The Netflix movie Enola Holmes is based on a series of young adult novels by Nancy Springer, The Enola Holmes Mysteries, published between 2006-2010 by Penguin Random House. The series centers on Sherlock’s teenage sister Enola, a newly created character by Springer. In June 2020, just months before Enola Holmes premiered, the Estate of Sir Arthur Conan Doyle sued Springer, Netflix, Legendary Pictures, the director Harry Bradbeer, and the screenwriter Jack Thorne in federal court alleging copyright infringement of the Sherlock Holmes character created by Doyle. The lawsuit claims that the film character of Sherlock (played by Henry Cavill) infringed the copyright-protected character, Sherlock Holmes, by depicting a warmer, more emotional version.
Sir Arthur Conan Doyle published his first Sherlock Holmes story in 1887 and his last in 1927. He wrote a total of four novels and fifty-six short stories. The US copyrights to forty-six of those stories and the four novels have expired (all published before 1923). The US copyrights on the remaining ten stories expired or will expire between 2018-2022 (95 years after the publication dates between 1923 and 1927).
According to the Estate, the Sherlock in the four novels and forty-six stories that are in the public domain was aloof and unemotional. Subsequently, the author lost his eldest son and brother during WWI, prompting him to change the brilliant and analytical Sherlock to be more human. According to the author, Sherlock needed to explore his emotions. He needed to be empathetic. He needed to connect with others. He needed to respect women. Sherlock went from “cold and critical to warm, respectful, and kind.” These attributes in the new Sherlock, the Conan Doyle Estate claims, is what the Springer novels and the Enola Holmes movie infringed.
Netflix and the other defendants argued that, if you strip away the part of Sherlock in the public domain, i.e., the cold and critical Sherlock, what’s left is a character who is more emotional. Feelings and emotions are not protectable because these are ideas. Copyright law does not allow ownership of generic concepts like kindness, empathy, and respect.
How did the case play out?
My guess is the Doyle Estate was overreaching with their copyright but who knows which party would have prevailed. The case was settled before the issues could be litigated. The takeaway for you as a writer is that you should understand what is and is not protected under the copyright law for fictional characters.
Copyright protection for fictional characters
What can authors protect and what can others use? The short answer is: Copyright laws protect fictional characters provided the characters are sufficiently unique and distinctive. Legal protection for fictional characters is separate from the legal protection extended to the underlying creative work like the book or movie. Some characters also are well known enough to receive trademark protection too. Writers may only use copyright and/or trademark protected characters without permission under limited circumstances like when the use is considered fair or de minimis, or if the characters have entered the public domain.
If an author creates a sufficiently unique and distinctive character, the character merits copyright protection. Stock characters such as aliens, ninjas, military sharpshooters, or robots are not distinctive enough to rise to the level of protection. But get detailed in your expression of a character, and shazam, copyright protection exists. For example, a general alien lacks protection. Not so for a big-headed alien with a long neck who wants to phone-home. A robot gets zilch. But a gold-clad humanoid robot programmed for etiquette and protocol reaps the benefits of copyright protection. A wizard, no. A young wizard with untidy black hair, round glasses, and a lightning bolt-shaped scar on his forehead, yes. You get the picture – distinctive and well-defined.
If your fully realized character fits these limits, you are in luck. Your distinct creative expression is enough to merit legal protection to prevent others from using the character’s image and expression without your permission unless limited circumstances apply.
When can others use a copyright-protected character without permission?
While copyright law grants authors a monopoly over the use of their work, there are situations where that right is significantly limited if it falls within the fair use exception. Courts use a fact-specific test with four factors when making a fair use determination.
To determine if an infringing work falls within the fair use exception, courts weigh these four factors:
- The purpose and character of the use;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used; and
- The effect on the market of the copyrighted work.
While all factors are not equally important in every case, all should be considered when making a determination if the defense of fair use might apply to the use of copyright-protected work in question. When it comes to using copyright-protected characters, factors 1 & 4 are the most important.
Normally, the first factor involves the use of the copyright-protected material for criticism, comment, news reporting, and teaching which are all strong fair use factors. Factor one also covers the use of the copyright-protected material for parody, satire, and derivative work that is transformative (i.e., the original is transformed by adding new things to the work). The more transformative a work, the less important the other factors are, and the stronger the fair use claim becomes. In addition to the above, courts also look at whether the use is commercial or non-commercial. For most writers, the use of a copyright-protected character for new creative work will almost certainly be for commercial purposes, which weakens your claim of fair use.
Factor four is viewed with the impact on the market for the original characters. If the effect on the market value of the original content is minimal, say like fan fiction offered for free (see below), then your fair use claim is stronger. But if the use of a copyright-protected character cuts into an author’s market, any claim to fair use quickly disappears.
If you intend to rely on fair use when using a copyright-protected character, do your homework. It would be a huge hassle to find out in court you couldn’t play your get-out-of-jail-free card.
De Minimis Use
If the amount of material copied from the character is small enough, the court may permit the use without conducting a fair use analysis. There is no clear line test for de minimis use. Courts review each use on a case-by-case basis to determine if enough of the copyrighted work has been used to reach copyright infringement. If someone’s character makes a cameo appearance in your work or you mentioned the character in passing, most likely the use is de minimis and permitted.
