THE UNRESOLVED MYSTERY: CONTESTED SCOPE OF COPYRIGHT PROTECTION OF SHERLOCK HOLMES
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THE UNRESOLVED MYSTERY: CONTESTED
SCOPE OF COPYRIGHT PROTECTION OF
SHERLOCK HOLMES
JAN DI LEE*
Abstract: Sherlock Holmes, written by Sir Arthur Conan Doyle, is one of
the most popular and loved series of all time. The Sherlock Holmes series
has inspired numerous films and books that continue to be produced today.
Sherlock Holmes has become more than a fictional character, but an icon
and a subject of study and controversy. With numerous films and literature
being produced with the elements from Sherlock Holmes, issues of
copyright infringement frequently arise. This essay looks at copyright
lawsuits surrounding Sherlock Holmes and discusses the contested scope of
the public domain. This essay argues that human emotions and personality
traits that do not constitute the original character’s unique identity are within
the public domain for practical and policy reasons.
INTRODUCTION
Sir Arthur Conan Doyle published the first Sherlock Holmes story in 1887
and wrote a total of fifty-six short stories and four novels until his last publication
in 1927.1 The copyrights to these literary works expired in Canada in 1980 and in
the United Kingdom in 2000. 2 In the United States, all but the last ten stories of
Conan Doyle’s Sherlock Holmes series remain protected under the U.S. Copyright
Term Extension Act of 1998. 3 The 1998 Copyright Term Extension Act extended
the copyright in works that were still in their renewal term at the time that the Act
became effective for additional twenty years.4 As a result, the 1998 Copyright Term
Extension Act did not apply to the earlier works of Sherlock Holmes that were
published before January of 1923.5 Like most works published before 1923, earlier
Sherlock Holmes stories’ copyright expired on December 31, 1997 and these works
__________________________________________________________________
Copyright © Boston College Intellectual Property & Technology Forum, Jan Di Lee
*
J.D. Candidate, Boston College Law School (expected 2023) B.A., International Studies and
Spanish, University of Michigan (2018).
1
Jessica L. Malekos Smith, Note, Sherlock Holmes & the Case of the Contested Copyright, 15 CHI.-
KENT J. INTELL. PROP. 537, 538 (2016).
2
Id. at 538.
3
See 17 U.S.C. § 304 (d) (2002) (applying to the last ten stories of Sherlock Holmes series that were
published after 1923); Id. at 539.
4
See 17 U.S.C. § 304 (d) (2002) (creating circumstances where only a portion of literary series is
affected by the Copyright Term Extension Act).
5
See Societe Civile Succession Guino v. Renoir, 549 F.3d 1182, 1189–90 (9th Cir. 2008)
(concluding that under the 1976 Copyright Act and the 1998 Copyright Term Extension Act, works
published before 1923 are generally considered part of the public domain).
12 Boston College Intellectual Property & Technology Forum [BC IPTF
are now in the public domain, meaning these works are available for free public
use. 6 The extent to which the characters in Sherlock Holmes are in the public
domain is a matter of controversy, however, because ten remaining stories of
Sherlock Holmes and Dr. Watson remain copyright protected.7 The last two stories
of these ten were written in 1927 and their copyright will expire in 2022, which is
ninety-five years after the original dates of publication.8
Last year, Netflix released a film about Enola Holmes, Sherlock Holmes’
fictional sister, based on Nancy Springer’s Enola Holmes Mysteries novels.9 Enola
Holmes is a fictional character who does not appear in Conan Doyle’s original
series, but the Conan Doyle Estate filed a lawsuit against Netflix, Nancy Springer,
and Penguin Random House, the publisher of Springer’s novels. 10 The Estate
claimed that Springer used warm and kind aspects of Sherlock Holmes, whose
transformation from aloof and unemotional person to more warmhearted and
respectful character only appears in Conan Doyle’s later works that are under the
copyright protection. 11 The Estate specifically points to Sherlock Holmes’
emotional despair at the disappearance of his sister and his cordial friendship with
Dr. Watson as Sherlock Holmes’ character transformation. 12 Six months later,
however, the Estate agreed to dismiss its claims, and both parties jointly filed a
stipulation to dismiss the claims with prejudice. 13 Although the recent case was
quickly resolved, the controversy over what aspects of Sherlock Holmes’ character
is in the public domain has been an ongoing issue.14
This essay looks at the copyright infringement cases involving the Estate to
address the fine lines of the public domain for literary characters.15 Further, this
essay argues that general human emotions and traits that do not constitute or
contribute to the original character’s unique identity are beyond copyright
__________________________________________________________________
6
See Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 497 (7th Cir. 2014) (explaining that when a
copyright term expires, the work enters into the “public domain” which means it can be sold or
copied without a license).
