The Many Hats of Sherlock Holmes
Reviewed by Kyu Hee Chu
What do Tony Shalhoub (an OCD-driven detective on Monk), James Roday (a “supernatural” detective on Psych), and Hugh Laurie (an inductive reasoning-driven doctor on House) all have in common? Well, a lot, actually. For starters, the three white males all star in shows with titles that are short and sweet. Interestingly, they also all play similar character-roles—the unconventional problem-solver—on USA Network’s current television lineup. Yet, the three characters were “conceived” by three different creators (Andy Breckman, Steve Franks, and David Shore, respectively). Can any one of these writers secure a copyright for this so-called ‘character-type’?
While the short answer may be ‘no,’ the issue is highly fact-specific and rather complex.
The prevailing rule seems to be that a character-type is copyrightable if the character is “distinctly delineated.” In other words, authors can have a separate copyright protection for the characters in their works only if they have been developed as an original expression. Both elements—originality and fixed expression—are necessary prerequisites. The contribution of a mere original idea of a character is not sufficient to be copyrightable where there is no expression. Some combination of sketching and description of the character must be available.
Some courts require this delineation of “original expression” to be quite extensive, to the point that the character “constitutes the story being told.” As a result of this restrictive burden, obtaining a copyright on a character-type is quite difficult, indeed. If the original expression threshold is met, however, it should be noted, of course, that merchandising items such as toys, games, books and apparel featuring protected character-types are then also protected under copyright and trademark law.
Generic, stock, character-types—such as ‘the nosy neighbor,’ ‘the sidekick,’ and the ‘evil twin’—are not given this copyright protection, as there is no originality with the inclusion of these characters in a work. It is this category of unprotected character-type where the “unconventional problem-solver” so prevalent on USA’s lineup falls.
As with most intellectual property issues, the notion of the ‘Public Domain’ plays a pivotal role as to whether an author can copyright a particular character-type. If the character type is already in the Public Domain (i.e. if it is already an established type or too simple to be copyrighted), then the character type cannot be considered as meeting the threshold burden of original expression.
All of which brings us back to the USA Network’s lineup of detective character-types heavy on unconventional problem-solving. While the slogan for USA, “Characters Welcome,” appeals to the average television viewer’s desire to identify with unique, original character-types, a closer look at Monk, Psych, and House reveals the network’s conservative policy of welcoming the time-tested, non-copyrightable, character-type.
It seems as though the creators of these shows have employed what is known in the industry as an ‘expy’—an exported character that is rather unambiguously and deliberately based (sometimes in homage, sometimes simply recycled for commercial gain) on a character from the past. Here, particularly with Mr. Laurie’s character on House, the creators seem to have framed their lead characters in the same vein as Sir Arthur Conan Doyle’s “Sherlock Holmes” character-type.
As a means of capitalizing on the familiarity of Doyle’s works, USA has effectively grounded its lineup with three shows featuring lead character-types grafted from Holmes, the famous unconventional problem solver. While the “Sherlock Holmes” identity (owned by the Doyle family) will not officially pass into the Public Domain in the United States until 2023, USA’s use of these Holmesian characters is perfectly legal given the flexible copyright loopholes afforded to character-type modification.
So long as television viewers crave the unconventional detective-type, it will surely be available in one modified form or another.