Legal Fight Brewing Over CBS' New Sherlock Holmes Adaptation (Analysis)

Sherlock Holmes BBC Press Still

Producers of BBC's hit series Sherlock have issued a warning to CBS Television over plans for a new modern-day adaptation of the Sherlock Holmes detective stories, Elementary. The British producers say they are prepared to protect against any TV show that too closely resembles their own.

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One might assume that Sherlock Holmes, first depicted in the 19th century in four novels and 56 short stories by Sir Arthur Conan Doyle, is firmly in the public domain. Since the master of logical reasoning first appeared in literature, there have been hundreds of films, TV shows, plays and stories featuring the character. But whether or not Holmes has slipped out of copyright, and whether TV producers have the ability to create derivatives at will, is a mystery that's ripe for legal sleuthing.

The public domain is commonly understood to allow unfettered access to works whose intellectual property term has expired. Unfortunately, it's not so simple. Sherlock Holmes presents a good case study.

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For the past few years, BBC, along with Hartswood Films, has been imagining Holmes in modern times in the popular series Sherlock. A third season has just been announced.

Last week, CBS announced a pilot for its own modern retelling of the Holmes story with the detective solving obscure cases in New York.

CBS' announcement set off alarm bells for producers of Sherlock, which has been showing in the U.S. on PBS. According to The Independent, Sue Vertue, an executive producer on the series at Hartswood, had this to say about the development:

"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 modernised 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."

The British press has interpreted this statement to signal a lawsuit ahead. Might CBS get in trouble for using the famous detective character?

"Our project is a contemporary take on Sherlock Homes 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."

When it comes to the public domain, not everything is elementary. One decision last July at the 8th Circuit Court of Appeals might hold some clues about the types of claims that producers of Sherlock might make against CBS.

In the case, Warner Bros. sued a company that specialized in nostaligia merchandise for using movie posters and lobby cards for Wizard of Oz, Gone with the Wind and several Tom & Jerry short films. The 8th Circuit took up the question of whether the defendant had appropriated “original elements” of the film or merely elements that were already in the public domain. The appeals circuit handed Warners a win.

"There is no evidence 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," the justices wrote. "At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue."

In other words, the Eighth Circuit ruled that the features of on-screen characters can be copyrighted even if these characters were based on prior work. It potentially means that Sherlock producers can protect their own modern version of Sherlock Holmes, even though it is based on work from the 19th Century.  

But two factors potentially add intrigue to any possible lawsuit against CBS. Read on...