7
See Smith, supra note 1, at 539 (pointing to the later Sherlock Holmes stories under copyright
protection).
8
See Smith, supra note 1, at 541 (providing specific copyright expiration dates of the later series
that secured a copyright term of 95 years with the Sonny Bono Copyright Term Extension Act).
9
Kyle Jahner, Netflix Sherlock Holmes’ Sister Movie Faces Copyright Suit (1), BLOOMBERG LAW
(June 24, 2020), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-
law-news/XFHRNNVK000000?bna_news_filter=ip-law#jcite.
10
Id.
11
Complaint for Injunction and Damages at 8–10, Conan Doyle Est. Ltd. v. Springer, No. 1:20-cv-
00610 (D.N.M. June 23, 2020).
12
Id.; See Jahner June Article, supra note 9 (arguing that Sherlock Holmes’ character transition
from an indifferent to a caring person in Enola Holmes infringes the copyright of the last ten stories
of the of the Sherlock Holmes).
13
Blake Brittain, Netflix, Conan Doyle Estate Resolve ‘Enola Holmes’ Dispute (2), BLOOMBERG
LAW (Dec. 21, 2020), https://news.bloomberglaw.com/litigation/netflix-conan-doyle-estate-agree-
to-drop-enola-holmes-case?context=search&index=4.
14
Elizabeth L. Rosenblatt, The Adventure of the Shrinking Public Domain, 86 U. Colo. L. Rev. 561,
563 (2015).
15
See infra notes 18–20 and accompanying text (discussing two cases in which the Estate is
involved).2021] Copyright Protection of Sherlock Holmes 3
protection for practical and policy reasons.16 Emotions and traits that appear in the
last ten stories should not be subject to copyright protection if they do not constitute
or contribute to the Sherlock Holmes’ unique identity.17 Part I discusses the recently
resolved case of “Enola Holmes” and discusses the possible reasons for the
dismissal of the claims to illustrate practical difficulty of claiming copyright
protection of common emotions and traits that are not essentially contributing to
the unique identity of the literary character.18 Part II analyzes a previous copyright
infringement case filed by the Estate and uses the case to provide a policy reason
in support of broadening the public domain to include personality traits that are not
inherent to the character’s unique identity.19 Part III introduces a hypothetical case
to help delineate the fine lines of copyright infringement and demonstrate that
human emotions and characteristic that are not essential to forming the unique
identity of the character are within the public domain.20
I. WHO IS ENOLA HOLMES: CONAN DOYLE ESTATE LTD. V. SPRINGER
In June 2020, in Conan Doyle Estate Ltd. v. Springer, the Estate filed a
complaint against Netflix, Nancy Springer, and Penguin Random House for
copyright infringement in Netflix’s newly released film, “Enola Holmes.”21 The
movie is based on Nancy Springer’s Enola Holmes Mysteries, which were
published between 2006 and 2010. 22 Section A of this part examines the complaint
filed by the Estate.23 Section B discusses potential reasons for the dismissal of the
case.24
A. Why Did the Conan Doyle Estate File the Suit
The Estate claimed that Enola Holmes Mysteries copied elements of
Sherlock Holmes that only begin to appear in the last ten stories, which are still
copyright protected. 25 The last ten stories of Sherlock Holmes remain copyright
__________________________________________________________________
16
See infra notes 25–42 and accompanying text (supporting the argument on practical and policy
grounds).
