Sunday, September 27, 2020

Enola Holmes and the Public Domain

            I recently watched the new film Enola Holmes on Netflix. The film stars Millie Bobby Brown as Enola, the younger sister of Sherlock Holmes, and it is based on a series of books written by Nancy Springer. It was an entertaining film, but, while I was watching it, I couldn’t help thinking about copyright law and the public domain.

            A few years ago, the editor of an anthology featuring newly written Sherlock Holmes stories sued the Doyle Estate after it demanded licensing fees. I covered this lawsuit, Klinger v. Doyle Estate, Ltd., in a previous blog post on the interplay of public domain law and trademark law. After watching Enola Holmes, I wondered if it faced similar issues.

The Doyle estate filed a lawsuit against Netflix, Nancy Springer, and the book publisher for copyright infringement.[1] The estate claims the novels and movie infringe upon the last 10 remaining Sherlock Holmes stories still protected by copyright. Specifically, the Estate argues the Enola Holmes stories infringe Sherlock Holmes character traits introduced in the last 10 stories. The case is still pending.

While I won’t discuss the pending case in depth, I do want to briefly discuss the public domain. Generally speaking, any creative work that is no longer subject to copyright protection is in the public domain. Once in the public domain, others are free to use the work as they see fit. Works entering the public domain after the term of copyright protection has expired is the bargain granted for the exclusive rights granted to the author during the term of protection.

Enola Holmes is a great example of how this bargain should work. Arthur Conan Doyle created Sherlock Holmes, a character beloved by many for over a century. Most of the Sherlock Holmes stories are in the public domain, and all will be in the public domain on January 1, 2023. Doyle and his estate have had decades to benefit from the publication and licensing of his stories. Springer created a new character set in Sherlock Holmes’ world and new tales drawing on the Holmes legacy. Had she done so while all of the Sherlock Holmes stories were still protected by copyright, it would likely have been an infringement of Doyle’s copyright rights. However, if the stories Springer created drew from public domain stories, then it is perfectly legal.

The creation of new and unique creative works that take from and build upon works that are in the public domain are at the heart of copyright law and “promote the progress of … useful arts.”[2] Enola Holmes embodies this goal.      


[2] U.S. Constitution, Art. 1, Sec. 1, Cl. 8.