Some authors are extremely protective of their characters (like the litigious Estate of Sir Arthur Conan Doyle) and are known to sue if their characters are used in any way without their permission. Do your research on the author. Find out if others have used the author’s characters and if the use ended with legal repercussions. Then decide for yourself if the use of the copyright-protected character is worth the risk.
Public domain is a legal term and a fairly detailed area of law that refers to creative materials not protected by intellectual property laws (i.e., copyright, trademark, or patent). In general, when creative work enters the public domain, the public owns it and anyone can use it without securing permission. Once the work is in the public domain, no one owns it.
When does a character enter the public domain?
The law is somewhat confusing but generally, there are four ways a character becomes public domain material.
- Characters published before January 1, 1923, are in the public domain due to copyright expirations.
- Characters published between 1923 and 1977 enter the public domain 95 years after their first publication date (so characters published in 1923 entered the public domain as of January 1, 2019). Two additional possibilities exist for characters published in this time bracket to enter the public domain:
- If a character was published before 1964 and the copyright owner failed to renew the copyright; or
- If a character was published before 1978 without a proper copyright notice.
- Characters created after 1977 enter the public domain 70 years after the creator’s death. Characters created by a corporation enter the public domain either 95 years after publication or 120 years after creation, whichever comes first.
- The copyright owner dedicated the character to the public domain.
Two additional caveats:
Just because a character’s copyright has expired does not automatically mean the character is in the public domain. Some characters are protected under trademark laws too (see below). While copyrights do not last forever, trademarks do as long as the owner continues to use the trademark property in commerce.
There are plenty of great characters in the public domain from stories like Alice’s Adventures in Wonderland, The Wonderful Wizard of Oz, The Little Mermaid, Rapunzel, Snow White, Aladdin, Sinbad, and Ebenezer Scrooge. If a character you want to use is in the public domain, make sure the version you use is not a modern depiction created by someone else or the author, like with the emotional Sherlock Holmes (which may have been a stretch in my opinion), or the monster from Mary Shelley’s novel Frankenstein (which is in the public domain). Shelley’s Frankenstein is much different from the Frankenstein created by Universal (which is not in the public domain). Mary Shelley did not write about a green-skinned, flat-topped, bolts-in-the-neck monster.
Popular books, movies, or cable shows often inspire devoted fans to write their own fictional stories about beloved characters, settings, or plots. These works, known as fan fiction, are works of fiction with new adventures, reimagined worlds, and creative relationship pairings for their favorite characters. While fan fiction is a popular means for fans to creatively express their admiration for an author’s work and connect with the characters they love, it is technically still copyright infringement.
Fan fiction thrives because some authors choose to allow it. Creators of original content have always been divided on how to handle fan fiction. Responses have ranged from indifference, appreciation, and encouragement, to flat-out opposition. Authors like Neil Gaiman have no objection to fan fiction as long as people are not commercially exploiting his characters. Stephanie Meyer approves of fan fiction and has a list of fan fiction sites on her website. Other authors embrace fan fiction but with limitations. J.K. Rowling and George Lucas will not tolerate pornographic fan fiction about their characters. While other authors like Orson Scott Card and Anne Rice, who once opposed fan fiction entirely, have softened their stance over time and now tolerate it.
If the characters and stories of an author passionately move you to write fan fiction, make sure your fictional stories are legally compliant and follow an author’s wishes. A little up-front work will protect you in the long run. If you need more information about fan fiction, see my earlier article: The World of Fan Fiction – Where Creative Expression and Copyright Collide.
For those characters that lack distinctiveness and seem common, feel free to pilfer, embellish, and use as inspiration for your own version.
Trademark law protects consumers by helping them reliably identify the source of a good or service so there is no likelihood of confusion. Typically trademarks are usually logos, slogans, and business names, but trademarks also include characters provided the character is used with goods or services (like a logo, sticker, or toy packaging). The trademark must be used in connection with the use or sale of goods or services. Trademarks, unlike copyrights, do not expire as long as the owner continues to use the mark in commerce.
When does a fictional character merit trademark protection?
If the character has acquired secondary meaning then trademark protection applies, which is another way of saying the character’s name and/or graphical representation is sufficiently well known that the public would associate the character with an author or corporation – like Jack Reacher, Harry Potter, Mickey Mouse, or any of the various Marvel characters.
Like with copyrights, a writer can assert a trademark fair use defense. There are two types:
- Descriptive Fair Use permits the use of another’s trademark to describe the user’s products or services, rather than as a trademark to indicate the source of the products or services.
- Nominative Fair Use permits the use of another’s trademark to refer to the trademark owner’s actual goods and services associated with the mark.
Basically, remember that mentioning a trademark protected character like Harry Potter in your book will not land you in litigation, nor will using the name Harry Potter to refer to the Wizarding World of Harry Potter Theme Park. But should you use the name Harry Potter to run an unauthorized festival celebrating the J.K. Rowling series, then prepare for litigation.
Photo Credit: Netflix
Legal Disclaimer: The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer, who is also a lawyer, helping other fellow writers learn about publishing law-related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.