17
See infra notes 32–37 and accompanying text (arguing that traits that are not essential to the iconic
identity of the character should be in the public domain).
18
See discussion infra notes 21–37 and accompanying text (discussing the initial filing and
dismissal of Conan Doyle Estate Ltd. v. Springer).
19
See discussion infra notes 38-67 and accompanying text (analyzing the court’s holding in Klinger
v. Conan Doyle Estate Ltd.).
20
See discussion infra notes 68–85 and accompanying text (providing a hypothetical case of
copyright infringement to delineate the lines of public domain).
21
Complaint for Injunction and Damages at 8–10, Conan Doyle Est. Ltd. v. Springer, No. 1:20-cv-
00610 (D.N.M. June 23, 2020).
22
Id.
23
See discussion infra notes 25–31 and accompanying text (introducing disputes around “Enola
Holmes”).
24
See discussion infra notes 32–37 and accompanying text (conjecturing reasons for the dismissal
of the case and arguing for a clear line of public domain).
25
Jahner June Article, supra note 9.4 Boston College Intellectual Property & Technology Forum [BC IPTF
protected because they were published after January 1, 1923. 26 The issue arises
from the soft and affectionate presentation of Sherlock Holmes in the “Enola
Holmes” Netflix series.27 The Estate claims this transformation of Sherlock Holmes
appears in the later stories that are still copyright protected. 28 In Enola Holmes
Mysteries, Sherlock Holmes is despondent when his sister Enola Holmes
disappears and builds a warm friendship with Dr. Watson. 29 The emotional
attachment and affection Sherlock Holmes grows towards his sister and Dr. Watson
is a huge leap from Sherlock’s character in the original stories of Sherlock Holmes
where he is described as a cold, indifferent person who detaches himself from
cordial relations.30 This dramatic transformation of Sherlock Holmes’ character,
according to the complaint, appears only in the later copyright protected stories.31
B. Why did the Conan Doyle Estate Dismiss the Suit: Practical Reason
Six months after the Estate filed its complaint, both parties jointly filed a
dismissal of the claim.32 Neither side spoke of reasons behind the dismissal, but one
can form conjectures about the reasons for the dismissal.33 A major reason could
be the practical difficulty of distinguishing copyrightable characteristics from
general human traits.34 In fact, Netflix and the filmmakers argue that the Estate is
trying to claim an ownership of general characteristics that are plainly
unprotectable.35 Kindness and warmth are traits that are so basic and common to
humankind that any character could have such traits.36 For this practical reason,
there must be a clear line where emotions and traits that are not inherent to the
unique identity of the character in the original work are in the public domain.37
II. PROCEDURAL HISTORY OF COPYRIGHT CASE INVOLVING SHERLOCK HOLMES:
KLINGER V. CONAN DOYLE ESTATE LTD.
__________________________________________________________________
26
See 17 U.S.C. § 304 (b) (extending copyright protection for works in their renewal term at the
time of the passage of the Copyright Term Extension Act to ninety-five years from the date copyright
was originally secured); see Jessica L. Malekos Smith, Note, Sherlock Holmes & the Case of the
Contested Copyright, 15 CHI.-KENT J. INTELL. PROP. 537, 538 (2016) (noting the last ten Sherlock
Holmes stories were published after 1923).
27
See Complaint at 8–10, supra note 21.
28
Id.
29
Kyle Jahner, ‘Enola Holmes’ Copyright Suit ‘Attempt to Extort,’ Netflix Says, Bloomberg Law
(Nov. 2, 2020), https://news.bloomberglaw.com/ip-law/enola-holmes-copyright-suit-attempt-to-
extort-netflix-says?context=search&index=8.
30
Id.
