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The heirs of Sherlock Holmes author Arthur Conan Doyle have apparently accepted an appellate judge’s conclusion that most of the Sherlock stories are in the public domain. However, that’s not stopping the Doyle Estate from filing a new lawsuit targeting Miramax and others over the coming film, Mr. Holmes, which features the famous detective near the end of his life.
On Thursday, a copyright and trademark lawsuit was lodged in New Mexico federal court that alleges that Mr. Holmes treads upon the last ten of Doyle’s Sherlock Holmes stories, published between 1923 and 1927.
In a prior dispute with a Holmes expert, the Doyle Estate attempted to argue that it would be unfair to separate out the copyrighted elements from the post-1923 stories from the character traits of the detective that were described prior to 1923. Seventh Circuit Judge Richard Posner rejected that argument, and also ordered the Doyle estate to pay its legal adversary more than $30,000 in legal fees, but still left open an avenue where the Doyle Estate could attempt to protect the latter works.
The lawsuit attempts to take this opportunity.
According to the complaint, Doyle’s public domain works “make references to Holmes’s retirement,” but the ones still in copyright tell “much more about Sherlock Holmes’ retirement and later years,” such as the detective’s attempt to solve one last case, how he “comes to love nature and dedicates himself to studying it,” and how Holmes develops “a personal warmth and the capacity to express love for the first time.”
Mr. Holmes screenwriter Mitch Cullin allegedly took “protected elements of setting, plot, and character” to create his work, setting up a defense that will likely explore what was covered in earlier Doyle work and what might be generic ideas not worthy of copyright protection. (First, though, a court might examine why the lawsuit belongs in New Mexico of all places.)
The Doyle Estate also looks to use the arrow of trademark law to shoot down Mr. Holmes and says every other major studio with a Sherlock project — including Warner Bros. films, BBC’s series Sherlock and CBS’ series Elementary —have taken a license.
This aspect of the case could open up some arguments over fair use — in many judicial circuits, creative works are allowed to use others’ trademarks if there’s “artistic relevance” — as well as introduce some talk of the Supreme Court’s landmark decision, Dastar Corp. v. Twentieth Century Fox Film, standing for the proposition that trademarks can’t be used as perpetual swords to counter copyrighted work falling into the public domain.
We’ve reached out to Miramax for comment. Here’s the full complaint from attorneys Paul Bardacke and Benjamin Allison at Sutin Thayer & Browne.
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