Adapting Novel into Film © Cameron Hutchison1
The history of cinema is replete with adaptations of novels into film. Indeed, it seems that almost every movie made these days is based on a book. Beyond mere commercial opportunism, 2 there is at least something about the film medium that lends itself to borrowing from literary sources. The significance of this topic for copyright scholars is that the cinematographic or “movie” right vests with the author of a book (what I will call the “adaptation right”). Where that right has been at issue, courts have struggled with developing a methodology for determining infringement. The enormously complex topic of assessing whether there has been a substantial taking from a textual medium for adaptation into a visual medium has been oversimplified both by legal “tests” for infringement and the manner which they are applied.
The purpose of this short paper is to explore the topic from extra-legal disciplinary perspectives in an effort to highlight some of the shortcomings of the law in this area but also to embark on new ways of thinking about the adaptation right. This paper draws on a field known as “adaptation studies” which itself borrows liberally from literary criticism, film studies, art philosophy, and media studies. From debates within and across these fields, certain theories emerge which help to better understand the possibility of cinematic adaptation from literary sources (if indeed it is possible at all).3 We will begin with the counter intuitive idea that there is
1Associate Professor, Faculty of Law, University of Alberta: email chutchison@law.ualberta.ca
2 Douglas Y’Barbo “Aesthetic Ambition Versus Commercial Appeal: Adapting Novels to Film and the Copyright Law” (1998) 10 St. Thomas Rev 299 at 310: bestselling or even popular novels can have a trade-mark value that can easily translate into commercial success for a movie version; Hollywood underwriters of big budget movies can be assured of certain amount of commercial success for the movie version of the latest novel from John Grisham or Tom Clancy.
3 Constructivism and structuralism are well known schools of thought, whereas adaptation skepticism and cognitive equivalency are names I have created. Moreover, these theories are presented in stark terms and do not reflect the many variants thereof. Finally the authors I cite in this paper sometimes belong to more than one school of thought. Bluestone and McFarlane, for example, are both adaptation skeptics and structuralists; however, because the latter elaborated a
1
Electronic copy available at: http://ssrn.com/abstract=2117556
no essence to any given work that is available to be adapted to another medium (constructivism). A second school of thought argues that the differences between literature and cinema – the written word and the visual image – are too great for there to be anything approaching equivalency between the two media (adaptation skepticism). Next we consider the argument that what is adapted from book into film is a narrative structure that, in some respects but not others, is amenable to transfer to the film medium (structuralism). We will conclude with a brief look at the argument that reading and visualizing are inverse cognitive processes that might suggest the differences between the two media are overstated (cognitive equivalency). After a brief exploration of the law of the adaptation right, each of these four perspectives will be addressed. I ultimately side with the structuralist position and conclude that the legal test for infringement has much to gain from this analytical framework.
I. Legal Perspectives
Copyright offers exclusive rights to an author who creates an original artistic, literary, musical or dramatic work.4 The term “original” has been interpreted by our Supreme Court to mean that the work demonstrates the author’s “skill and judgement.”5 A work created in one medium is afforded copyright protection in another medium. Thus, section 3 of the Copyright Act gives the owner of a copyright “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever...” For our purposes this includes s. 3(1)(d) the sole right “in the case of a literary, dramatic or musical work, to make any...cinematograph film...”6 Thus, the author of a novel has the exclusive right to “make” the book, or a substantial part thereof, into a film.
structuralist methodology while the former emphasized the problems of adaptation, they were categorized accordingly.
4 The scope of covered works is broad under Copyright Act RSC, 1985 c-42: see s. 2 definitions. Furthermore, for copyright to subsist, the work must be fixated in a tangible form: see CCH v. Law Society of Upper Canada 2004 SCC 13 at para. 8.
5 CCH ibid. at para. 16 . For a discussion of the skill and judgement standard from a psychological perspective see Cameron Hutchison “Insights from Psychology for Copyright’s Originality Doctrine” (2012) 52 IDEA: The Intellectual Property Law Review 101.
2
Electronic copy available at: http://ssrn.com/abstract=2117556
Copyright does not subsist in respect of the ideas or facts which underlie a work, as opposed to its expression. US courts have struggled with whether the borrowed parts of a work at issue are mere ideas (as opposed their expression) and thus not copyrightable. In this regard, courts often reference Nichols v. Universal Studios in which the copyright holder of one play sued the producers of a second play for infringement. In that case, Judge Hand determined on the facts that the “only matter in common to the two (works) is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.”7 As such, the borrowing here was in the realm of idea and not expression. The case is famous for the pronouncement of an abstraction test:
“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions when they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended.”8
Separating the idea from the expression is a notoriously difficult exercise. For example, how much more borrowed incident was needed in Nichols for the defendant to have been found to have copied expression? As well, courts have historically wrestled with the distinctions, if any between, an “idea”, a “plot,” and a “theme.”9
Once into the realm of expression, copyright infringement is found where a defendant appropriates a qualitatively substantial portion of a work without permission of the copyright owner. Copyright infringement analysis compares the two works in question, i.e. in our
6 The film adaptation right has not been judicially considered in Canada, which stands in contrast to a robust U.S. case law on the subject.
