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

First, copyright law only protects "substantially similar" expression and not ideas. Warner Bros. learned this the hard way in the early 1980s when it sued over a TV series on ABC entitled The Greatest American Hero, which allegedly showed a modern-day rip-off of its copyrighted Superman character. The 2nd Circuit found that while the main character in the show shared some traits with Superman, the "overall perception" of how the character looked and acted was different.

"Stirring one's memory of a copyrighted character is not the same as appearing to be substantially similar to that character, and only the latter is infringement," wrote the justices at the appeals circuit.

Still, Urmika Devi, an intellectual property lawyer at Duane Morris, believes that CBS would be wise to make its Sherlock character as different from the BBC's version as it can. "A modern-day Sherlock is clearly an idea," she says. But what if CBS copied the BBC by showing its modern-day Sherlock Holmes using text messaging to solve crimes and using a nicotine patch to beat smoking?  "That would bring CBS' version closer to infringing highly-defined aspects of the BBC's character" says Devi.

The second factor that potentially complicates CBS' intention to retell the Sherlock Holmes story could be even more intriguing: Is Sherlock Holmes actually in the public domain?

In January 2010, on the heels of Warner Bros.' successful release of Sherlock Holmes, the New York Times published an article that looked into ownership of Sir Arthur Conan Doyle's creation, revealing that heirs of the Doyle estate asserted that the character remains in copyright in the United States until 2023 and that any new properties involving the detective "definitely should" be licensed.

Other reports say that all but one of Doyle's works are in the public domain, leading to some confusion over whether the character is still copyrighted.

Warner Bros. said it had agreements with the Doyle estate that allowed the film to proceed. How about the TV producers telling the modern version?

We apologize for burying evidence of CBS' potential liability so deep that even Watson might not dig it up, but if CBS was sued, it wouldn't be the first time that a television network found itself in court to answer charges of infringing Sherlock Holmes.

It turns out that in 2002, USA Network produced a movie entitled Case of Evil about a young Sherlock Holmes. The cable network was sued by Pannonia Farms, Inc., which said it had been conveyed all rights to Doyle's works in 1986 in an agreement that few people knew about. 

In a 2004 decision, New York federal judge Naomi Buchwald determined firmly that nine works of Doyle's were still under copyright, but let USA off the hook because its TV movie was based on the many other stories in the public domain that had delineated the Holmes characters. However, that doesn't mean that the Doyle estate (or anybody who has created new distinguishable features on the character) couldn't ever bring new lawsuits.

"Storylines, dialogue, characters and character traits newly introduced by the Nine Stories are examples of added contributions susceptible to copyright protection," wrote Judge Buchwald.

Case closed?

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner