Neither Sherlock Holmes nor Donald Trump are far from the television screen at present. Trump’s latest exploits share screen time with the return of Benedict Cumberbatch’s Sherlock, the current series of which ends on January 15. But somewhat surprisingly, the two are also connected by the idea of anti-intellectualism.
Trump won the White House on the basis of a populist disdain for experts, the spectre of the educated liberal elite, and the valuation of common sense over theory. Anti-intellectualism pervades our wider culture: soft drink commercials show boring university lectures explode into joyous life when someone cracks open a can; the recently established “Which University?” suggests that higher education is a decision similar to buying a washing machine.
At first, Holmes treats the request as only a mild curiosity, but then the countess of Morcar’s rare and valuable blue carbuncle is found stuffed down the goose’s throat. The pursuit of the thief leads Sherlock Holmes and Dr. Watson from 221B Baker Street to Covent Garden Market and all over the streets of wintery London. It is hardly believable that there’s yet another Sherlock Holmes ripoff/spinoff – the genre named by the late critic Gilbert Adair “Shlock Holmes”. But here is Sherlock’s little-known.
But Holmes? Surely Sherlock Holmes represents the height of intellectualism, the rationalist expert? As readers and viewers, we rely on Holmes’ expertise to solve the mystery and restore order, but Doyle’s stories and their adaptations also suggest that Holmes’s intellect is also faintly monstrous. Equally, the cry of “high functioning sociopath” echoes throughout the BBC’s Sherlock, signalling that the values of the intellect are supposedly not those of social humanity.
The Victorian Holmes
The Case-Book of Sherlock Holmes was adapted for BBC Radio 4 in 1994–1995 as part of the Sherlock Holmes 1989–1998 radio series. All the stories in the collection were adapted as episodes of the radio series The Classic Adventures of Sherlock Holmes (2005–2016). Other adaptations of stories within the collection have also been produced. The success of the initial Sherlock Holmes stories enabled Conan Doyle to give up his medical practice in 1891 and devote himself to writing; however, the author grew tired of his creation.
Holmes as rationalist superhero is a familiar narrative of histories of popular culture. The accelerating pace of life in the Victorian period, so the argument goes, called for the creation of a new kind of fictional hero able to decode the overwhelming signs of urban modernity. But this argument overlooks a crucial point: the intellectual qualities that made Holmes a hero also made him a figure of suspicion.
Sherlock Holmes Is On The Case Again.. Made
The detective was not an immediate success. Arthur Conan Doyle’s first two Holmes novels, A Study in Scarlet (1887) and The Sign of the Four (1890) initially received limited attention and unenthusiastic reviews, in part owing to their aloof and overly specialised hero. In these novels, Holmes euthanises an elderly terrier to test a hypothesis; elsewhere, Watson describes him as “a calculating machine” with something “positively inhuman” about him. And when Watson surveys Holmes’ areas of knowledge, he finds him comprehensive in some areas and curiously lacking in others. Holmes is strong on chemistry and good on anatomy, but knows nothing about literature, astronomy, or politics.
The early Holmes’s narrow areas of expertise are decadent in the sense that the late Victorian psychologist and criminologist Havelock Ellis defined decadence: as the part obscuring the whole. Moral health is to be found in being an all-rounder, rather like Doyle himself (a medical general practitioner who wrote in a range of genres, and was skilled at seemingly every sport played in the early 20th century). Holmes is expert in often obscure subjects but his ignorance that the earth revolves around the sun satirises intellectual specialism.
Holmes’s success came in 1891, when Doyle moved to the short story format of the Strand Magazine. Holmes, too, changed subtly. His knowledge becomes slightly more rounded, his character less abrasive, and his cocaine use largely disappears. Yet the sense remains that an unerring intellect is somehow only partially human.
It is no coincidence that Holmes finds his fandom at the moment that his intellect fails. In the first story, A Scandal in Bohemia, Holmes is outwitted by the opera singer Irene Adler, a character gleefully reinvented as dominatrix in the BBC’s Sherlock. Another story, The Yellow Face, sees Holmes completely misinterpret events in Norbury. As he says to Watson, “If it should ever strike you that I am getting a little over-confident in my powers, kindly whisper ‘Norbury’ in my ear.” This scene is restaged at the end of recent Sherlock episode The Six Thatchers. Like recent political campaigns, audiences seemingly need to be reassured that experts cannot always be relied upon.
Our monster
The most recent adaptations of Holmes make explicit what is implicit in Doyle. If Doyle occasionally compared Holmes to a machine, Sherlock makes him a monster. “But he’s our monster,” says Mary Watson, quoting the 1986 film Murrow’s exploration of McCarthyism; the phrase has since frequently reappeared on the internet with reference to Trump.
