14 Thus, “the familiar figure of the Irish cop is a stock theme of police fiction.” Ibid. at 1259
15 Meaning those elements that are indispensible, or at least standard, in the treatment of a topic: ibid at
1259
16 Y’Barbo supra note 2 at 3356 ff. Beal v. Paramount Pictures supra note 10 at 462 ff .
4
novel and film, for example, can hide a substantial similarity between two works.18 He thus called for a measure of literary analysis as a criterion in determining substantial similarity, and a shift away from an “ordinary observer” approach.19
In a more recent treatment, Douglas Y’Barbo argues that copyright fails to protect those elements of a novel that are most commonly used for a film adaptation, specifically the story line or plot structure of the book.20 Copyright infringement is improbable in other ways as well:
“First, the majority of the elements comprising a work of fiction are not protectable. They are either too general or they are unoriginal to the author...Second, even if a film maker borrows some protectable elements from the novel, those elements may be too trivial, either in quantity or quality, that the film does not resemble the novel. Third, the film maker may take some elements from the novel that comprise its aesthetic appeal—the work’s essence. Here, the film and novel may be very similar, even though what was taken was not quantitatively significant. Fourth, the film maker may take the same elements from the novel, yet, once transplanted into the film, they are no longer recognizable as having originated with the novel.”21
A corollary of his argument is that many literary aspects are inassimilable vis-a-vis film media.22
Y’Barbo demonstrates his thesis by critically examining the criteria used by courts to assess infringement. Thus, the “total concept and feel” of a book may lie in its prose and literary devices such as internal monologue whereas film makers rely on visual stimuli, actors, linear
17 Nimmer at supra note 9 at 1137. Critiques of the ordinary observer test are also offered by Fleming supra note 9 and Robert C. Sorenson & Theodore C. Sorenson, “Re-examining the Traditional Legal Test of Literal Similarity: A Proposal for Content Analysis” (1951-52) 37 Cornell LQ 638. See also Robert H. Roststein “Beyond Metaphor: Copyright Infringement and the Fiction of the Work” (1993) 68 Chicago-Kent Law Review Symposium on Intellectual Property Law Theory 725 at 785 advocating that a better way to judge of infringement would be an ‘audience competent in the particular genre’ test.
18 Nimmer ibid. at 1138. So for example, “a novel will often be composed of largely introspective thoughts and emotions which of necessity will be expressed in quite a different manner when dramatized.”
19 Ibid. at 1140
20 Y’Barbo supra note 2 at 316-7. Moreover, the “overwhelming majority of any novel is unprotectable, because it consists of ideas, scenes a faire, merged expression, historical fact, and other material in the public domain.” At 320, he supports this position by concluding that “every contemporary film-adaptation dispute has been decided on summary judgement for the defendant.”
21 Ibid. at 321. 22 Ibid. at 354
5
juxtaposition of images, and editing to achieve a pleasing effect.23 Moreover, the time constraints (and thus editing) of film means that the “pace” of a movie will usually differ as compared with the literary text.24 While a movie adaptation may follow the story line or “plot” of a book, this is generally not protectable per se; often, as well, a “theme” or meaning will change as the a film maker alters the novel to a happy ending.25 Filmmakers often simplify the story line and present a linear “sequence of events” (and perhaps even present material in a familiar genre quite different from the book) in an effort not to confuse audiences and meet the two hour or less time frame.26 The portrayal and development of “character” is often simplified due to time limits and general inability to rely on devices such as internal monologue, and relies heavily on actor portrayal.27 As we will see shortly, Y’Barbo’s analysis echoes many of the arguments advanced by the adaptation skeptics.
II. Other Disciplinary Perspectives
At the most general level, extra legal disciplinary perspectives on book-to-film adaptation separate into four general streams of theory, which I have termed: (1) constructivism (2) adaptation skepticism (3) structuralism, and (4) cognitive equivalency. Not surprisingly, the first two theories are highly skeptical of the possibility of adapting book to film (but for very different reasons) while structuralists are guardedly optimistic about the ability to adapt certain aspects of narrative structure. The fourth perspective is still too speculative to be of analytical assistance.
The notion that a copyrighted work has protectable elements that may survive transfer into another medium implies that a work possesses certain static and unchanging properties in the first instance. A central question in art philosophy is “what is a work of art?” Are there
23 Ibid. at 356-9. 24 Ibid. at 360. 25 Ibid. at 362. 26 Ibid. at 362-3. 27 Ibid. at 364.
6
properties to a work or art – a static essence in other words -- that can be objectively identified?28 Similarly in copyright law, we might ask “are there identifiable, static properties to a work which are capable of being adapted to another medium?” The answer seems to be “yes” in that copyright treats a work as “an object of fixed characteristics existing independently of context and audience.”29 When we compare two works for infringement analysis, we are distilling two works to their essential properties before comparing them.30
A constructivist perspective seriously challenges copyright’s essentialist thesis. Constructivist maintain that every time we interpret a work of art, “we are imputing properties to something which either alters that very thing or creates something new; (thus these objects) of interpretation have a degree of dependence on the interpretation people give (them),...are identified in terms of the properties they are conceived as having..., (and) lack an essence or fixed nature.”31 From this perspective, Rotstein contends that works are not fixed but have changing identities which depend on audience response to the work in the context in which it appears.32 These changing identities, or interpretations, may apply to even the most foundational doctrines of copyright’s essentialism. For example, the distinction between an idea and its expression is itself an act of interpretation.33 Noting Nimmer’s famous description of a shared 14 point plot line between Romeo and Juliet, on the one hand, and West Side Story on the other, Rotstein provides alternative interpretations of these plots lines which show that, even at this most basic level, there is not similarity but rather substantial divergence.34 For example, the
28 Robert Stecker Aesthetics and the Philosophy of Art: An Introduction (Lanham: Rowman & Littlefield Publishers, 2005) at 9.
