What makes a fictional character who they are? Would Darth Vader be Darth Vader without being Luke Skywalker’s father? Would Harry Potter be Harry Potter without defeating Voldemort? An American court will be asked to decide just that in Klinger v Conan Doyle Estate.
The case filed in US court is between the Sherlock Holmes aficionado Leslie Klinger and the Estate of Sir Arthur Conan Doyle. The character of Sherlock Holmes appears in 60 original novels by Doyle, 10 of which are still protected by American copyright law, rights that are owned by the Estate. Klinger, who has written numerous Sherlock Holmes books, is pursuing an action to have the Sherlock Holmes character declared to be in the public domain, and as such usable by any author without license from the Estate. The Estate is maintaining that the character of Sherlock Holmes is only complete when considering all 60 works, and as such is still protected in America by copyright.
Copyright law varies from country to country, but all systems acknowledge that for copyrights to be effective, they must extend beyond verbatim reproduction. A continuing area of debate is just how far that protection extends. Canadian law extends copyright to characters who are sufficiently distinctive, thorough and complete (Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc.). For obvious reasons the law will not extend protection to generic, stock characters. This doctrine allows authors to protect their characters from being appropriated and used in other works.
One issue that flows naturally from this limit on the scope of copyright protection is the question of how developed must a character be to cross from the “generic” into the “distinct” and attract protection? While the precise line is still debated, in my opinion, a character such as Sherlock Holmes would be sufficiently developed to attract protection. What complicates the case of Sherlock Holmes is that out of the 60 stories written by Doyle, only the last 10 are currently still covered by copyright. The issue that remains to be resolved is whether Sherlock Holmes is a complete character from the 50 works no longer protected or if the last 10 works are required to complete his character.
The Estate argues that a ‘flat’ character is one that is fully developed in a single story and then placed in various situations in future works. While that character may be sufficiently developed upon initial introduction to attract protection, that protection is not extended by placing that character in subsequent works. The copyright clock runs from their initial introduction. In their view, that is contrasted by Holmes, whom they see as a complete character only when all 60 stories are considered. In coming to this conclusion, they identify various story points present in the 10 protected books that they see as material to the character of Holmes; points expanding on his past, present, and future. They see it impossible to disentangle these protected works from the unprotected ones.
Klinger submits that the Holmes character is complete from the 50 unprotected works, and that the last 10 books only place the character in new situations. The Estate counters that this line of reasoning proposes to split Holmes into two characters: one public domain character from the 50 works, and one protected character from the complete 60 works.
If I could decide the case, my decision would hinge on when Holmes was a sufficiently constituted character to attract copyright protection. I don’t believe it would make sense to take all 60 stories on their face as contributing materially to the character. If that were so, one could argue that every mention of a character contributes to them, as it is one more scenario that demonstrates their character and behaviour. In my view, the clock on protection of a character begins when that character is sufficiently constituted to attract protection. In Canada, that would be when the character is sufficiently distinctive, thorough, and complete.1 Any other interpretation would allow rightholders to continually extend the copyright of a character by adding additional detail to them by placing them in new situations. This would effectively extend copyright protection beyond its original intention, and tip the balance towards rightholders and away from users. However, we will have to wait and see how the American court decides in the case of Sherlock Holmes and the Adventure of the Copyright Court.
1 – Halsbury’s Laws of Canada, Copyright, HYC-17.