A Santa Fe question: Who owns Sherlock Holmes?

Santa Fe-born author Mitch Cullin faced a copyright and trademark infringement complaint shortly before Mr. Holmes, a film based on his novel, A Slight Trick of the Mind, was released.

When Santa Fe-born writer Mitch Cullin began working on a novel about an elderly Sherlock Holmes dealing with fading memories and looking back on his life, Cullin had no idea of how far he would be pulled into the fierce battles waged over the legacy of British author Sir Arthur Conan Doyle.

But 15 years later, after Cullin’s A Slight Trick of the Mind had been published and turned into a Hollywood movie titled Mr. Holmes, he found himself in the sights of Jon Lellenberg. Lellenberg is a former Department of Defense strategist who retired to Santa Fe in 2013 but continues his long-held role of legal representative for Conan Doyle’s estate.

Conan Doyle, a physician as well as a writer, is often credited with contributions to modern forensics. But he is most famous for creating the durable character of Holmes, the brilliant sleuth of Baker Street in late-Victorian London. Although Conan Doyle’s last story on Holmes was published in 1927, waves of films, television series and other works continue to make Sherlock Holmes a bankable figure.

Lellenberg is a key player in the Sherlockian world. He has written or edited books that flow from the ongoing fascination with Conan Doyle’s detective stories. Lellenberg is still at work on a multi-volume history of the tradition-rich literary group known as the Baker Street Irregulars. But perhaps most important, in his capacity as the exclusive U.S. agent for Conan Doyle’s estate, he wields legal power over how the Holmes character is used in writings, films, exhibits and a surprising array of merchandise, from games to mugs, teapots and even puppets bearing the visage of the hawk-nosed detective in a deerstalker cap.

While some parties cooperate willingly, others have challenged the extent to which Sherlock Holmes still belongs to the estate, which Lellenberg helped incorporate after the death in 1997 of the author’s last surviving child, Dame Jean Conan Doyle. Some complain of what they consider bullying tactics in the form of threatening letters and legal actions that can be cheaper and simpler to settle than to litigate.

Lellenberg dismisses the bullying idea. “Never have,” he said in a phone interview. “These are usually people who have never had any contact with me.”

No one is saying exactly what the estate received in settlements of a lawsuit filed in U.S. District Court in Albuquerque against Cullin, his publisher, and the makers and distributors of Mr. Holmes. The copyright and trademark infringement complaint, filed shortly before the film’s scheduled release, requested an injunction to prevent its July opening in the United States.

That proved unnecessary. Oscar-winning screenwriter Bill Condon, Miramax LLC and Roadside Attractions eventually announced that negotiations had led to an agreement with Conan Doyle Estate Ltd. In a joint statement, those involved with the film thanked the estate “for the use of certain material authored by Sir Arthur Conan Doyle.”

A federal magistrate formally dismissed the case early this month, about the time the film was ending a 16-week run in U.S. theaters that grossed a reported $17.7 million — not bad for a movie that catered to an older audience, or at least one interested in deeper themes than the summer blockbusters offered. International box office totals added another $8.4 million, mostly from the United Kingdom. Mr. Holmes is now available on DVD, Blu-ray Disc and online.

Cullin, 47, and his publisher, Penguin Random House, reached a separate settlement. The one detail of their agreement that has become public is that e-book versions of the novel, which had been on shelves for a decade before the high-profile film starring Ian McKellen was announced, now include an acknowledgement that says: “Material from copyrighted Sherlock Holmes stories used by kind permission of the Conan Doyle Estate Ltd.”

“Believe me,” Cullin said in an emailed statement to The New Mexican, “if I had known there was the possibility that I was going to be sued, I’d have likely reconsidered writing A Slight Trick of the Mind in the first place.”

When asked to respond to allegations by Cullin and others that the estate essentially extorts licensing fees from users of a Holmes character who these critics contend has mostly passed into the public domain, Lellenberg referred the question to the estate’s lawyer, Ben Allison of Santa Fe.

“It’s easy to use the labels shakedown or extortion,” Allison said. “But the fact is neither Cullin nor anyone else put up any fight. Almost every lawsuit is fought for some time — often a long time — because usually people are convinced enough of their position that they defend it. Random House certainly has the money to defend itself; Miramax has the money to defend itself. They don’t want reputations as easy pushovers. Why would no one defend this?”

Despite the settlement, Cullin, who divides his time between Los Angeles and Tokyo, has repeatedly insisted that he did not illegally borrow copyrighted material when crafting his story. He was familiar with Conan Doyle’s books, having spent part of his youth in the Santa Fe library of neighbor and famed Sherlockian collector John Bennett Shaw, whom he has credited as a mentor. But during the years when he was writing his book, Cullin said, he was drawing on late-life issues confronted by his own father, Charles Cullin, a one-time reporter for The New Mexican who became press secretary for Gov. David Cargo, headed the state film commission, and did public relations for St. Vincent Hospital and others before turning to documentary filmmaking.

“The blunt reality is that it is cheaper for corporations to settle than go to court, and I believe the Estate is not only keenly aware of that reality, but that they bank on it as an outcome,” the writer said. “The lawsuit was never intended or designed by the estate to be litigated; it was about seizing the opportunity to get money, and it had little to do with protecting violated copyrights.”

Although most of the 56 Sherlock Holmes stories published between 1887 and 1927 are now in the public domain and fair game under U.S. copyright law, the estate claimed in its lawsuit that Cullin’s book illegally borrows from Conan Doyle’s final 10 works, for which the U.S. copyright has not expired.