31
See Jahner June Article, supra note 9 (arguing that the later Sherlock Holmes series introduces
the same changes in Sherlock’s character as seen in “Enola Holmes”).
32
Id.
33
Id.
34
See Jahner November Article, supra note 29 (revealing practical difficulty of distinguishing
general traits as a possible reason for the Estate’s decision to dismiss the case).
35
See id. (reasoning that the Estate must have acknowledged the difficulty of proving its claim).
36
Id.
37
See infra note 67 and accompanying text (supporting the same argument with a policy reason).2021] Copyright Protection of Sherlock Holmes 5
Dispute over which character traits should be considered in the public
domain began long before the recent case. 38 In 2013, Leslie Klinger, an editor of
modern authors whose stories were inspired by Sherlock Holmes, sued the Estate
in the District Court for the Northern District of Illinois, Klinger v. Conan Doyle
Estate Ltd., to seek a declaratory judgment that he could freely use the first fifty
stories of Sherlock Holmes that are in the public domain. 39 His action was in
response to the Estate’s threat to prevent distribution of a book that he and his co-
editor were planning on publishing.40 Section A explains the procedural history of
the case.41 Section B discusses specific areas of dispute and the court’s holding.42
A. Why Did Klinger File the Suit
Leslie Klinger and his co-editor were planning on publishing a book, In the
Company of Sherlock Holmes. 43 They entered into negotiations with Pegasus
Books for the publication and W.W. Norton & Company for distribution of the
book.44 Upon hearing of this project, the Estate told Pegasus to obtain a license to
be legally authorized to publish the book and threatened to prevent the distribution
of the book if Pegasus didn’t comply.45 In response, Pegasus refused to publish the
book until Klinger obtained a license from the Estate, but Klinger sued the Estate
and sought a declaratory judgement allowing him to freely use material from earlier
Sherlock Holmes work, because the copyright had expired. 46 The district court
judge granted Klinger’s motion for summary judgment and issued the declaratory
judgment requested by Klinger. 47 The Estate appealed to the 7th Circuit Court of
Appeals, challenging the judgment on the grounds that the district court had no
jurisdiction.48 Even if there was jurisdiction, the Estate argued that copyright on a
character whose full complexity is not revealed until a later story should remain
under copyright until copyright of the later story expires. 49 The appellate court
affirmed the district court’s judgment.50
B. Why Did the Conan Doyle Estate Lose the Suit
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38
See Rosenblatt, supra note 14, at 565 (indicating that the Conan Doyle Estate has been involved
in other copyright infringement disputes with regards to the characters in Sherlock Holmes).
39
Klinger, 755 F.3d at 497–98.
40
Id. at 498.
41
See discussion infra notes 43–50 and accompanying text (explaining the procedural history and
background of the case).
42
See discussion infra notes 51–67 and accompanying text (discussing the court’s decision and
drawing a new workable line for public domain).
43
Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 497 (7th Cir. 2014).
44
Id.
45
Id. at 498.
46
Id.
47
Id.
48
Id.
49
Id.
