Arthur Conan Doyle’s estate sues Netflix for giving Sherlock Holmes too many feelings

From The Verge:

The estate of Sir Arthur Conan Doyle has sued Netflix over its upcoming film Enola Holmes, arguing that the movie’s depiction of public domain character Sherlock Holmes having emotions and respecting women violates Doyle’s copyright.

Enola Holmes is based on a series of novels by Nancy Springer starring a newly created teenage sister of the famous detective. They feature many elements from Doyle’s Sherlock Holmes stories, and most of these elements aren’t covered by copyright, thanks to a series of court rulings in the early 2010s. Details from 10 stories, however, are still owned by Doyle’s estate. The estate argues that Springer’s books — and by extension Netflix’s adaptation — draw key elements from those stories. It’s suing not only Netflix, but Springer, her publisher Penguin Random House, and the film’s production company for unspecified financial damages.

. . . .

The Doyle estate made a similar argument five years ago in a lawsuit against Miramax for its film Mr. Holmes — among other things, it claimed Mr. Holmes included plot details about Holmes’ retirement, which only happens in the final stories. But its new argument is a lot more abstract: basically, if this movie wants Sherlock Holmes to express emotions, its creators need to pay up.

The complaint alleges that in the public domain stories, Holmes is famously “aloof and unemotional.” Then, that changed because of his creator’s life experiences:

After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.

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. He began to respect women.

He also starts liking dogs, which a judge actually has described as a potentially protected trait.

The Hollywood Reporter notes that Doyle’s estate fought the partial public domain ruling by unsuccessfully arguing that Sherlock Holmes slowly became a complex figure who needed full copyright protection to remain coherent. The estate claimed that losing copyright to some of the stories gave Holmes “multiple personalities.”

So the estate now says Springer and Netflix are basing Enola Holmes on the personality that’s still protected. And the new personality’s key traits include relating to other people and reacting with “warmth and emotion” to a female character who happens to be his immediate family — in other words, some of the most basic updates any author might make to a century-old character.

Link to the rest at The Verge

PG was about to write some comments about showbiz lawsuits and California courts and lawyers.

(PG is a long-time member of The State Bar of California and one of more than 266,000 attorneys licensed to practice law in California, although PG no longer lives in that state. He will attest that there are some very good lawyers in California, there are some very inept lawyers in California and there are some very crazy lawyers in California.)

However, when PG examined the complaint in the Conan Doyle lawsuit, he was surprised to discover that it was filed in the United States District Court for the District of New Mexico by a law firm that appears to be comprised of five attorneys located in Santa Fe, New Mexico, population: 85,000.

There is definitely an interesting story about how a UK corporation created by the heirs of Arthur Conan Doyle connected with a five-attorney firm in Santa Fe.

As mentioned, Plaintiff is a UK corporation.

Defendants are:

  • a Delaware corporation,
  • a UK corporation,
  • limited liabilities formed in
    • Delaware,
    • Georgia and
    • California,
  • two residents of London
  • a resident of Florida.

As it happens, the Santiago E. Campos Federal Courthouse is located in Santa Fe, likely a short walk from the offices of the attorneys representing the Conan Doyle Estate and not a short walk for any of the parties to the lawsuit or their preferred defense attorneys.

There are a total of five permanent Federal District Court judges and one temporary District Court judge in New Mexico. For comparison, California has 60 permanent Federal District Court Judge positions, New York has 52. (per https://www.uscourts.gov/)

PG doesn’t know how busy these New Mexico judges are, but expects none of them wished for a complex copyright lawsuit involving parties from all over the place to land on her/his docket.

Most Federal District Judges in New Mexico and elsewhere are current on the rules of criminal procedure and how to try a drug case. Copyright infringement? Not so much.

PG is pretty certain there are not enough qualified intellectual property trial attorneys with offices in Santa Fe to represent each of the defendants.

The Santa Fe airport boasts daily flights to to Denver, Dallas and Phoenix, so IP trial attorneys located in Los Angeles, New York or London won’t have an easy time getting to court.

PG hasn’t considered the question of federal jurisdiction and venue for a lawsuit involving as many parties from as many places as the Conan Doyle suit includes, but suspects that New Mexico federal courts could probably hear this case.

This case was filed at the end of June. PG hasn’t checked the court records to see if all the defendants have been served with papers and what has happened since the suit was filed.

However, PG will predict that the first response of the defendants has been/will be to strenuously attempt to have the case transferred to someplace with a lot more qualified attorneys and much better air access than Santa Fe.

He also suspects that a more than a few of the defendants had no idea where Santa Fe was when they were served with court papers.

PG is certain that this will be an entertaining (at least for him) case to follow.

[Let PG know in the comments or via the Contact Link if you are not seeing an embedded copy of the Complaint filed in this case and want to see it. When PG tested this post, he could usually see the PDF, but sometimes received an error message.]

