Does the New Netflix Movie “Enola Holmes” Infringe the Copyright in Sherlock Holmes?
A recently filed lawsuit in federal court in New Mexico raises the question of whether the new Netflix film “Enola Holmes,” a film about Sherlock Holmes’ sister, infringes the copyright in the Sherlock Holmes character and stories owned by the Arthur Conan Doyle Estate.
As reported in a June 24, 2020 article in the Hollywood Reporter (see https://www.hollywoodreporter.com/thr-esq/conan-doyle-estate-sues-netflix-coming-movie-sherlock-holmes-sister-1300108), the Conan Doyle Estate has sued Netflix, Legendary Pictures, Penguin Random House and others, including author Nancy Springer, whose book series forms the basis of the new movie, claiming that the Enola Holmes character and story infringe the copyright in Arthur Conan Doyle’s famous character and stories.
The complicating factor for the Doyle Estate is that in 2014, the Doyle Estate lost most of its copyright rights to Sherlock Holmes when a federal appellate court ruled that all of the stories authored about the Holmes character before 1923 were in the public domain. But the ruling didn’t strip away the Doyle Estate’s copyright on the last 10 original Sherlock Holmes stories authored between 1923 and 1927.
Under well settled copyright law, only the original elements of Doyle’s last ten Holmes stories are protected by copyright. And the copyright does not protect what are known as scènes à faire, which are standard and customary plot elements standard for the works in a particular genre. Think of a car chase in a crime drama.
To try to get around the public domain and scènes à faire problems, the Estate’s complaint alleges that “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.”
And so Sherlock “became warmer,” continues the complaint, setting up the question of whether the development of feelings is something that can be protected by copyright and whether the alleged depiction of Sherlock in “Enola Holmes” is somehow derivative and therefore infringing.
It will be interesting to see how this case plays out. The estate likely will have to convince the court that the “warmer” Sherlock Holmes character in the stories still protected by copyright is expressed sufficiently differently from the colder one in the public domain stories such that the warmer character acquired protectable elements. Then, the estate also will have to prove that the warmer character in the allegedly infringing works is warmer in the same manner as the character in the works protected by the copyright.
A copy of the complaint can be found here: https://www.documentcloud.org/documents/6956021-Sherlock.html
Important Copyright Tips For Businesses
Copyrights are very powerful rights but often are not fully understood or protected by business owners. Here are some important tips about copyrights with which all businesses should be familiar:
- Register: Businesses should identify and register their copyrights within 90 days of the publication of the copyrighted work.
- Notice: Even though not required, we strongly recommend that businesses place an appropriate copyright notice on all copyrighted works to discourage infringement and cut off the “innocent infringer” defense.
- Rights: All businesses must make sure that they have the right (documented in writing) to use any copyrighted materials created by others. Copyright issues sometimes can be hard to spot so we strongly recommend that businesses retain an experienced intellectual property attorney to conduct a periodic intellectual property audit.
- Agreements: All businesses must make sure they have appropriate written agreements in place with employees and other creative personnel regarding ownership and use of copyrighted materials (including, most particularly, materials created by employees and contractors) as well as agreements establishing the right to use copyrighted materials owned by others.
- Insurance: Businesses involved in any way in areas that involve the creation and use of copyrighted materials should explore obtaining insurance for infringement claims. Please note that most commercial general liability policies do not cover intellectual property claims – the purchase of separate coverage usually is required.
- Infringement: Businesses should take seriously any infringement of its copyrighted materials as well as claims of infringement asserted by third parties. In both situations, the business should promptly consult with an experienced copyright lawyer to determine an appropriate and cost-effective course of action.
A Brief History Of Copyright Litigation About Popular Songs
Many of our readers may have read with interest the recent media about the copyright litigation concerning Led Zeppelin’s iconic “Stairway to Heaven” where the owners of the rights to a song entitled “Taurus” put out by the 60s band Spirit have sued Led Zeppelin for copyright infringement by the song “Stairway to Heaven.” This is just the latest in a long line of lawsuits involving alleged infringement and plagiarism of the rights to popular songs. Accusations of musical plagiarism are a recurring phenomenon, but only rarely end up being heard in formal legal proceedings. Many readers will remember the 2015 case where a jury awarded damages of $7.2 million against Robin Thicke and Pharrel Williams for infringing the copyright in Marvin Gaye’s “Got to Give It Up.” These artists settled out of court because their songs too closely resembled songs by other artists:
Led Zeppelin’s “Whole Lotta Love” (1969) – Willie Dixon’s “You Need Love” (1962).
George Harrison’s “My Sweet Lord” (1970) – The Chiffons’ “He’s So Fine” (1962).
Rod Stewart’s “Da Ya Think I’m Sexy?” (1978) – Jorge Ben’s “Taj Mahal” (1972).
Steely Dan’s “Gaucho” (1980) – Keith Jarrett’s “Long As You Know You’re Living Yours” (1974).
Ray Parker Jr.’s “Ghostbusters” (1984) – Huey Lewis & The News’ “I Want a New Drug” (1984).
