as the traditional misogynistic genius. Enola softens Sherlock and opens up his heart, which we haven't really had access to in other renditions.” We will see whether the court decides that a soppy Sherlock is under copyright.

I must admit I do remember that as a boy, ploughing my way through my Dad’s fat red omnibus edition of the complete Sherlock Holmes short stories, I was moved by Holmes’s uncharacteristic concern about Watson in The Three Garridebs. But although his default attitude to Watson is sardonic, he clearly does care for his welfare. In The Adventure of the Empty House (1903, so very much out of copyright), Holmes is dismayed when he causes Watson to faint after popping up when he’s been assumed to be dead for several years: “I owe you a thousand apologies. I had no idea that you would be so affected … Are you sure that you are really fit to discuss things? I have given you a serious shock by my unnecessarily dramatic reappearance.”

The complaint cites one early story, “The Greek Interpreter”, in which Watson describes Holmes as “a brain without a heart”. But in the very next story, The Naval Treaty (1893), there is the famous passage in which Holmes waxes lyrical about the beauty of a rose - “Its smell and its colour are an embellishment of life, not a condition of it” - and cites flowers as proof of the existence of divine providence.

Conan Doyle was famously not much concerned about continuity (characters’ names change from one story to the next, Watson’s war wound travels from his shoulder to his leg) and although he sometimes tells us in the early stories that Holmes is cold and unfeeling and hates women, there are also moments that contradict these assertions. You can see the same sort of thing in Doyle’s portrayal of Lord John Roxton in The Lost World. Doyle tells us that “Like most men of action, he is laconic in speech,” but as Doyle’s biographer Hesketh Pearson points out, “He then exhibits Roxton reeling off speeches by the yard, his instinct having prompted him to show the man of action as he always is in real life - a windbag”.

It is difficult, in other words, to establish what exactly a fictional character’s personality is actually like. Nevertheless, Conan Doyle Estate has had some success in this field in the past. In 2015 CDE sued the makers of the film Mr Holmes, starring Sir Ian McKellen as the elderly Sherlock, on much the same grounds; Mitch Cullin, whose 2005 novel A Slight Trick of the Mind was the basis of the film, was also named as a defendant.

As well as featuring a Holmes who becomes more emotional and empathetic as he ages, the novel repeated the copyrighted details that in old age Holmes lives in a lonely farmhouse with a path down to the sea and a view of chalk cliffs, and that in later life Dr Watson lived in Queen Anne Street. In addition, the phrasing of two short passages in Cullin’s novel bear a close resemblance to passages in the copyrighted stories.

When the lawsuit was filed Cullin described it as “an extortion attempt, plain and simple,” and said that the alleged infringements added up to less than a page of his novel. In the event, Conan Doyle Estate reached a settlement with Miramax, who distributed the film, and with the publisher of Cullin’s novel (the e-book version of the book now acknowledges “use of copyrighted material by kind permission of the Conan Doyle estate”.

These are the only two instances in which Conan Doyle Estate has taken legal action for infringement of copyright. But there is a booming market for new Sherlock Holmes novels, stories, pastiches and films, and CDE has approached other authors and film-makers asking to receive fees and acknowledgements.

This prompted Leslie Klinger, an American lawyer and writer who edits anthologies of new Sherlock Holmes stories, to file a copyright lawsuit in 2013, claiming that the character of Sherlock Holmes was in the public domain. “I'm asking the Court to put a permanent stop to this kind of bullying,” Klinger said at the time. “Holmes and Watson belong to the world, not to some distant relatives of Arthur Conan Doyle.”

CDE argued, as ever, that Holmes was a “round”, developing character rather than a “flat” character. It was reported that CDE’s lawyer “repeatedly … dramatised the concept of a ‘round’ character by describing large circles with his arms.” As literary criticism in a legal context goes, It’s all a long way from the dignity of EM Forster testifying on the artistic merits of Lady Chatterley’s Lover.

