Legal Implications of the Great Adoption- Copyright Issues emanating from adoption of Hercule Poirot and Sherlock Holmes

poirot

Recently there were news reports that ‘Hercule Poirot’ will be featuring in a novel titled ‘Monogram Murders’ by Sophie Hannah. For the convenience of our readers, ‘Hercule Poirot’ is a fictional character created by the great novelist Agatha Christie (like Sherlock Holmes by Sir Arthur Conan Doyle). Her demise in 1976 also silenced Mr.  Poirot as no one continued or probably was allowed to continue her crime novel series. The Post attempts at exploring the various intriguing copyright aspects surrounding it also taking note of the Indian law wherever relevant.

‘Hercule Poirot’ is no less than Sherlock Holmes or James Bond for those who have read Agatha Chrisitie’s perennial works. The name will immediately strike an emotional chord with the readers addicted to crime thrillers and may also lead them to nostalgia fuelled by the ever pinching literary void created by her death in 1976.

The good news is that Mr. Poirot is back! He features in a novel Monogram Murders’ written by Sophie Hannah. Yes, the copyrights and all the legal worries, have already been addressed as Sophie Hannah has written the novel after taking due consent from the Estate of Agatha Christie. [The author is not aware of any royalty arrangements in the specific case but as per S. 18 of Indian Copyright Act, it is a statutory entitlement.]

But still the copyright permissions part was not that easy to digest for me. And resultantly, a lot of question cropped up in my mind regarding the complications that may arise while negotiating such arrangements. Also after a bit of digging up, I found that the copyright in the fictional character Hercule Poirot has already expired in US (as demonstrated in the last section of the post) but not in UK (the home country for publication purpose).

The questions are as follows;

  • What happens to Agatha’s moral rights?

The moral rights of Agatha Christie over Hercule Poirot have to be preserved in UK as per S. 77(3) of the Copyright, Designs and Patents Act, 1988, and that the same has been done can be observed by looking at the top of the front cover of Hannah’s book (look at the image below):

  • Assuming that Sophie Hannah continues her ‘The Monogram Murders’ series even after expiration of copyright protection for Hercule Poirot, or after Hercule Poirot falls in public domain; would she still be required to acknowledge the moral rights of Agatha Christie?

The answer to this question would be fairly simple. It is yes because, moral rights in most of the jurisdictions, including UK are independent of copyright. [You may refer S. 57 of the Indian Copyright Act.]

  • Whom does ‘Poirot’ actually belong to?

Since Mr. Poirot is back now, does the copyright protection [which in case of literary works extends to 60 years in India and 70 years in UK, beginning from the year next after the year in which author dies] re-starts from 2014 (the year of publication of Sophie Hannah’s Book), or Hercule Poirot still falls in public domain in 2036, i.e, 60 years after the author’s death in 1976?

The problem is significant because if Hercule Poirot falls in public domain in 2036 (as Agatha Chrisitie passed away in 1976), can anyone adopt the character of Hercule Poirot in and after 2036, or is he or she required to seek permission from Sophie Hannah prior to doing that?

Probably, one answer to this could be devising of ‘character originality test’. The objective of this test should be that whether Hercule Poirot has gained any significant attributes which were not there in the fictional character as created by Agatha Chrisite. The test may be applied to Hercule Poirot as portrayed by Sophie Hannah. If the answer to this is in affirmative, then anyone would be able to adopt Hercule Poirot, but of the pre-Sophie Hannah era only. And if the answer is in negative the question itself becomes redundant as then Sophie’s Hercule Poirot would not be ‘original’ in the sense of the copyright law and thus would not be entitled to any copyright protection (a note of caution: the copyright protection shall not be available merely for the character but it shall obviously be available for her story.)

  • Calculating term of Copyright Protection for fictional Characters

It is an issue non-est in UK and India as we determine the term of copyright protection from the year in which the author dies and not from the year of publication of the particular literary work in question. To illustrate- If an author publishes one book in 1950 and another in 2010 and he passes away in 2015, the copyright protection in all his books will stay till 2075.

But what if the term of copyright protection is to be calculated from the date of publication and not from the date of death of the author?

Under the US Copyright Act, 1909, the term of copyright protection used to begin from the date of the publication and was not concerned with the date of death of the author. Initially, the term of protection was 28 years from the date of the publication and a renewal of 28 years was allowed, thus making it 56 years. As a result of subsequent amendments and by advent of Copyright Act, 1976 the Copyright protection in relation to works published between 1923 and 1977 (both years inclusive) was increased to 95 years, and the works prior to 1923 were deemed to be part of public domain.

Now, with this background we move towards an interesting problem created by US law.

Agatha Christies’s first Poirot novel ‘The Mysterious Affair at Styles’ was published in 1920 and the last ‘Curtain’ in 1975 (Her last novel was ‘Sleeping Murder’ but it was not a Poirot novel). In this scenario, whether the copyright in Poirot is to be calculated from 1920 or 1975.

The question has been answered by US Court of Appeal for Seventh Circuit in Leslie S. Klinger v. Conan Doyle Estate Ltd. as recently as in June 2014. In this matter, the plaintiff argued that the legendary characters of Sherlock Holmes and Dr. Watson created by Sir Arthur Connan Doyle had fallen into public domain because the first Holmes novel was published in 1887. But the defendant argued that since the character of Sherlock Holmes continued to appear even in the last ten stories of the author which were published between 1923 and 1927, the copyright in the character would expire during 2018-2022. The defendant advanced the argument of round and flat character. It was argued that round characters were those who kept on evolving and Holmes and Watson were round characters as they were not fully rounded off till the time author wrote his last story. Thus, the defendant argued that the term of copyright protection should be from 1887 to 2022 (as the characters kept on evolving between 1887-1927). The Court rejected the argument and held that the though the copyright in stories written between 1927 and 1923 would expire in 2018 and 2022, the character of Sherlock Holmes and Watson created, way back in 1887, had fallen into public domain. At the same time, the court also said that the characteristics of Holmes and Watson which had been brought out in those last 10 stories were protected by copyright. The following observation of the Court summarizes its stance on the issue;

From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887 Holmes and Watson were distinctive characters and therefore copyrightable. They were “incomplete” only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters.   

 

So, the answer to this complex question relevant only for the US is that copyright in fictional characters is to be computed from the year of publication of the first work in which the fictional characters appear.

However, this position of US law is applicable only with respect to the works published between 1923 and 1977 as S. 302 of US Copyright Act, 1976 provides that works created on or after 1st January, 1978 will have copyright protection for the life of author plus 70 years, which is more or less in line with the extant position of law in UK and India.

 – Shashank Mangal,
V BSL LLB,
ILS Law College, Pune

 

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