7 Nichols v. Universal Pictures Corp 45 F.2d 119 (2d Cir. 1930) at 122.
8 Ibid. at 121.
9 Melville B. Nimmer “Inroads on Copyright Protection” (1950-1951) 64 Harv. L. Rev. 1125 at 1130-1: “At least one court has said that all these terms are synonymous, and another court has maintained that ‘plot’ and ‘theme’ are identical...some courts have indicated that a theme may be protected, and others have held that a plot may be protected.” Moreover, some courts have defined plot as “bare plot” while others refer to it as “the entire sequence of events which lead the story situation from cause and effect”: Robert Fuller Fleming “Substantial Similarity: Where Plots Really Thicken” (1971) 19 Copyright L. Symp. 225 at 261.
3
scenario, a movie (and not the script) will be reviewed and compared with the book.10 Infringement analysis has two prongs. The first inquiry is whether there was access to the work, i.e. the second work derived from the first and was not the result of independent creation, and may be aided by expert evidence. 11 If access is proven, the question becomes whether the second work infringed the first as viewed by an “ordinary observer” (and notably without the assistance of expert evidence).12 On this second prong, courts considering the adaptation right generally begin their analysis by discounting that which is not protected by copyright such as ideas,13 stock themes14 and scenes a faire. 15 Then, distilling the two works to their essential elements, a comparative analysis is considered through the following prisms: total concept and feel, theme and plot, mood, characters, pace, setting, sequence of events, and structure.16 Surprisingly, these terms are not defined in the case law.
There is a long legal history, both in case law and legal commentary, on the subject of adaptation. Much of the early commentary on the subject takes issue with the “ordinary observer” test or “audience test” for determining substantial appropriation. Nimmer, for example, argued that “there are numerous instances when the ordinary observer is simply not capable of detecting substantial appropriation.”17 He advocated that the differences between
10 Beal v. Paramount Pictures (1994) 20 F.3d 454 at 56 (US Court of Appeals, 11th Cir.)
11 Y’Barbo supra note 2 at 307.
12 Ibid. See also e.g. Arden v. Columbia Pictures (1995) 908 F.Supp. 1248 (US District Ct, SD New York) at para. 4: “Courts are asked ‘whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.’”
13 Thus in Arden, the idea found in the novel One Fine Day of a man who is “trapped in a day that repeats itself over and over again” was a permissible taking for the producers of the film Groundhog
Adapting Novel into Film © Cameron Hutchison1
The history of cinema is replete with adaptations of novels into film. Indeed, it seems that almost every movie made these days is based on a book. Beyond mere commercial opportunism, 2 there is at least something about the film medium that lends itself to borrowing from literary sources. The significance of this topic for copyright scholars is that the cinematographic or “movie” right vests with the author of a book (what I will call the “adaptation right”). Where that right has been at issue, courts have struggled with developing a methodology for determining infringement. The enormously complex topic of assessing whether there has been a substantial taking from a textual medium for adaptation into a visual medium has been oversimplified both by legal “tests” for infringement and the manner which they are applied.
The purpose of this short paper is to explore the topic from extra-legal disciplinary perspectives in an effort to highlight some of the shortcomings of the law in this area but also to embark on new ways of thinking about the adaptation right. This paper draws on a field known as “adaptation studies” which itself borrows liberally from literary criticism, film studies, art philosophy, and media studies. From debates within and across these fields, certain theories emerge which help to better understand the possibility of cinematic adaptation from literary sources (if indeed it is possible at all).3 We will begin with the counter intuitive idea that there is
1Associate Professor, Faculty of Law, University of Alberta: email chutchison@law.ualberta.ca
2 Douglas Y’Barbo “Aesthetic Ambition Versus Commercial Appeal: Adapting Novels to Film and the Copyright Law” (1998) 10 St. Thomas Rev 299 at 310: bestselling or even popular novels can have a trade-mark value that can easily translate into commercial success for a movie version; Hollywood underwriters of big budget movies can be assured of certain amount of commercial success for the movie version of the latest novel from John Grisham or Tom Clancy.
3 Constructivism and structuralism are well known schools of thought, whereas adaptation skepticism and cognitive equivalency are names I have created. Moreover, these theories are presented in stark terms and do not reflect the many variants thereof. Finally the authors I cite in this paper sometimes belong to more than one school of thought. Bluestone and McFarlane, for example, are both adaptation skeptics and structuralists; however, because the latter elaborated a
1
Electronic copy available at: http://ssrn.com/abstract=2117556
no essence to any given work that is available to be adapted to another medium (constructivism). A second school of thought argues that the differences between literature and cinema – the written word and the visual image – are too great for there to be anything approaching equivalency between the two media (adaptation skepticism). Next we consider the argument that what is adapted from book into film is a narrative structure that, in some respects but not others, is amenable to transfer to the film medium (structuralism). We will conclude with a brief look at the argument that reading and visualizing are inverse cognitive processes that might suggest the differences between the two media are overstated (cognitive equivalency). After a brief exploration of the law of the adaptation right, each of these four perspectives will be addressed. I ultimately side with the structuralist position and conclude that the legal test for infringement has much to gain from this analytical framework.