50
Id. at 503.6 Boston College Intellectual Property & Technology Forum [BC IPTF
The appellate court rejected both claims by the Estate, but for the purpose
of this essay, only the second claim will be discussed in depth. 51 The Estate claimed
that it was entitled to judgment on the merits because copyright on “complex”
characters like Sherlock Holmes should be protected until the last ten stories fall
into the public domain.52 According to the Estate, the full scope of the character’s
complexity is only revealed in the later stories. 53 The Estate reasoned that authors
may take a long time to complete a character that appears in their earlier work, and
they would be discouraged from further developing the character with creativity if
the copyright on the original character expires. 54 The Estate further argued that only
complete copyright protection of a character would ensure the protection of
incremental character developments that appear in later stories because there exists
no workable standard to determine what aspects of the character is in the public
domain.55
In response to the first argument, the court held that extended copyright
protection would do more harm than good because it would reduce the available
character traits in the public domain and increase the cost of authorship.56 This,
according to the court, would eventually discourage the creativity of subsequent
authors who seek to create derivative works. 57 In determining whether the
subsequent works are validly copyrighted, the court adopted the Second Circuit’s
holding from 1989 in Silverman v. CBS Inc., where a dispute arose over the
copyright for fictional characters in radio scripts. 58 In Silverman, the court held that
“a copyright affords protection only for original works of authorship and
consequently, copyrights in derivative works secure protection only for the
incremental additions of originality contributed by the authors of the derivative
works.”59
In Klinger, the court concluded that the Estate’s second argument “would
be true only if the early and the late Holmes were indistinguishable—and in that
case there would be no incremental originality to justify copyright protection of the
‘rounded’ characters in the later works.” 60 Thus, if the character development of
Sherlock Holmes in the last ten stories of Sherlock Holmes is not readily
distinguishable from the earlier works whose copyright expired, there are no
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51
See id. (setting aside the Estate’s first claim for lack of jurisdiction and focusing on the second
claim on the extension of copyright protection).
52
Id.
53
Id. at 498.
54
Id. at 501.
55
Id. at 502.
56
Id. at 501.
57
Id.
58
Klinger, 755 F.3d at 500; see Silverman v. CBS Inc., 870 F.2d 40, 49–51 (2d Cir. 1989) (providing
the court with a standard on the expansion of copyright protection on derivative works).
59
Silverman, 870 F.2d at 49; see Leslie A. Kurtz, The Methuselah Factor: When Characters Outlive
Their Copyrights, 11 U. Mia. Ent. & Sports L. Rev. 437, 447–48 (1994) (noting that protecting the
copyright of the derivative works depends on the extent of originality distinguishable from the
original work).
60
Klinger, 755 F.3d at 502.2021] Copyright Protection of Sherlock Holmes 7
incremental additions to originality. 61 Then the derivative works would not be
protected by copyright.62 Adopting the holding from Silverman, the court provided
a workable standard to evaluate the copyrightability of the derivative works, but
this standard does not entail a specific guideline to what constitutes incremental
addition.63
In criticizing the Estate’s lack of legal basis for its claimed extension of
copyright protection, the court indicated that such a wide scope of copyright
protection could negatively affect the creativity of subsequent authors. 64 If any
general character trait that appears in the last ten stories of Sherlock Holmes can be
protected under the copyright law as a character development, any instance of
applying such general traits could be used as a basis for a copyright infringement
claim.65 The resulting reduction in scope of public domain would lead to decreased
foundation for creative work.66 Thus, a clear standard should be that a character
development that do not constitute or contribute to the character’s unique identity
in the original work is in the public domain.67
III. HYPOTHETICAL CASE: CONAN DOYLE ESTATE V. JD HOLMES
For further clarification, Section A of this part presents a hypothetical case
of a copyright infringement filed by the Estate against a novel about JD Holmes, an
older sister of Sherlock Holmes that never appears in the original stories.68 This
hypothetical provides an example of using character traits that could constitute a
copyright infringement. 69 Section B explains why elements in the novel are
protected by copyright as part of the Sherlock Holmes character, and their use can
constitute a copyright infringement. 70 Section C discusses the significance of
outlining the clear scope of public domain and its impact.71
A. Why Would the Conan Doyle Estate File a Suit against JD Holmes
__________________________________________________________________
61
See id. (rejecting the Estate’s argument that an entire series have to be copyright protected for the
completion of characters).
62
See id. (revealing the flaw in the Estate’s argument).
63
See id. at 500–01 (pointing to the weakness of the standard the court adopts from Silverman v.
CBS Inc.).
64
See id. at 503 (discussing the policy reason behind the court’s rejection of the Estate’s argument).
65
See id. at 498 (applying the court’s policy reason to the present case).
66
See Rosenblatt, supra note 14, at 590 (demonstrating that potential risk of litigation discourages
authors of derivative works from producing a creative work based on a pre-existing work).