Cullin insists that “99.9 percent of the book had nothing to do with the specifics of the Conan Doyle canon, and those moments that did pertain to the stories were minor.” In a Facebook posting, he told followers, “My father’s sharp intelligence and struggle with increasing memory problems formed the basis of my novel.”

McKellen, who is the subject of Oscar buzz for his performance, told an interviewer with The Guardian that he enjoyed playing Holmes, then added, “Actually the film turns out to be about old age, about the possibility of it never being too late to find out about yourself. That has nothing to do with Sherlock Holmes, really — that’s to do with life.”

But the estate’s representatives found too many parallels between Cullin’s treatment of Holmes and legally protected works by the character’s creator. The lawsuit said Conan Doyle in those stories had developed some identifiable traits for the once purely rational Holmes, making him a figure who in his later years “warms emotionally and develops the ability to express love,” as well as a love of nature.

To support his allegation of plagiarism, Allison listed excerpts from Cullin’s book side-by-side with a series of plot elements and details from the final 10 works by Conan Doyle. One example of copying asserted in the lawsuit is that the setting for Cullin’s novel — lushly filmed for Mr. Holmes — was taken from Conan Doyle’s The Adventure of the Lion’s Mane: a country house where the retired detective lives overlooking the English Channel, with chalk cliffs in the distance and a path leading down to the sea. As in Conan Doyle’s short story, the Holmes character in Cullin’s book and in the film lives with a housekeeper and keeps bees.

While the estate saw these and other similarities as legal infringements, Cullin claimed any similarities amounted to “fair use.”

References to details in Conan Doyle’s works might go unnoticed by the average moviegoer. But it is unlikely they would slip by the notoriously obsessive members of groups such as the Baker Street Irregulars. Curators of an international touring exhibit on Sherlock Holmes now at the Denver Museum of Nature and Science give this description of the worldwide network of Sherlockian societies: “Somewhere at this very moment, a group of Sherlock Holmes fans are gathering to discuss such matters as the true location of Dr. Watson’s war wound or the depth to which a sprig of parsley might sink in butter on a hot day.”

Cullin said he finds it significant that Lellenberg not only is the agent for Conan Doyle Estate Ltd. but owns a share of it, along with the writer’s familial heirs. Referring to new novels, films and other works about Holmes, Cullin said, “I would argue that it’s because of these outside works that Holmes has remained such a vibrant, modern character. The Estate should be grateful for that, and they should honor those who aid Conan Doyle’s legacy and do so without seeking unwarranted monetary reward.”

Lellenberg, who had been Dame Jean Conan Doyle’s U.S. representative for years before she died, acknowledged that he did obtain a financial interest after Conan Doyle Estate Ltd. was formed to hold and manage the rights she had acquired to her father’s work.

However, Allison said the estate does work with creators of new works about Holmes “to bring great stories to the world.” The lawyer also cited the museum exhibit now in Denver. “John Lellenberg and the estate put years of work into that exhibition,” he said. “The notion that the estate sits back and collects ‘licensing fees’ is not the way things actually work!”

But the attorney stands his ground in asserting legal rights on behalf of the estate.

“Copyright is an inherently level playing field; it protects Cullin’s original work as much as Conan Doyle’s,” Allison said. “It’s no fun to be caught plagiarizing. But as a writer I would think Cullin would think a little farther ahead before criticizing copyright protection. It is one of the reasons we have the creative culture we do, and if society does nothing when people plagiarize we risk killing the goose that lays the golden egg.”

Another issue raised in the lawsuit could have even more importance than copyright law for those involved in continuing revivals of the 128-year-old Holmes character. The estate claimed trademark rights to Sherlock Holmes. And while the copyright protection afforded under U.S. law has time limits, trademark rights never expire.

The estate asserts that it has common law trademark rights to the Sherlock Holmes brand in connection with motion pictures, television series, games and publications. And while the estate holds registered federal trademark rights to Sherlock Holmes for “organization of exhibitions for cultural, educational and entertainment purposes,” it has a series of applications pending with the U.S. Patent and Trademark Office that, if granted, would expand its registered trademark rights. The applications remain pending because a British company that primarily sells tourist merchandise also claims trademark rights to the name and image of Sherlock Holmes.

Contact Howard Houghton at 986-3015 or hhoughton@sfnewmexican.com.

(3) comments

Anna Sanchez


Anna Sanchez

The Conan Doyle Estate in its current form is awful, and pretty much all Sherlockians agree on that fact. The Lion's Mane references they mention are silly & a ruse to justify their ugly actions, because anything that is claimed Cullin took from that copyrighted story can also be found in uncopyrighted stories, i.e. The Creeping Man, His Last Bow, The Blanched Soldier, A Study in Scarlet, A Scandal in Bohemia.

Ben Allison is verging on flat-out lying in this article, but then again he's a lawyer (there is no mention in the copyrighted Conan Doyle's stories of Holmes living with a housekeeper and her son). I think the journalist should have asked Jon Lellenberg about why he was kicked out of the Baker Street Irregulars last year, and why was it that he lost the lawsuit against the Estate by Leslie Klinger. The same argument used against Cullin were also used to claim Holmes wasn't in public domain: the Estate lost that case when it was challenged, big time, and lawyer Allison basically echoed the same tired "copyright" arguments that had failed against Klinger.

Karma will eventually catch up with the nasty circle the holds Jon Lellenberg, his lawyer Ben Allison, and The Conan Doyle Estate, and I, for one, look forward to that day, as do many others.

Jimmy Green

I'm starting a band called "the Beatles". Thanks for the inspiration.

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