Ever wondered about Copyright Law over works in public domain or works which are about to be into one ?

As per copyright law, works which fall under public domain either by voluntary relinquishment or expiry of term after death of owner etc, become works not protected by copyright law. The public owns these works and anyone may use these works without obtaining permission from the owner, but cannot own it. We also find an interesting reference of the same in a recently filed case by Conan Doyle Estate Ltd. (“Plaintiff”) against Nancy Springer, Netflix, Penguin Random House, LLC (“Defendants”) and others in a copyright and trade mark infringement suit. This case could have long term implications on copyright and trademark law, both for Sherlock Holmes specifically as well as other fictional characters that are either in the public domain, or are about to be so.

FACTS OF THE CASE:
1. The said case revolves around the copyright infringement of 10 works of the plaintiff’ depicting the character of Sherlock Holmes over Nancy Springer’s ("Springer") series of six published works between 2006 and 2010.
2. As far as the 10 books of Conan Doyle are concerned they were written between 1923 and 1927. While the copyright over some books have expired the rights in these 10 books still subsisted when Springer wrote her books over Enola Holmes.
3. The plaintiff did not take any action against Springer or the “Enola Holmes” publisher for nearly fifteen years.
4. Following the Netflix announcement, the plaintiff filed the said suit on 23rd June 2020 claiming copyright and trademark infringement in the works of Springer and its online adaptation ‘Enola Holmes’.

ARGUMENTS IN A NUTSHELL
This lawsuit has brought and attracted a lot of hue and cry for the fact that whether or not traits (such as “emotion trait” and “respect trait”) can be copyrighted further classifying works being in public domain or not.

- It has been argued by the plaintiff that as Conan Doyle created Sherlock Holmes and Dr. John Watson in 1887, though few works have expired and have fallen into public domain but in his ten last stories, which are still allegedly under copyright protection, significant new character traits for Holmes being more emotional or respecting woman or being capable of friendship are to be protected.
- The Defendants primarily argue to dismiss the motion as filed. They content that the emotional and respect trait of Holmes are not copyrighted hence not protected nor are they original to the Plaintiff.
- Further, they content that generic, amorphous characteristics – like emotion or kindness cannot be copyrighted. Also drawing reference to Gates Rubber Co. V Bando (10th Cir. 1993) where the 10th Circuit states that it is a “fundamental tenet” of copyright law that “protection extends only to the author’s original expression and not to the ideas embodied in that expression” the defendant seeks to dismiss the copyright claim.
- Also as per 10th circuit in Blehm v. Jacob, the Defendants rely upon the assertion that for determining copyright infringement, courts shall carefully separate unprotected ideas from expressions as copyright only protects “particularised expressions of idea” and not idea”. Hence, these principles also apply to “expression of general feelings, emotions and other personality traits, which constitute unprotected ideas”. Thereby respect and emotional traits fall under the said category.
- The Defendant thereafter makes an interesting submission that even if these traits were copyrightable, which they are not, are unprotected ideas, hence no copyright could be claimed.
- Lastly, the said traits as referred above were already in public domain at the time Springer published her works, hence there cannot be any copyright infringement claim over the same.
- The Plaintiff in the said matter also asserts a trade mark infringement claim as the Defendants use the word “Holmes” which the plaintiff allegedly has a trade mark over. The defendant while arguing the said contention defend the use to be a use which does not cause confusion in the minds of the public, furthermore state that the present case falls within purview of an artist work related to copyrights and no part of the Enola Holmes could be referred to as a trade mark infringement as it does not mislead the public meaning thereby that there is no “explicit indication” that the Defendant endorsed or was involved with the work of the Plaintiff or has mislead public over the source of the said work, and further agues that the Plaintiff cannot circumvent copyright claims by using trade mark law.

ANALYSIS
Overall understanding the matter, it is yet to be seen how the courts shall establish a balance between creativity and copyrights. However, over a bare perusal of the matter reveals that the said copyright infringement claim seems to be a misuse of the copyright laws as it is well established under copyrights that ideas cannot be copyrighted and general traits like happiness, sadness, being unprotected ideas, cannot be copyrighted. Additionally keeping in mind that such works even if were copyrighted, being unprotected ideas and works already under public domain, plaintiff cannot seek copyright. But it seems difficult for the Defendants to dodge the trade mark claim herein as there is indeed reference of ‘Holmes’ in the said matter, where a mere reference to Enola Holmes, gives an impression in the minds of pubic that the said adaption maybe a production of the plaintiff, despite no reference of plaintiff being given by the Defendants. Lastly, not forgetting that the said suit has been filed after a considerable delay, where the said works by Springer were released between 2006 - 2010, raises eyebrows over the conduct of the plaintiff which could be just to extort money from the Defendants (not forgetting the remaining copyright of Plaintiff in its 10 works as held (subject matter of the dispute) expire in 3 years approx.).

By
Anushka Bhardwaj Arora, Principal