Enola Holmes II, the sequel starring the brilliant Millie Bobby Brown, Henry Cavill and Helena Bonham Carter is out on Netflix. This adventure promises to be just as exciting as the first outing. But we are lucky that the characters came back to the screen at all. After the first film, the Sir Arthur Conan Doyle estate brought a lawsuit for copyright infringement against various parties. The case was eventually dismissed, but the return of Enola is a great opportunity to look at the intellectual property issues that followed the first film and the character of Sherlock Holmes. If you like Enola Holmes, Sherlock Holmes and intellectual property then grab some to tobacco from the nearest slipper, fill up a pipe and dive in. As an added bonus, hidden in this article are a series of references to the Sherlock Holmes stories, if you can deduce them. The game is on (that was one of them).

But before we begin, on our journey (which may be to Baker St, but must surely take in Swandam-Lane) we should mention that some of the Sherlock Holmes stories actually relate to intellectual property (to some extent). There is the Naval treaty and the misappropriation of confidential information, we hear about the success that the patentee of the Openshaw unbreakable tyre has and what about the 30 patents involved in a particular set of submarine plans. Doyle of course wrote about IP expressly in The Great Brown-Pericord Motor short (tragic) story published in the Cheshire Observer in 1891, but it is a mystery that did not make it to Baker Street.

Background

Enola Holmes is based on the books of Nancy Springer, starring Millie Bobby Brown (who said that she had not considered a sequel until she started shooting the first film). It is about Sherlock Holmes’s sister who possesses just as much wit, intelligence and ability for disguise as her older brother. Whether she can deduce that someone has gas laid on in the house by examining their hat is another matter (but she probably could). The first film was such a success on Netflix that a sequel has been released. Last time Enola had to rescue the Marquess of Tewkesbury from attempted kidnap and assassination attempts (none involving a modified air rifle thank goodness), all whilst trying to evade her older brothers.

The sequel promises all the same adventure and more but a number of intellectual property issues had to be overcome in order for the films to make it to our screens, enough to give any lawyer a twisted lip.

IP issues

Following the success of the first film, in 2020 the Sir Arthur Conan Doyle estate complained that no licence was in place to use the characters and as a result the film infringed the copyright in the original works about Holmes and Watson. After all, what one man can invent another man can discover.

The Sherlock Holmes stories, written by Conan Doyle between 1887 and 1927 need no introduction and there have been numerous adaptations of the works. What is interesting is because of the date of publication for the last stories, we have seen the expiry of copyright protection. Under US law the period of protection is 95 years from the date of publication (under English law it is currently 70 years from the year of the  death of the author).  With those timeframes in mind, all of the Sherlock Holmes stories will be considered in the public domain in the USA.

The Conan Doyle estate’s argument was that Holmes still enjoyed copyright protection despite the majority of the works being in the public domain. This was based on the fact that some of the later stories, still in copyright at the time of the issue, contained a version of Sherlock Holmes who was more emotional and that copyright subsisted in this element of the character.

It is thought that this development in the Sherlock character was in part due to Sir Arthur Conan Doyle’s experience in WWI. Court documents state:

Conan Doyle made the surprising artistic decision to have his most famous character – known around the world as a brain without a heart – develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion.

Previous decisions would appear to be against a finding (in England and Wales) that copyright could subsist in this Sherlock character. Notably, in Conan Doyle v London Mystery Magazine and Tyburn Productions Ltd v Conan Doyle [1991] Ch. 75 CA the courts have held that the Sherlock Holmes’ name and address and that literary characters themselves are not protectable under UK law, or that the question of copyright protection in the USA was not justiciable in England.

Previously, in Conan Doyle v London Mystery Magazine,1215  the judge refused the executor of the Sir Arthur Conan Doyle estate an injunction against the owners of a detective magazine which referred to Sherlock Holmes and claimed that it was published at 221B Baker Street.

In that case it was held that, because this amounted to no more than a claim that the magazine would be worthy of Holmes, the goodwill in the Sherlock Holmes stories did not stand to suffer any damage. Had Sherlock Holmes not been a fictional character, but instead a real person, the judge would have intervened.

