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How is a character in a literary work, as distinct from the literary work itself, protected by copyright? This issue may arise in the case of fan fiction, sequels and parodies, where a character from an existing work is used in the new work, without many of the other elements of the original work being copied.
A United States court has recently considered the copyright protection of the fictional characters Sherlock Holmes and his colleague and friend, Doctor John Watson. It found that the characters are in the public domain, other than their characteristics that were only introduced in stories which are still under copyright. However, especially in Australia, the copyright protection of a character separate from the literary works in which he or she appears is not simple.
The Sherlock Holmes decision
The recent case came about because an expert in the Sherlock Holmes canon, Leslie Klinger, wanted to have published a collection of new stories inspired by and featuring the Sherlock Holmes and Dr Watson characters. However, he and his publisher had been threatened by the owner of copyright in the Sherlock Holmes stories (a company owned by members of the late Sir Arthur Conan Doyle's family) with an infringement claim unless a licence was obtained. He sought a declaratory judgment that no permission would be required to use various story elements. The elements in question are listed in his statement of material facts, and include various characteristics of Holmes and Watson, as well as a number of other characters.
The Sherlock Holmes character is in an interesting position in the US, because it was developed over a number of novels and stories by Conan Doyle, which have different copyright statuses under US law. Copyright in the novels and most of the stories has expired, but there remain ten stories that are still protected by copyright in the US. This is because when the term of copyright protection was extended in 1998, the extension applied only to works published in 1923 or after, so it only affected some of the Sherlock Holmes stories.
The Court found that the plaintiff was only entitled to a declaratory judgment that he was entitled, without permission, to use the story elements that were introduced in the pre-1923 stories. The story elements that were only introduced in the post-1923 stories were still protected by copyright (including that Dr Watson had a second wife and a background as an athlete).
The copyright owner had argued that the characters of Sherlock Holmes and Dr Watson would remain protected by copyright for as long as any of the stories were within their copyright term, on the basis that they were complex characters developed over the course of all of Conan Doyle's works. The Court rejected this argument, and instead followed authority that had held that 'increments of expression' in later works, including storylines and character traits, can be protected by copyright separately from earlier, related works. This applies even if it means that characteristics of individual characters are effectively divided between copyright protection and the public domain until all of the works delineating these characteristics have entered the public domain.
Copyright in literary characters in Australia
In this case, the plaintiff was apparently concerned about protecting his right to create 'derivative works' based on Conan Doyle's works. A derivative work is defined in US law as one that is based on one or more existing works. Previous case law referred to by the court has held that a sequel or series featuring the same characters as an earlier work is a derivative work.
In Australia, it is less clear that a literary work featuring characters from an earlier work would necessarily infringe any copyright in the earlier work. This is because there is no exclusive right of a copyright owner to create derivative works. The adaptation right in relation to literary works is limited to the creation of translations, picture versions, dramatic versions (of non-dramatic works) and non-dramatic versions (of dramatic works).
Accordingly, in Australia, the Sherlock Holmes character as delineated in Arthur Conan Doyle's works would (if still protected by copyright) only be protected from being appropriated for use in another novel or short story by the reproduction right. An Australian court would need to consider whether a sufficiently substantial part of a copyright work was reproduced via the appropriation of one or more characters, and any other related story elements, from the work. This would depend on a consideration of the distinctiveness of the character in the original work and the quality and quantity of the elements of the original work that had been reproduced. US law appears not to require the same amount of appropriation as would be required in Australia to make out reproduction of a substantial part, and thus provides stronger protection to literary characters.
Although the outcome in the Sherlock Holmes case seems reasonable on its face, it will not necessarily be easy to apply in practice. It seems to us that it would be difficult to determine when a particular character trait was introduced, and whether it has been used in a subsequent work. A character is developed not only by simple references to his or her characteristics, but by descriptions of their thoughts, interactions and actions. To what extent will a court need to delve into literary interpretation in order to determine the traits that been bestowed on that character, and when that trait was developed?
Conan Doyle's estate has also filed an appeal, so perhaps the sequel will provide some more answers.
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