The BBC’s Sherlock is the latest appearance of a trend evident from the 1970s onwards, when adaptors reacted against the heroism of the wartime Basil Rathbone Holmes. Rathbone’s Holmes presented the authoritative English hero, with whom the audience were expected to identify at the expense of Nigel Bruce’s dunderheaded Watson (a characterisation that overlooks much of the subtlety of Doyle’s Watson). By contrast, postmodern adaptations seek to constrain Holmes, to question easy heroics: films such as The Seven Per Cent Solution (1976) and Young Sherlock Holmes (1985) rendered Holmes traumatised or adolescent.
This is not to say that Holmes’s powers are diminished, but that his more recent incarnations rely on an anti-intellectual subtext that suggests that exceptional mental ability always carries a cost. The opening scenes of the current series of Sherlock show Holmes unable to function socially because he is busy solving multiple mysteries, a scene unthinkable of Doyle’s more urbane original.
Indeed, series such as Sherlock and Guy Ritchie’s films paradoxically render Holmes’s intellect less threatening by elevating it to absurd heights. In The Lying Detective, for instance, Sherlock is able to predict intricate events weeks in advance. If Doyle’s skill lay in keeping Holmes’s powers on just the other side of plausibility, Sherlock reinvents the detective as an ultimately all knowing god, a fantasy figure who need not disturb us in reality.
Holmes’s intelligence helps order our world, but in modern adaptations it has become a curse or pathology. Not everyone can be Holmes, but in his monstrous contemporary form surely hardly anyone would want to be Holmes. In asking why Holmes continues to appeal, maybe it is a mistake to focus on Sherlock himself. It is not so much Holmes’s intellect that changes, but how others react to it.
In a suit filed recently in federal court in Chicago[1], a top Sherlock Holmes scholar alleged that many licensing fees paid to the Arthur Conan Doyle estate have been unnecessary, since the main characters and elements of their story derive from materials in the public domain. The suit was brought by Leslie S. Klinger, the editor of the 3,000-page “Annotated Sherlock Holmes” and other Sherlock Holmes-related books. It stems from his book “In the Company of Sherlock Holmes,” a collection of new Sherlock Holmes stories by various authors, edited by Klinger and his co-editor Laurie King to be published by Pegasus Books.
The creator of Sherlock Holmes was Arthur Conan Doyle. He published most of his Sherlock Holmes stories from 1887 to 1927. One might think that Sherlock Holmes is now in the public domain and any writer could freely borrow his character for inclusion in their own story. However, some of Doyle’s stories were published in periodicals as late as 1927, they may be within the protection of U.S. copyright laws. Works published before 1923 are most likely in the public domain, at least under U.S. law. For those stories published after January 1, 1923, they could remain protected until 2023.
According to the lawsuit all the Sherlock Holmes stories entered the public domain under the laws of the United Kingdom and Canada in 1980. However, with the passage of the U. S. Copyright Act of 1976 the author of a work that had passed into the public domain in the United States, or his heirs, were entitled to restore the work to copyright in the United States under certain conditions. In 1981, Dame Jean Conan Doyle, the last surviving child of Sir Arthur Conan Doyle, applied for registration of the copyright to “The Case-Book of Sherlock Holmes,” a collection of stories. This work is comprised of 12 stories that were first published in various periodicals between 1921 and 1927, and the collection was first published as a book in the United States in 1927.
Sherlock Holmes Is On The Case Again.. Series
The complaint asserts that the Doyle estate sent a letter to Pegasus Books threatening to prevent publication of “In the Company of Sherlock Holmes” unless it was paid a license fee. Kingler’s prior publisher, Random House, had reluctantly paid $5,000 fee for an earlier Klinger collection he edited titled “A Study in Sherlock,” even though Klinger believed he was not legally required to do so. The suit asks the court to make a declaratory judgment, establishing that the basic “Sherlock Holmes story elements” are in the public domain under U.S copyright law. Klinger claims that the stories in his new collection avoided drawing on copyrighted elements introduced in any of the Holmes stories published after January 1, 1923.
In a 2004 decision, a U.S District court judge Naomi Reice Buchwald determined that of Doyle’s 60 Sherlock Holmes stories, nine might still be under copyright.[2]Although the character of Sherlock Holmes is in the public domain, various storylines, dialogue and characters that first appeared in these nine stories could be protected under U.S. copyright law. A copyright for a derivative work based on a prior work does not create copyright protection retroactively for the underlying work but can protect new material that has been added.
Sherlock Holmes continues to be an enormously popular character, even though he is 125 years old. He was recently featured in two Warner Brother films, the BBC’s “Sherlock,” and the television series “Elementary.” The most recent Warner Brothers film “Sherlock Holmes: A Game of Shadows,” starring Robert Downey Jr., had an international box office gross of $543 million from distribution in more than 50 countries.