However, the courts appear warmer to the idea that copyright can subsist in literary characters (something that DC and Marvel comics will take interest in given the original publication date for some of their works). The recent UK decision in Shazam v Only Fools The Dining Experience and Others[2022] EWHC 1379 (IPEC) sets out that copyright can subsist in a character provided that they are (a) original in the sense that the character is the author’s own intellectual creation; and (b) identifiable with sufficient precision and clarity.

In Shazam, the characters in question were from Only Fools and Horses, the successful BBC TV series. In particular Del Boy, who was identifiable for:

• His use of sales patter with replicated phrases;
• His use of French to try to convey an air of sophistication;
• His eternal optimism;
• His involvement in dodgy schemes;
• His making sacrifices for another OFAH character.

It would be understandable for a similar list of characteristics to be attributed to Sherlock Holmes. Whether this ruling would support the notion that copyright in different versions of character results in copyright protection extending is a question that is unlikely to be asked, let alone answered, as so many of the works are in the public domain.

The decision may at first seem to be at odds with Kelly v Cinema Houses Ltd [1928-35] MacG. C.C. 362 at 368 in which Maugham J. stated “If, for instance, we found a modern playwright creating a character as distinctive and remarkable as Falstaff … or as Sherlock Holmes would it be an infringement if another writer, one of the servile flock of imitators, were to borrow the idea and to make use of an obvious copy of the original? I should hesitate a long time before I came to such a conclusion”.

However, the question being considered is different. In Shazam (and the Sherlock Holmes litigation) the actual characters were being used, in the case of Shazam for an interactive dining experience whereas Maugham is referring to a prospective infringement of a well known character by another character who has been given many of the same characteristics.

Trade Marks

Copyright may no longer be an IP right that the Conan Doyle Estate may rely on, but there are a number of registered trade marks, in the Character names and 221B Baker Street. The trade mark portfolio includes the names, silhouettes, as well as a number of other characters, such as Professor Moriarty and Mrs Hudson. The Conan Doyle Estates states on its website:

We manage the literary, merchandising, and advertising rights in Sir Arthur Conan Doyle’s works and all characters, including Sherlock Holmes, Dr. Watson, and Professor Challenger.

The Conan Doyle Estate Ltd owns the last remaining protected story and character copyrights in the USA and also own trademark and common law rights in the name and image of Sir Arthur Conan Doyle, Sherlock Holmes, Professor Challenger and other Conan Doyle characters in the USA, European Union, U.K. and many other countries around the world.

This means that if anyone would like to create an authorised Sherlock Holmes story, they are likely going to need permission and a trade mark licence from the Conan Doyle estate.

Fan fiction

One last point that may make you stab a jack knife onto the mantle piece – if characters based on a set of traits are capable of being protected by copyright, then there are a series of fine lines in the fictional detective space.

Those interested in fan fiction should consider if they are infringing any IP rights before going to publish as they are likely to include copyright works if they make use of established characters.

A three pipe problem

Last thoughts – just how original is the concept of solving mysteries through logical reasoning? This appears to have been first used in 1841 in Edgar Alan Poe’s “The Murder in the Rue Morgue” which is often considered the original modern detective story.

Certain elements of this story may sound familiar, such as the narration by a close friend, an eccentric detective, and a less favourable view of the constabulary. These have been reused in Sherlock (and perhaps Poirot) ever since.

This highlights the difference between idea and expression well (often referred to as the idea/expression dichotomy). When considering any copyright subsistence, if the expressions are not sufficiently precise and identifiable then they will likely be considered to remain as ideas and not be protected by copyright. Only once they are fleshed out with sufficient precision and identifiability will they be considered expressions.

With that, the case is closed. Below are some of the answers to the clues above.

The Science of Deduction

Joseph Openshaw was the patentee of the Openshaw unbreakable tyre – mentioned in The Five Orange Pips

Twisted lip is a reference to The Man with the Twister Lip

The mention of an air rifle is a reference to The Empty House

“What one man can invent, another can discover” – The Dancing Men