Sherlock

18 thoughts on “Arthur Conan Doyle’s estate sues Netflix for giving Sherlock Holmes too many feelings”

  1. I’m an IP geek but CivPro nerd… and over 80% of IP cases actually filed end up turning on questions of civil procedure, not intellectual property law. Like this one for which I’m best known, which was cited as paradigmatic by the Copyright Office just a few months ago. In no particular order:

    (1) Copyright law in the Tenth Circuit (which includes New Mexico) is less-well-developed than elsewhere; and, in particular, it doesn’t have the pro-transferree biases of the Second and Ninth Circuits (New York and H’wood respectively), nor the music-is-all-that-matters bias of the Sixth Circuit (N’ville), nor the pragmatic bias of the Seventh Circuit (Chicago), nor the extreme-transformative-use-thanks-to-greeting-cards bias of the Eighth Circuit (Kansas City)… you get the idea. This is, in other words, pure forum shopping.

    There has been a motion to transfer the case (Doc. 22) to the Central District of California₀ which has much, much tougher standards under Fed. R. Civ. Proc. 11 than does the Tenth Circuit, especially since there has already been an adverse judgment against the Estate on a remarkably similar theory and remarkably similar factual allegations.

    However, at least in theory if the case is transferred under § 1404, the law of the origin will follow along. So this could get interesting from a choice-of-law perspective, since whether the established (or, more accurately, not established) federal copyright law of the District of New Mexico and Tenth Circuit is really “different law” from that of Central District of California and Ninth Circuit is a question that civil procedure nerds like me argue over. A lot.

    (2) It’s a nonstarter in substance. As the transfer motion notes (with, IMNSHO, unwarranted restraint):
    This lawsuit arises from the previously established unlawful business practices of the plaintiff, Conan Doyle Estate Ltd. (the “Estate”), which has long demanded licensing fees – to which it is not entitled – for the use of public domain material relating to the literary character Sherlock Holmes. When producers, publishers, or authors refuse to pay the Estate a licensing fee to use such public domain material, which does not belong to the Estate and is free to use, the Estate often resorts to litigation. As the Seventh Circuit explained in Klinger v. Conan Doyle Estate, Ltd., 761 F.3d 789, 792 (7th Cir. 2014), the Estate demands licensing fees “for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand.”
    Conan Doyle Estate, Ltd. v. Spring et al., No. [20]20–610 (D.N.M.) Doc. 22 at 1 (italics in original, hyperlink added).

    (3) Authorizing a second-order derivative work is not a new copyright violation that restarts the statute of limitations. The statute of limitations on Nancy Springer’s novels began running not later than 16 February 2006, the publication date of the novel upon which the film production is based… meaning that Ms Springer is not a proper party defendant. (The irony that this is before the string of adverse results against the Estate began — that is, that the Estate would not have been on nondisregardable notice of the weakness of its substantive theory and the dubious nature of its business model — strikes me as further ammunition for a Rule 11 motion.) <sarcasm> Of course, they’re actually avoiding Los Angeles because that’s where Mr Klinger is based. </sarcasm>

    (4) It’s actually highly misleading to look at the “Ltd.” and assume that the Estate is a corporation. There is a corporate form involved here, but this is actually all-too-typical overreaching by Trustees. And it’s not limited to literary trusts by any means; some of the most-notorious, long-running patent litigation (it’s been going for nearly half a century!) is in the hands of a decedants’ trust. If intermittant windshield-wiper systems merit such litigation, surely the World’s Greatest Consulting Detective’s “later development” of emotions does!

    (5) Literary theory aside: Perhaps the problem isn’t Sherlock Holmes and his emotions; perhaps — just perhaps, as reading some of Doyle’s other writings, in sequence and in context, implies — it’s that the author wasn’t capable of depicting the detective’s emotions until much later in the author’s career. That is, that Doyle just wasn’t that good a writer at the beginning, and therefore put forth flat (and not rounded) characters in the earlier Holmes works. <sarcasm> But that wouldn’t have anything whatsoever to do with the losing theory of copyright protection put forth in front of the Seventh Circuit, so we need not be detained by it for long. </sarcasm>

    In summary, Lestrade would be smart enough to avoid filing this lawsuit. Which says something rather unfavorable about these lawyers.

  2. Side note:

    The Estate is claiming that venue is proper in New Mexico because that’s where its only permanent contact with the US keeps his office: Its US licensing agent.

    Methinks there is some need for continuing legal education of the Estate’s counsel, because they clearly weren’t listening in first-year Civ Pro… which emphasizes that except where the statute providing the cause of action explicitly provides otherwise (such as prisoner conditions-of-confinement lawsuit requiring suit in the district where confined), “venue” is adjudged by the defendants’ characteristics, not those of a mere agent of the plaintiff who isn’t also a plaintiff.

    Of course, the licensing agent might also be a principal of the plaintiff, which opens a pallet of cans of worms by itself…

  3. “PG is pretty certain there are not enough qualified intellectual property trial attorneys with offices in Santa Fe to represent each of the defendants.”

    I wouldn’t bet on this. Santa Fe is lousy with writers as well as artists in all kinds of media.

    “The Santa Fe airport boasts daily flights to to Denver, Dallas and Phoenix, so IP trial attorneys located in Los Angeles, New York or London won’t have an easy time getting to court.”