Hootie & The Blowfish’s “Tangled Up in Blue” (1995) – Bob Dylan’s “Tangled Up in Blue” (1975).
Janet Jackson’s “Got ‘Til It’s Gone” (1997) – Des’ree’s “Feels So High” (1991).
The Verve’s “Bittersweet Symphony” (1998) – The Rolling Stones’ “The Last Time” (1965).
Avril Lavigne’s “Girlfriend” (2007) – The Rubinoos’ “I Wanna Be Your Boyfriend” (1979).
Here are some sound-alike songs where copying has been rumored but have not resulted in formal legal cases:
Led Zeppelin’s “Since I’ve Been Loving You” (1970) – Moby Grape’s “Never” (1968)
Steely Dan’s “Rikki Don’t Lose That Number” (1974) – Horace Silver’s “Song for My Father” (1964)
Steve Miller Band’s “Rock n’ Me” (1976) – Free’s “Alright Now” (1970)
The Eagles’ “Hotel California” (1976) – Jethro Tull’s “We Used to Know” (1969)
Robbie Dupree’s “Steal Away” (1980) – The Doobie Brothers’ “What a Fool Believes” (1979)
Belinda Carlisle’s “Heaven Is a Place on Earth” (1987) – Bon Jovi’s “You Give Love a Bad Name” (1986)
R.E.M.’s “Hope” (1998) – Leonard Cohen’s “Suzanne” (1968)
Red Hot Chili Peppers’ “Dani California” (2006) – Tom Petty “Mary Jane’s Last Dance” (1993)
Bruce Springsteen’s “Radio Nowhere” (2007) – Tommy Tutone’s “867-5309/Jenny” (1982)
Prince’s “Guitar” (2007) – U2’s “I Will Follow” (1980)
Given the enduring popularity of “Stairway to Heaven,” the potential infringement damages could be massive – it will be interesting to see if Led Zeppelin chooses to litigate or settle out of court. Stay tuned.
While The Scope Of Copyright Protection Is Broad, Two Recent Cases Involving Yoga Positions And Recipes Show That There Are Limits
In a recent post in this space, we commented on several cases that illustrated that the scope of copyright protection is extremely broad (see here: https://affinitylaw.wordpress.com/2015/09/30/three-cheers-for-the-wood-flooring-recent-cases-confirm-copyright-protection-for-cheerleader-uniforms-and-wood-flooring-pattern). Two recent cases show that while copyright protection is broad, there still are limits:
Bikram’s Yoga College of India, L.P. v. Evolution Yoga, LLC: In this well-publicized case, the issue was whether a sequence of 26 yoga positions and two breathing exercises practiced in a specific order, called the “Sequence” and developed by Bikram Choudhury (a seminal figure in making yoga so popular in the United States and throughout the world and the creator of Bikram Yoga, sometimes called “hot yoga”), could qualify for copyright protection. In 1979, Choudhury published the book “Bikram’s Beginning Yoga Class” that includes descriptions and photographs of the Sequence in practice. In 2002, Choudhury also registered a copyright on the “compilation of exercises” contained in his book. In 2009, the defendants founded their own yoga studio and offered “hot yoga” classes that included the Sequence. Choudhury sued for copyright infringement claiming that the defendants infringed on his copyrighted works by offering yoga classes featuring the Sequence.
On October 8, 2015, the Ninth Circuit Court of Appeals held that the Sequence falls squarely within the exclusion detailed in Section 102(b) of the Copyright Act, which excludes from copyright protection “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embedded in such work.” The Ninth Circuit found the Sequence was a process for obtaining physical and emotional fitness and was, therefore, not copyrightable.
Tomaydo-Tomahhdo, LLC v. Vozary: The issue in the Tomaydo-Tomahhdo case was whether a book of recipes could qualify for copyright protection. The plaintiff was a restaurateur who created and ran a successful restaurant and delivery catering business. In 2012, the plaintiff assembled a book of recipes that had been developed for the restaurant. The defendant was a former partner in the plaintiff’s business. He copied the plaintiff’s recipes and used them in a competing catering business, and the plaintiff sued him for copyright infringement.
On October 20, 2015, the Sixth Circuit Court of Appeals held there was no copyright infringement because neither the recipes themselves nor the book which compiled the recipes were entitled to copyright protection. In so holding, the Sixth Circuit explained that the recipes themselves are not covered by copyright because they are simply listings of facts (i.e. the ingredients) and functional instructions how to assemble the ingredients. Likewise, the Sixth Circuit held that the recipe book did not have any originality (such as original commentary, pictures, etc. by the author) that qualified for copyright protection separate from the recipes themselves.
In both the Bikram Yoga case and the Tomaydo-Tomahhdo case, the parties claiming copyright protection may have been able to take steps to protect their intellectual property other than merely claiming copyrights in the materials addressed by those cases. As always, we highly recommend that businesses consult with experienced intellectual property counsel to assess what IP protection may be available to the business.