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.
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.
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…
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.