The Curious Case of the Modern Sherlock

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One might assume that Sherlock Holmes, the iconic pipe-smoking detective created by Sir Arthur Conan Doyle in the 19th century, is a property of the public domain, free for endless spinoffs. Hundreds of films, TV shows, plays and stories featuring Mr. Holmes have appeared since Doyle's four novels and 56 short stories drolly celebrated his crime-solving genius. But producers of the BBC hit show Sherlock and those behind CBS' new pilot Elementary are suiting up for a possible fight over the 125-year-old crusader. The tussle could have enormous implications for an industry obsessed with mining backworks to create lucrative new projects. 

For the past few years, the BBC, along with Hartswood Films, has been imagining Holmes in modern London with its popular series Sherlock, whose third season was recently announced. On Jan. 17, CBS revealed plans for its own contemporary retelling of the Holmes story, Elementary, set in New York. Sherlock producers warned that they will contest any TV show that too closely resembles their own.

Public domain is commonly understood to allow unfettered access to works whose intellectual property term has expired. But application of the rules is not always straightforward. Sherlock has been showing in the U.S. on BBC America and various PBS stations. Sue Vertue, an executive producer of the series at Hartswood, told The Independent: "We understand that CBS are doing their own version of an updated Sherlock Holmes. It's interesting as they approached us a while back about remaking our show. At the time, they made great assurances about their integrity, so we have to assume that their modernized Sherlock Holmes doesn't resemble ours in any way, as that would be extremely worrying. … We are very proud of our show and, like any proud parent, will protect the interest and well-being of our offspring."

Elementary is "a contemporary take on Sherlock Holmes that will be based on Holmes, Watson and other characters in the public domain as well as original characters," CBS tells THR in a statement. "We are, of course, respectful of all copyright laws and will not infringe on any stories or works that may still be protected."

Interpretation of public domain is a murky undertaking. Warner Bros. sued a company specializing in nostalgia merchandise for making movie posters and lobby cards for The Wizard of Oz, Gone With the Wind and several Tom & Jerry short films. The court of appeals questioned whether the defendant had appropriated "original elements" of the works or merely those already in the public domain. The court handed Warners a win.

"There is no evidence," the justices wrote, "that one would be able to visualize the distinctive details of, for example, Clark Gable's performance before watching the movie Gone With the Wind, even if one had read the book beforehand." This could mean that Sherlock producers can protect their modern version of Sherlock Holmes, even though it is based on work from the 19th century. 

Then again, copyright law protects only "substantially similar" expression, not ideas. Warner Bros. learned this the hard way in the 1980s when it sued ABC over The Greatest American Hero, a show it alleged included a rip-off of its copyrighted Superman character. The court found that while the show's main character shared traits with Superman, the "overall perception" of the character was distinct.

Still, Urmika Devi, an intellectual property lawyer at Duane Morris, believes CBS would be wise to make its Sherlock as dissimilar to the BBC's version as possible. If, for example, CBS copied the BBC by showing its Holmes using text messaging to solve crimes and a nicotine patch to beat smoking? "That," says Devi, "would bring CBS' version closer to infringing on highly defined aspects of the BBC's character."

Another complication: Heirs of the Doyle estate claim the character remains in copyright in the U.S. until 2023, and any new properties involving the detective "definitely should" be licensed. Warner Bros. says it had agreements with the Doyle estate that allowed its recent Robert Downey Jr. blockbusters to proceed. But in 2002, USA Network produced Case of Evil, about a young Sherlock Holmes, and was sued by Pannonia Farms Inc., which said it had been given all rights to Doyle's works in 1986. New York federal judge Naomi Buchwald determined that nine Doyle works were still under copyright but let USA off the hook because its TV movie was based on many other stories in the public domain that had delineated the Sherlock Holmes characters.

Unraveling the Sherlock copyright issues, it seems, is anything but elementary.

Holmes At the Global Boxoffice

The strong global box-office performance of Sherlock Holmes: A Game of Shadows, Guy Ritchie's sequel to 2009's Sherlock Holmes, starring Robert Downey Jr. and Jude Law, proves the character's enduring cash value. As of Jan. 23, the Warner Bros. sequel had grossed $440 million worldwide, including $261 million from foreign markets, where the character is especially popular. In its first five days in China, for instance, Game of Shadows grossed $10 million, versus $4.5 million for the first five days of Ritchie's first Sherlock. However, that 2009 movie, also released in the U.S. during the Christmas holiday, ended up totaling $209 million domestically, a sum that the sequel might not meet given the soft domestic box office overall. Internationally, the original ended up grossing a whopping $315 million (for a total of $524 million). And in foreign markets, the second film is 33 percent ahead of where the previous Sherlock was at the same point in release. – Tim Appelo

 
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