With all the “work from home” going on, we’ve all likely been watching more film and TV than usual.
For me, one of the more interesting releases this year is Enola Holmes on Netflix. This is perhaps in part because it’s a UK production (I’m originally from the UK and it’s nice to see big-name films being produced there), but it could also be because of a related complaint filed in the District Court of New Mexico alleging that the film infringes copyright in the original Arthur Conan Doyle novels.
In this post, I will take a brief look at some of the issues raised in the complaint insofar as they pertain to Singapore law and hopefully give you some insight into the more difficult issues that arise in relation to protection of fictional characters in copyright.
The complaint has been brought by Conan Doyle Estate Ltd, a UK limited company formed by Sir Arthur Conan Doyle’s family after his death. The company’s purpose is to manage the copyright licensing of his works.
There are multiple defendants, including the original author of the Enola Holmes Mysteries novels, Mrs Nancy Springer, as well as the film adaptation’s producers and publishers.
The parties to this case come from all over the place. The plaintiff, as previously mentioned, is from the UK. The defendants are from California, Delaware, Georgia, and the UK.
So why was the case filed in New Mexico? Yes, the film was published there, but it was also published in other jurisdictions simultaneously – including Singapore.
Likely the reason is that the District Court of New Mexico is strategically advantageous to the plaintiff in some way. Copyright cases can be brought in any Berne Convention country. Since it’s increasingly common for companies to globally launch copyright materials, it is now more important than ever to give some thought to choice of law before bringing proceedings.
The Conan Doyle estate is alleging that the defendants copied, created derivative works from, and distributed protected copyright works without their permission.
In particular, the complaint alleges that the defendants copied the empathy and concern for well-being that Sherlock developed in the later Conan Doyle books (which, incidentally, are the only ones still in copyright). In earlier Sherlock books, he was unflinchingly logical and cared little for those around him. But in later books, he formed a close bond with Watson, as evidenced by “the warm friendship” displayed by Sherlock when Watson went missing in the books.
This, the plaintiffs say, was copied by the defendants, because they portray Sherlock as having a “deep brotherly love” for Enola in the novel and film adaptation.
If the case was brought in Singapore, the first issue would likely be whether Sherlock’s emotional journey is Conan Doyle’s “original expression”.
The law says that the original expression of an author can be protected by copyright, whereas a mere fact or concept cannot. For instance, anyone can write a screenplay about a “super man” who comes from an alien planet and who has superpowers, but they can’t put him in a red cape and blue spandex with an “S” symbol on his chest.
In general, emotions and ideas for stories about them can’t be copyrighted, so the answer to this first question would involve a close assessment of the text of the novels and the screenplay to see what, if any, of the actual expression had been borrowed.
If the Court found that a substantial amount of the author’s original expression had been copied by the defendants, the next likely issue would be whether the defendants could rely on the fair dealing defence.
The fair dealing defence is a general defence to copyright infringement. It requires the defendant to show that the copying was fair based on a range of factors set out in the Copyright Act, including the purpose and nature of the copying, the amount taken, and the nature of the original work.
The Courts are generally more supportive of the fair dealing defence where the copying is “transformative” in nature, i.e. the where the disputed work has been modified to serve a new purpose or narrative. For instance, in this case, the defendants may argue that the Enola Holmes Mysteries novels and film adaptation examine different themes from the Conan Doyle books, such as women’s suffrage and the relationship between a mother and her daughter.
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The case has not yet gone to trial and may never. Parties to litigation frequently settle the matter privately before the case reaches that stage. This can be a commercially sensible and less expensive option for both sides, depending on the issues at hand.
Ever wondered about how to protect your characters or to what extent copyright can protect them? Ever wanted to use an existing fictional character in your work but been unsure about whether you’re allowed to? Learn how to avoid the pitfalls of copyright and other related forms of IP, and effectively negotiate licensing arrangements via our LES Singapore Basic & Intermediate Licensing Course, offered by IP Academy.