People who have seen “Frankenstein” movies but who have not read Mary Shelley’s 1818 novel are sometimes amused to learn that Victor Frankenstein’s creature educates himself by reading, among other things, Milton’s “Paradise Lost” (see “Frankenstein,” Chapter 15). I once heard a professor of literature say that by making this allusion, Shelley may have wanted to assert that if Milton’s poem is about the problems that arise when God makes human beings, then Shelley’s novel is about the far more horrifying problems that arise when a human being, equipped with neither omniscience nor omnipotence, tries to make a human being. A good point for literary critics to keep in mind when interpreting characters, because we tend to write about literary characters, especially characters we like, as though they are living people. Obviously, they are not people: they are works of art, illusions, fragmentary, partial portraits and therefore incomplete, like Frankenstein’s creature, even when they are delineated in great detail. This is an objection that can be raised in regard to the way the Conan Doyle Estate (the CDE) writes about Sherlock Holmes in its September 10, 2013, brief in response to the motion for summary judgment filed by Leslie Klinger (the case is Klinger v. Conan Doyle Estate, Ltd. and is currently pending in the U.S. District Court for the Northern District of Illinois. See my earlier article,“Get Sherlock” for more background on this case).

The central issue in this case is whether the characters of Holmes and Watson, as created in the entire series of 60 Holmes stories by Sir Arthur Conan Doyle, are protected by copyright because 10 of the 12 stories in “The Case Book of Sherlock Holmes” were published after 1923 and therefore are still under copyright protection in the U. S. or, whether all of the pre-1923 character details and aspects are now in the public domain because the works in which those character aspects appeared are now too old for U.S. copyright protection. Klinger wants the court to rule that everything pre-1923 is fair game so that he can publish an anthology of Holmes stories written by contemporary authors. The CDE wants the court to rule that the characters of Holmes and Watson deserve continued protection under U.S. Copyright law even if the majority of the works in which their character traits are delineated are now in the public domain. “Plaintiff suggests that Holmes and Watson can be dismantled into partial versions of themselves,” asserts the CDE, “but a complex literary personality can no more be unraveled without disintegration than a human personality.” The CDE supports this assertion by pointing out that Conan Doyle did not create the characters in a linear way because in “The Case Book of Sherlock Holmes” he added details about the lives of Holmes and Watson as young men.

A glib way of describing the CDE’s argument is that it wants the court to rule that Holmes and Watson have souls. The souls of these characters are unitary, indivisible and so they cannot be divided from the entire series of 60 stories: “The arc of the character exists complete only in the series” and therefore, the CDE argues, “it is impossible to split the characters into public domain versions and complete versions.” If this is accepted as a thesis, then it follows that the souls of Holmes and Watson must be protectable under copyright separate from the works in which they exist because the majority of those works are now so old that they lie in the public domain and out of copyright protection. Is this argument just self-serving, fanciful metaphysics on the part of the CDE? Perhaps not, because legal precedent exists for protecting characters separately from the works they inhabit. The theory originated with the revered Judge Learned Hand who said, in 1930, that “the less developed the characters, the less they can be copyrighted,” and it has been applied to protect not only cartoon characters such as Mickey Mouse (clearly copyrightable as a work of graphic art), but also the character personalities of James Bond, Rocky Balboa and Rhett Butler. The problem for the CDE in grounding its metaphysical argument in law is that the line of precedent is thin, it does not come from the Seventh Circuit in which the court sits, it is not precisely on point and it relies on the expert copyright opinion of Professor Nimmer, which does not explicitly support the CDE. Nimmer addresses the precise Holmes circumstances hypothetically: “What of the situation where an author has used the same character in a series of works, some of which works subsequently enter the public domain, while others remain protected by copyright?” Without hesitation Nimmer says that anyone may copy the “elements” that have entered the public domain, which appears to support Klinger in this case, but Nimmer does not clearly define what he means by the term “elements.” However, Nimmer impliedly distinguishes characters from elements because he says that “the more difficult question” is whether the character as depicted in the whole series of works can be used by another author in a new story without infringement. He answers this by asserting that while the CDE’s position is “arguably” valid, “the better view” is that “once the copyright in the first work that contained the character enters the public domain, then it is not copyright infringement for others to copy the character in works that are otherwise original.” See: Nimmer on Copyright §2.12. Professor Nimmer’s argument takes into account something passed over by the CDE: while Conan Doyle may not have created the details of Sherlock Holmes’ life in a linear manner according to the progress of time in that imaginary life, Conan Doyle necessarily worked sequentially in real time in writing the 60 stories. Therefore, the building up of the complexity in Holmes’ character has sequence and is analogous to the work of a wood craftsman who applies layer upon layer of lacquer to a piece of furniture until, over time, the finished product has both depth and a distinctive shine that brings out the uniqueness of its grain.

While the CDE’s legal argument is somewhat gossamer in substance, it may have succeeded in raising enough doubt about the facts of the case to defeat Klinger’s summary judgment motion. If so, and if this case goes to trial, the CDE will be asking the court to take up the ambition of Victor Frankenstein and to create life by bestowing on Sherlock Holmes and Doctor Watson a spiritual existence that allows them to stand apart from the stories that have fallen off the edge of copyright protection and into the public domain.