    Nobody flies into the Santa Fe airport except, maybe, Julia Roberts. They can do what everybody does: fly in to Albuquerque, rent a car, and drive an hour on I-25. No sweat.

    But I agree, this is going to be a case for a popcorn concession. Really, I’m surprised the Doyle estate hasn’t sued Laurie King for daring to get Sherlock married off.

    • Ashley, there may be attorneys in Santa Fe who claim to be IP/copyright attorneys. Good ones? Well, take a look at the link in point 2 of my long post above, and compare the name of the lead attorney for the Estate to, say, the lead estate in this lawsuit. (Which, I might add, only reinforces the propriety of Rule 11 sanctions, and perhaps even designation as a “vexatious litigant” under 28 U.S.C. § 1927, which has been imposed in Los Angeles in the last couple of years for a notorious serial copyright claimant.) So even if there is “local counsel” available, there’s a darned good reason that most of us who practice in the area and are not affiliated with a BigLaw firm are hired guns, called in by local counsel who realize they’re overmatched.

    • Ashley – I’m not trying to throw any shade on Santa Fe lawyers in general or Santa Fe IP lawyers in particular. I have no doubt there are many excellent attorneys in a place as nice as Santa Fe, particularly given the percentage of the local population, both retired and not, who have the ability to pay legal fees.

      I can’t speak for Santa Fe in particular, but most attorneys who call themselves IP attorneys across the country spend most of their time filing patent applications and shepherding those applications through the often lengthy process of getting a patent issued.

      This is an even more likely professional career if the attorney practices outside of a major metro area. Santa Fe doesn’t generate much patent litigation. Phoenix will likely have some cases, but not nearly as many as you’ll find in L.A., San Francisco or New York.

      While both patents and copyrights (along with trademarks) are the three mainstays of traditional IP, IP litigation is its own world and a good patent attorney could spend her/his entire career without venturing into a federal district courtroom other than as a spectator or acting in a strictly advisory role for litigation counsel.

      In my experience, most people who are good at litigation (particularly taking a case to trial instead of settlement) spend a lot of time in court trying cases to a judge or jury.

      I formerly spent a lot of time in court, but stopped doing so a long time ago. It would be pretty close to straight-up malpractice for me to represent anyone in a trial today.

      It would be like a professional basketball coach who hasn’t played or practiced in thirty years putting on a uniform and walking onto the court to prevent LeBron James from scoring in the final minutes of an NBA tournament game.

  4. Everyone reporting on this keeps claiming the estate has copyrights on the last 10 Stories because at the time of the last law suite they lost they had 10. They are down to 6 at this point. For some reason this bugs the heck out of me. It’s like no one knows that what is in the public domain is changing again.

      • Presumably this is only for the USA? I know that the USA’s copyright rules for older books are weird, but for (almost?) everywhere else Conan Doyle’s non posthumous works has been in the public domain for nearly 20 years (or nearly 40 years if you are Canadian). And as far as I can tell, everything involving Sherlock was published before his death, in fact by 1927, which I guess means USA public domain by 1 January 2023?

        • That’s my read.
          27 Months to go.
          Probably why they’re so frantic to get one last big payout.

          • Not entirely true (although there’s certainly some truth to it, given that Disney was a major sponsor). We should actually blame the French and Italians for this.

            Under the Treaty of Rome — which created “Europe” as we know it, and is the precursor of the EU — every member of the EEC (now EU) must offer sufficient copyright terms to protect the interests of the citizens of every other member. In the 1970s, this was life-plus-50… except in France and Italy, where it was life-plus-70 already. Shortly thereafter, French and Italian transferees began lobbying all other EEC governments to extend, in accordance with the Treaty of Rome; they did, over a decade or so. Keep in mind that the US was not a Berne signatory at that time, and didn’t become one until 1988…

            …when the life-plus-fifty term in the 1976 Act was found wanting. By, in fact, just about everyone; there was substantial pressure from outside the US (remember, many BigMedia and BigPublishing owners are not from the US!) to extend our term to be in line with the European standard. So, a decade later, we did. At the same time, we added 20 years to the 75-year term that had been set transitionally in the 1976 Act for older works, making them 95 (with the additional tweak that it would be measured from actual publication and not from effective date of registration, but now we’re getting into the weeds).

            US copyright is weird because Congress, a century and a half ago, didn’t want to actually pay for acquiring works for the Library of Congress. But that’s a few thousand words and a few hundred footnotes, with tales not just of skullduggery but conflicts of interest and attempts to harm family fortunes of unfashionable families to boot. Everything else is a consequence of that.

            • I have no desire to forgive the EEC for its push towards longer copyright terms – or the US for following its example. However, even if the 20 year extension had not taken place, we would still have seen the odd result that Sherlock Holmes stories would have all been in the public domain in the UK – where they were written – when some were still under copyright in the USA. Hence my original description of USA copyright as weird.

    • I’ve switched PDF-embed plugins, but still haven’t found one that works for everyone, T.

      If anybody has suggestions, let me know.

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