I. Legal Perspectives
Copyright offers exclusive rights to an author who creates an original artistic, literary, musical or dramatic work.4 The term “original” has been interpreted by our Supreme Court to mean that the work demonstrates the author’s “skill and judgement.”5 A work created in one medium is afforded copyright protection in another medium. Thus, section 3 of the Copyright Act gives the owner of a copyright “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever...” For our purposes this includes s. 3(1)(d) the sole right “in the case of a literary, dramatic or musical work, to make any...cinematograph film...”6 Thus, the author of a novel has the exclusive right to “make” the book, or a substantial part thereof, into a film.
structuralist methodology while the former emphasized the problems of adaptation, they were categorized accordingly.
4 The scope of covered works is broad under Copyright Act RSC, 1985 c-42: see s. 2 definitions. Furthermore, for copyright to subsist, the work must be fixated in a tangible form: see CCH v. Law Society of Upper Canada 2004 SCC 13 at para. 8.
5 CCH ibid. at para. 16 . For a discussion of the skill and judgement standard from a psychological perspective see Cameron Hutchison “Insights from Psychology for Copyright’s Originality Doctrine” (2012) 52 IDEA: The Intellectual Property Law Review 101.
2
Electronic copy available at: http://ssrn.com/abstract=2117556
Copyright does not subsist in respect of the ideas or facts which underlie a work, as opposed to its expression. US courts have struggled with whether the borrowed parts of a work at issue are mere ideas (as opposed their expression) and thus not copyrightable. In this regard, courts often reference Nichols v. Universal Studios in which the copyright holder of one play sued the producers of a second play for infringement. In that case, Judge Hand determined on the facts that the “only matter in common to the two (works) is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.”7 As such, the borrowing here was in the realm of idea and not expression. The case is famous for the pronouncement of an abstraction test:
“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions when they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended.”8
Separating the idea from the expression is a notoriously difficult exercise. For example, how much more borrowed incident was needed in Nichols for the defendant to have been found to have copied expression? As well, courts have historically wrestled with the distinctions, if any between, an “idea”, a “plot,” and a “theme.”9
Once into the realm of expression, copyright infringement is found where a defendant appropriates a qualitatively substantial portion of a work without permission of the copyright owner. Copyright infringement analysis compares the two works in question, i.e. in our
6 The film adaptation right has not been judicially considered in Canada, which stands in contrast to a robust U.S. case law on the subject.
7 Nichols v. Universal Pictures Corp 45 F.2d 119 (2d Cir. 1930) at 122.
8 Ibid. at 121.
9 Melville B. Nimmer “Inroads on Copyright Protection” (1950-1951) 64 Harv. L. Rev. 1125 at 1130-1: “At least one court has said that all these terms are synonymous, and another court has maintained that ‘plot’ and ‘theme’ are identical...some courts have indicated that a theme may be protected, and others have held that a plot may be protected.” Moreover, some courts have defined plot as “bare plot” while others refer to it as “the entire sequence of events which lead the story situation from cause and effect”: Robert Fuller Fleming “Substantial Similarity: Where Plots Really Thicken” (1971) 19 Copyright L. Symp. 225 at 261.
3
scenario, a movie (and not the script) will be reviewed and compared with the book.10 Infringement analysis has two prongs. The first inquiry is whether there was access to the work, i.e. the second work derived from the first and was not the result of independent creation, and may be aided by expert evidence. 11 If access is proven, the question becomes whether the second work infringed the first as viewed by an “ordinary observer” (and notably without the assistance of expert evidence).12 On this second prong, courts considering the adaptation right generally begin their analysis by discounting that which is not protected by copyright such as ideas,13 stock themes14 and scenes a faire. 15 Then, distilling the two works to their essential elements, a comparative analysis is considered through the following prisms: total concept and feel, theme and plot, mood, characters, pace, setting, sequence of events, and structure.16 Surprisingly, these terms are not defined in the case law.
There is a long legal history, both in case law and legal commentary, on the subject of adaptation. Much of the early commentary on the subject takes issue with the “ordinary observer” test or “audience test” for determining substantial appropriation. Nimmer, for example, argued that “there are numerous instances when the ordinary observer is simply not capable of detecting substantial appropriation.”17 He advocated that the differences between
10 Beal v. Paramount Pictures (1994) 20 F.3d 454 at 56 (US Court of Appeals, 11th Cir.)
11 Y’Barbo supra note 2 at 307.
12 Ibid. See also e.g. Arden v. Columbia Pictures (1995) 908 F.Supp. 1248 (US District Ct, SD New York) at para. 4: “Courts are asked ‘whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.’”
13 Thus in Arden, the idea found in the novel One Fine Day of a man who is “trapped in a day that repeats itself over and over again” was a permissible taking for the producers of the film Groundhog
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