Robert Downey Jr. as Sherlock Holmes
The case raises the issue of which elements of the Sherlock Holmes stories are in the public domain, and which may remain under the protection of copyright law. Copyright can sometimes, but not always, protect characters and plot. Recognition of copyright protection for fictional characters goes back to Judge Learned Hand, who suggested that characters might be protected, independent from the plot of a story. He wrote “It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.” So, while a writer cannot secure a monopoly on hard-boiled private eyes, one could protect a finely drawn character like Sam Spade.
While plots can be protected, stock scenes cannot. The doctrine of scènes à faire excludes from copyright protection scenes that flow from common unprotectable ideas. These would include “thematic concepts or scenes which necessarily follow certain similar plot situations” and ordinary literary incidents and settings which are customary for the genre. Thus, a writer cannot preclude others from using such common devices as a car chase or cattle drive in their stories.
The situation becomes even murkier when one considers that the Sherlock Holmes stories are subject to a confusing web of differing copyright laws across the globe. There is no such thing as an “international copyright” that will protect an author’s work everywhere. Protection against unauthorized use in a particular country depends on the laws of that country. In other words, Copyright law is applied territorially by every country within its borders. Thus, the duration of copyright protection differs from country to country. Each country enforces its own laws, irrespective of the nationality of the author, or where the work was created or first published. The United States has joined several international copyright conventions to protect American works from infringement in foreign countries. These accords essentially provide for reciprocity of treatment for authors. For example, France agrees to protect the works of American authors in France. In return, the United States protects the work of French authors in the United States.
This means that the United States will protect a French author in the United States in the same manner and extent as the United States protects American authors. It does not mean that French authors will have the same rights in the United States that they have in France under French law. Thus, it is often said that copyright laws are territorial in their application. French law applies in France; American law applies in the United States. This application can produce unexpected results, because American copyright law and French copyright law are quite different. American law focuses on economic rights while French law protects author’s creative rights. The issue of whether a work is in the public domain can vary from jurisdiction to jurisdiction, because each country applies its own laws. This poses a potential minefield for publishers of works with international appeal.
U.S. law recognizes the work-for-hire doctrine under which the “author” of a work can be the employer of an artist, not the artist himself. Few countries recognize this doctrine. On the other hand, some countries have doctrines that do not exist under U.S. law. France expressly recognizes the moral rights (“droit moral”) of authors. U.S. copyright law only recognizes moral rights in the realm of fine art. Moral rights prevent others from changing the author’s work (the right of integrity), or removing the author’s name from the work (the right of paternity), even if the author has sold the work and the copyright to it.
Under French law, the rights of integrity and paternity are perpetual, inheritable, inalienable and imprescriptible. Thus, the heirs of an artist can object to the use of their ancestor’s work, even if that work’s copyright has expired.
Sherlock Holmes Is On The Case Again.. Summary
In Huston v. Turner Entertainment,[3] the late American director John Huston was determined by a French court to be the author of the American film “The Asphalt Jungle.” Under American law, Huston’s employer was the author or owner. When Turner Entertainment which had acquired the film, sought to distribute a colorized version of it in France, over French television Channel 5, Huston’s heirs initiated an action in the French Courts under the French moral rights law, seeking an injunction and damages against Turner and Channel 5.
The French Supreme Court ruled that the transformation of the work from a black and white film to a colorized version was a breach of Huston’s moral rights, even though these rights were not recognized in the United States. It did not matter that Huston was a U.S. citizen directing a movie for a U.S. company (MGM), which was shot on the MGM lot in Los Angeles. Moreover, the contract with Huston granted MGM all rights, and provided that American law would govern any dispute. France’s highest court found for Huston’s heirs on the grounds that French moral rights laws may not be violated in France regardless of the terms of a contract made elsewhere. The court held that it was against public policy to permit foreign law or foreign contracts to change the French system of moral rights within France. Ultimately, the French courts entered judgment against Turner Entertainment for 400,000 francs and against French Channel 5 for 200,000 francs, and prohibited distribution of the colorized film in France.
So, while Sherlock Holmes is a brilliant detective, even he may find it difficult to sort out the conflicting copyright laws of different nations.
[1]Klinger v. Conan Doyle Estate, Ltd., 1:13- cv-01226, U.S. District Court, Northern District of Illinois (Chicago).
Sherlock Holmes Is On The Case Again.. Case
[2] Pannonia Farms, Inc., v USA Cable, 2004 U.S. Dist. LEXIS 23015; 72 U.S.P.Q.2D (BNA) 1090
[3] Huston v. Turner Entertainment, French Court of Cassation, 1991, cited in article “International Copyright Litigation in U.S. Courts: Jurisdiction, Damages and Choice of Law” by Lionel S. Sobel; Emerging Issues in Intellectual Property Practice, CEB Program Handbook, p. 83, April 1994, California Continuing Education of the Bar.