67
Cf. id. at 576–77 (explaining that character’s defining basic traits are established from the
beginning although nuances can be added on by later stories).
68
See discussion infra notes 72–77 and accompanying text (introducing a hypothetical case of
copyright infringement of Sherlock Holmes).
69
See infra note 76 (using status of being paranoid as an example of a character trait that could be
copyright infringement in the hypothetical case).
70
See discussion infra notes 78–82 and accompanying text (explaining why character traits in the
hypothetical case are likely to be outside of public domain).
71
See discussion infra notes 83–85 and accompanying text (discussing the significance of clearly
defining the scope of public domain for character traits).8 Boston College Intellectual Property & Technology Forum [BC IPTF
A hypothetical author wrote The Unspoken Promise with JD Holmes, a
novel about an older sister of Sherlock Holmes, who is a great pianist and a nemesis
of Sherlock Holmes.72 In the novel, Sherlock Holmes appears to be in a vulnerable
state of mind.73 When they were children, JD used to lock Sherlock in a closet and
play piano for hours. 74 This was a traumatic experience for Sherlock that has
continued to haunt him.75 Every night he has nightmares of JD Holmes endlessly
playing a piano in the background, and as a result, he suffers from severe paranoia
about piano music.76 Given that the last ten stories of Sherlock Holmes by Conan
Doyle evolve around Sherlock Holmes’ long-lasting paranoia about music and how
it had a profound effect on his addiction to cocaine, the Estate may raise a claim of
copyright infringement claim against the author of The Unspoken Promise with JD
Holmes.77
B. Why Would Conan Doyle Estate Win the Suit
In this hypothetical case, The Unspoken Promise with JD Holmes uses the
character trait of Sherlock Holmes being extremely stressed and paranoid.78 A court
is likely to hold that this character trait is copyright protected because suffering
from a paranoia is an essential element that constitutes the cold and aloof character
of Sherlock Holmes.79 Although a great number of people suffer from paranoia, the
Estate could successfully argue that paranoia is not as general and natural as being
kind or warmhearted as was argued in the Enola Holmes case because paranoia is
almost always formed by unnatural or circumstantial causes.80 The court would also
likely agree that this element of paranoia from the last ten stories essentially
contributes to the unique identity of the character by explaining Sherlock Holmes’
frequent use of cocaine as mentioned in several short stories like “The Adventure
__________________________________________________________________
72
Cf. Complaint for Injunction and Damages at 8, Conan Doyle Est. Ltd. v. Springer, No. 1:20-cv-
00610 (D.N.M. June 23, 2020) (alleging the creation of a new character, a fictional sister of Sherlock
Holmes, while borrowing characters now in public domain).
73
See Musto v. Meyer, 434 F. Supp. 32, 35 (S.D.N.Y. 1977) (discussing whether cocaine addiction
causing Sherlock Holmes’ paranoia in the defendant’s novel is a copyright infringement of the
plaintiff’s article: A Study in Cocaine: Sherlock Holmes and Sigmund Freud).
74
Cf. id. at 33 (reversing the causal relationship of the paranoia in the novel, The Final Problem and
creating a different source of trauma that leads to paranoia and eventually causes Sherlock Holmes’
cocaine addiction).
75
See id. (being locked up and forced to listen to piano for hours, this past experience caused
Sherlock Holmes to be paranoid of piano music).
76
Cf. id. (using nightmares to portray Sherlock Holmes’ paranoia and vulnerable state of mind).
77
Cf. id. at 33 (referring to the Conan Doyle’s later writing, The Yellow-Face where Conan Doyle
describes Sherlock Holmes’ use of cocaine in his novels as not harmful and an occasional protest
against boredom.); see Complaint for Injunction and Damages at 8–10, Conan Doyle Est. Ltd. v.
Springer et al., No. 1:20-cv-00610 (D.N.M. June 23, 2020) (suggesting the Estate’s response if
paranoia of piano music and cocaine addiction were an integral part of Sherlock Holmes’ identity
in the early novels.).
