Enola Holmes case: are Sherlock Holmes’ emotions protected by copyrights?

Created by Sir Arthur Conan Doyle in 1887, the famous private detective Sherlock Holmes (the “Author” and the “Character”) became one of the world’s best-known fictional characters, featuring in many big-screen adaptations. Now, the mystery adventure movie “Enola Holmes,” featuring the detective’s sister and based on Nancy Springer’s “The Enola Holmes Mysteries” book series, produced and distributed by Netflix, raises the question of the extent to which intellectual property rights protect fictional characters and, in particular, whether they extend to characters’ emotions.

This dispute arose when the author’s heirs filed a claim before the District Court for New Mexico against Netflix, producer Legendary Pictures, author Nancy Springer and publisher Penguin Random House, citing infringement of their intellectual property and trademark rights on the Character. In particular, they claim that the detective, as depicted in the new production, displays excessive feelings and a clear respect for women, which, in their opinion, infringes intellectual property rights in accordance with the values and principles of the universe created by the Author and how these evolved throughout his different creative phases.

It is precisely the concept of creative evolution that would endorse the heirs’ position, albeit with qualifications. Most of the works created by the Author, forming the “Holmesian” universe are already in the public domain, as the protection period set out in the intellectual property regulations has lapsed and, therefore, they do not benefit from copyright protection. Only ten stories featuring the famous detective remain under copyright protection in the United States. The Author’s personal and creative evolution is central to this point.

According to his heirs, the ten protected stories were written after World War I, a hugely significant event for the Author that brought about a change in his personality and how it was reflected in his works. They acknowledge that the Character in the works prior to 1914 — which are no longer copyright protected — was “cold, distanced and averse to showing feelings,” but when the Author lost his son and brother in the war, the traumatic event led him to give the Character “more human” qualities and empathy after 1923 — characters still protected — and it is precisely these emotional traits of the Character that are shown in the new Netflix motion picture.

In addressing the issue of whether the disputed production infringes intellectual property rights on the Character’s “emotional” characteristics, we must recall two points: (i) a fictional character is one element among others in a literary or artistic work, which is protected as a whole, and is only eligible for separate protection by intellectual property rights if it meets the requirement of originality under intellectual property regulations (in Spain, established in Royal Legislative Decree 1/1996, of April 12, approving the consolidated text of the Spanish Intellectual Property Act); and (ii) mere ideas (e.g., a generic character, such as a detective) are not protected.

Consequently, for a fictional character to benefit from copyright protection, it must have “autonomous symbolic value,” that is, it must be original. The examination of the character’s originality will ultimately depend on the outcome of the analysis of both their objective traits (i.e., physical appearance) and their subjective traits (i.e., character, beliefs or talents forming their personality), and whether these as a whole make the character easily recognizable even out of the context of the central work.

Protection of fictional characters has been interpreted on numerous occasions in US case law, making it an interesting jurisdiction for the purposes of the case at hand. In particular, case law has established two tests to determine whether a fictional character can be autonomously protected: (i) the story being told test, focused on the role it plays in history; and (ii) the distinctive delineation test, which establishes that a lower level of distinctiveness of a character determines a lower level of protection by intellectual property rights. In Spain the recent judgment 509/2019 of the Provincial Court of Appeals of Navarre defines the scope of intellectual property rights on drawings, albeit tangentially, by distinguishing the specific drawing and the characters contained in it.

A priori, we can consider that the Character has distinguishing traits that, as a whole, make it easily identifiable in the different contexts in which it has been represented and, therefore, it is an original creation eligible for protection. A different matter, on which the District Court will have to rule, is whether only “emotional” traits can constitute this originality. Another issue that is far from resolved is whether a character’s “evolution” can generate independent or separate protection on the new version, assuming, as in this case, that the initial version of the Character is already in the public domain.

Future additions to Enola’s universe will largely depend on the District Court’s response to these matters. A ruling favorable to the claimants, that is, admitting autonomous protection of emotional traits of the Character by intellectual property rights, would open the door to different versions of the characters appearing in each individual work in an original series being protected by independent and different copyrights.

Be that as it may, and regardless of whether the judgment resolving the case sides with them on this point, the heirs have included a trademark infringement action based on protection under trademarks registered to them on the different characters of Conan Doyle’s world.

Authors: Marta Zaballos and Nora Oyarzabal