At Techdirt, Mike Masnick explains why the estate of Sir Arthur Conan Doyle is still trying to fight the public domain availability of anything Sherlock Holmes, even though they’ve lost at each stage of the legal proceedings:
And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes’ retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that’s now been adapted into a film called Mr. Holmes, being released by Miramax.
First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:
The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself.
And that’s where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes’ retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story “Blanched Soldier”:
It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions.
“From South Africa, sir, I perceive.”
“Yes, sir,” he answered, with some surprise.
And contrasts it with the following from Cullin’s work:
As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where — from his vantage point — I became obscured by the brightness of the outside light, and he — from mine — was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him.
“There is a great deal of concern, I see, about your wife.”
“That is correct, sir,” he replied, visibly taken aback.
Certainly a similar setup, but is it infringing? That’s where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover “a character.” After all, copyright is supposed to only protect the specific expression, rather than the idea. That’s why it’s never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character’s perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original.