78
See supra notes 72–77 and accompanying text (developing a character trait of Sherlock Holmes
at issue in the hypothetical case).
79
Cf. Klinger, 755 F.3d at 502 (justifying copyright protection of incremental originality of
character development); see also Rosenblatt, supra note 14, at 581-83 (applying the new standard
to the court’s decision in this hypothetical case).
80
Jahner June Article, supra note 9.2021] Copyright Protection of Sherlock Holmes 9
of the Yellow Face” and “The Adventure of the Final Problem, and therefore adds
incremental originality to the earlier Sherlock Holmes character.81 Therefore, the
Estate would succeed in its claim that Sherlock Holmes’ paranoia of piano music
in JD Holmes novel is a copyright infringement on the Sir Conan Doyle’s last ten
publications.82
C. Why Do We Need to Address Ambiguity in This Matter
The Intellectual Property Clause of the U.S. Constitution indicates that the
purpose of copyright law is to promote the progress of science and useful arts by
securing for limited times to authors and investors the exclusive right to their
respective writings and discoveries. 83 The unlimited expansion of the copyright
protection would degrade the very purpose of copyright law by restricting creative
works that could derive from elements of an inspiring original work. 84 Indeed,
having a concrete line of what constitutes a public domain governing character
traits and development would eliminate possible confusion in this area, thereby
facilitating copyright protection.85
CONCLUSION
Sir Conan Doyle’s Sherlock Holmes series is a great literary work that has
inspired numerous authors to produce derivative works with similar elements and
characters. Because the last ten stories of the Sherlock Holmes series are still under
copyright protection, disputes over copyright infringement continue to arise. In an
attempt to delineate the clear scope of the public domain for character development,
this essay looked at the copyright infringement cases involving the Estate. Due to
the practical difficulty of distinguishing general human traits and the policy reason
for allowing authors to create derivative works, the test for whether a trait is
protected should be whether character traits constitute or essentially contribute to a
character’s unique identity. Although the copyright protection of the remaining ten
stories of Sherlock Holmes will expire in 2022, effects of establishing clear lines of
copyright protection governing character traits and development extends beyond
__________________________________________________________________
81
See Silverman, 870 F.2d at 49 (justifying copyright protection of incremental originality of
character development); see also Musto v. Meyer, 434 F. Supp. 33, 35 (S.D.N.Y. 1977) (making
references to Sir Conan Doyle’s earlier short stories, The Yellow Face and The Final Problem where
the books mention Sherlock Holmes’ use of cocaine).
82
See Klinger, 755 F.3d at 502 (protecting copyright of incremental originality in the last 10 stories
of Sherlock Holmes); Rosenblatt, supra note 14, at 581–83 (applying the new scope of public
domain to the hypothetical case).
83
U.S. CONST. art. I, § 8, cl 8; see also Bertie Magit, Protection of Characters: Creator of the
Moodsters Sues the Walt Disney Company over Allegedly Stolen Characters, B.C. INTELL. PROP. &
TECH. F. 1, at 6 (Jan. 16, 2018), http://bciptf.org/wp-content/uploads/2018/02/Bertie-Magit-F17.pdf.
84
See Klinger, 755 F.3d at 501 (warning about the negative impact of broadening the scope of public
domain on creative derivative works).
85
See id. at 502 (explaining the potential confusion and inefficiency that would arise from an unclear
scope of public domain of a literary character’s trait from a policy standpoint); Rosenblatt, supra
note 14, at 590–91 (discussing the potential risks of litigation that copyright use generally entails).10 Boston College Intellectual Property & Technology Forum [BC IPTF the Sherlock Holmes series to any literary works that are published over a long span of time. Recommended Citation: Jan Di Lee, The Unresolved Mystery: Contested Public Doman of Sherlock Holmes, B.C. INTELL. PROP. & TECH. F. (Oct. 13, 2021), http://bciptf.org/2021/10/copyright-protection-holmes/.
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