The court, and subsequently the US Court of Appeals, rejected CDE’s argument and found for Klinger. “The Doyle estate’s business strategy is plain: charge a modest licence fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand,” wrote the Court of Appeals judge. “It’s time the estate, in its own self-interest, changed its business model.” Despite the judge’s opinion, there is no legal restriction on CDE’s activities.

As usual, the lawyers are the real winners. It was the 1998 US Copyright Term Extension Act that prolonged the period for which a work could be considered under copyright. It’s known as the Sonny Bono Act, in honour of the pop star-turned-congressman who was a vigorous campaigner for copyright extension; (he thought it should last indefinitely, andthe Act was passed a few months after his fatal ski-ing accident.

It’s also been nicknamed “the Mickey Mouse Protection Act”, because it was seen as a way of kicking the can for a bit before deciding what to do when copyright expires on the first Mickey Mouse cartoon, Steamboat Willie (expiry is now due to take place in 2024). Sherlock is only the first of many fictional characters with long careers who are going to keep the courts busy in the future.

Copyright issues are important. In an era in which new novels are often pirated the moment they’re published, we ought to defend the rights of authors to the income generated by their work - and the rights of their children and grandchildren.

It shouldn’t make a difference that, as it happens, Sir Arthur Conan Doyle had no grandchildren - an odd quirk of fate as he had five children. Conan Doyle Estate, according to its website, comprises eight people who were beneficiaries of the will of Conan Doyle’s daughter Jean - among them Richard and Catherine Doyle, who are the children of one of Sir Arthur’s nephews, and Richard Pooley, who is described as Sir Arthur’s “Step Great Grandson”. Not very close relations of the great man, then, but perfectly entitled to get any money that’s owed them.

There is another layer of confusion, however, and here is where it all gets a bit People’s Front of Judea. There is another body called the Sir Arthur Conan Doyle Literary Estate which has spent many years at loggerheads with CDE.

The Literary Estate explains what happened on its website. By 1970, when Conan Doyle and his wife were long dead, his copyrights had been divided equally between three parties: his daughter Air Commandant Dame Jean Conan Doyle, who had been a formidable head of the Women’s Royal Air Force, and the widows of two of his sons.

These three women were constantly squabbling in court over what could and couldn’t be done with Conan Doyle’s material. Eventually one of the widows, Nina Mdivani, bought out her two sisters-in-law. A woman of expensive tastes, she rapidly squandered the money she made from her ownership of the entire copyright, and was obliged to sell it to the family of the New York movie mogul Sheldon Reynolds.

In 2014 an excitable 74-year-old US heiress called Andrea Plunket popped up to claim that she owned the rights (the late Sheldon Reynolds was one of her four husbands) and announced that she was going to sue the makers of the TV shows Sherlock and Elementary for infringement of her copyright and trademarks. As the Literary Estate’s website tactfully puts it, “Andrea Plunket became gravely ill in December 2014” and other members of her family are now in charge of running the Literary Estate, which is clearly trying to improve its image.

But still the disputes rumble on between the Literary Estate and CDE (the latter is sniffily described on the Literary Estate’s website as “the assorted relatives that had assembled after the death of Dame Jean Conan Doyle”). The main detail they argue over is whether Dame Jean bought back her third share of the copyrights before her death in 1997. Even if she did, that would still mean that CDE only owns a third of the copyrights to the Literary Estate’s two thirds.

One can see why people who use the character of Holmes in their books or films might be confused about who exactly they owe money to and how much. Both the Literary Estate and CDE have claimed at various times to have ownership of the Sherlock Holmes trademark as well as the copyrights. One would hope that these two competing estates might thrash out some sort of partnership, but negotiations have so far been unsuccessful.

On its website the Literary Estate expresses dismay that Sir Arthur’s  legacy “has been the object of strife, jealousy, trickery, and heartache to this day”. One wonders what the great man, whose works so fervently promote the importance of justice and fair play, would make of it all. Perhaps only one character in the history of literature has a brain big enough to untangle this knot. And he could only say of the Tangled Case of the Literary Legacy what he said of Miss Helen Stoner’s narrative of the Speckled Band: “These are very deep waters”.