29 Rotstein, supra note 17 at 741.
30 In this regard Rotstein quite rightly notes at 70: “Ironically, for copyright the essence of the work lies, not at some deep core, but at the surface of the work, i.e. the words on a page. Abstract characterizations of the work, though some may still qualify for protection as ‘expression,’ move further and further away from the surface.”
31 Stecker supra note 28 at 112
32 Rotstein supra note 17 at 726-7. See also 736-7, “The reader in effect creates the text by virtue of the broader context in which he or she exists. For this reason, the text does not...have a fixed identity...”; and739-40: “The text is a speech event involving interaction among a producer (the ‘author’), a textual artifact (book, movie, song, computer program), and a recipient (reader, viewer, listener). Texts occur only upon the dynamic interaction of all three.”
33 Ibid. at 760.
7
first point: “The boy and girl are members of a hostile group” seems hardly worthy when the alternative interpretation is presented:
“Maria in West Side Story is not a member of a hostile group (the gang) and is indeed unaware of the hostility. The boy in West Side Story has withdrawn from the hostile group (the gang). Romeo and Juliet at first both carry the ancient grudge between their families.”35
Constructivists, therefore, are skeptical of the possibility of adaptation since they believe there is no objective essence of a work which exists independently of interpretation and context.
The adaptation skeptics uphold the unity of form and content believing that the semiotic systems of text and film are incommensurable. A main proponent here would be the founding father of adaptation studies, George Bluestone, who viewed film and literature as radically different primarily due to the fact that one medium is linguistic while the other is visual.36 As Bluestone claimed, “changes are inevitable the moment one abandons the linguistic for the visual medium.”37 For example, the internal content of thought including memory, dreams, imagination– so much a part of literature – cannot adequately be translated into the film form.38 At most, film can infer thoughts but it cannot directly show them to us.39 Moreover, whereas literature focuses on internal thought, character and the psychological, film is about external action, plot and the social.40 Even the transfer of characters from novel to film is lacking since the visual medium is not commensurate with the power of language.41 What is transferable
34 Ibid. at 764: “...even an interpretation that seems straightforward and merely descriptive of a plot line is subject to challenge...”
35 Ibid. at 762
36 George Bluestone,“ Novels into Film” (Berkeley: University of California Press, 1968) at viii. 37 Ibid. at 5.
38 Ibid at viii, 23, 47
39 Ibid at 48
40 Ibid at 48
8
between these two me
14 Thus, “the familiar figure of the Irish cop is a stock theme of police fiction.” Ibid. at 1259
15 Meaning those elements that are indispensible, or at least standard, in the treatment of a topic: ibid at
1259
16 Y’Barbo supra note 2 at 3356 ff. Beal v. Paramount Pictures supra note 10 at 462 ff .
4
novel and film, for example, can hide a substantial similarity between two works.18 He thus called for a measure of literary analysis as a criterion in determining substantial similarity, and a shift away from an “ordinary observer” approach.19
In a more recent treatment, Douglas Y’Barbo argues that copyright fails to protect those elements of a novel that are most commonly used for a film adaptation, specifically the story line or plot structure of the book.20 Copyright infringement is improbable in other ways as well:
“First, the majority of the elements comprising a work of fiction are not protectable. They are either too general or they are unoriginal to the author...Second, even if a film maker borrows some protectable elements from the novel, those elements may be too trivial, either in quantity or quality, that the film does not resemble the novel. Third, the film maker may take some elements from the novel that comprise its aesthetic appeal—the work’s essence. Here, the film and novel may be very similar, even though what was taken was not quantitatively significant. Fourth, the film maker may take the same elements from the novel, yet, once transplanted into the film, they are no longer recognizable as having originated with the novel.”21
A corollary of his argument is that many literary aspects are inassimilable vis-a-vis film media.22
Y’Barbo demonstrates his thesis by critically examining the criteria used by courts to assess infringement. Thus, the “total concept and feel” of a book may lie in its prose and literary devices such as internal monologue whereas film makers rely on visual stimuli, actors, linear
17 Nimmer at supra note 9 at 1137. Critiques of the ordinary observer test are also offered by Fleming supra note 9 and Robert C. Sorenson & Theodore C. Sorenson, “Re-examining the Traditional Legal Test of Literal Similarity: A Proposal for Content Analysis” (1951-52) 37 Cornell LQ 638. See also Robert H. Roststein “Beyond Metaphor: Copyright Infringement and the Fiction of the Work” (1993) 68 Chicago-Kent Law Review Symposium on Intellectual Property Law Theory 725 at 785 advocating that a better way to judge of infringement would be an ‘audience competent in the particular genre’ test.
18 Nimmer ibid. at 1138. So for example, “a novel will often be composed of largely introspective thoughts and emotions which of necessity will be expressed in quite a different manner when dramatized.”
19 Ibid. at 1140
20 Y’Barbo supra note 2 at 316-7. Moreover, the “overwhelming majority of any novel is unprotectable, because it consists of ideas, scenes a faire, merged expression, historical fact, and other material in the public domain.” At 320, he supports this position by concluding that “every contemporary film-adaptation dispute has been decided on summary judgement for the defendant.”
21 Ibid. at 321. 22 Ibid. at 354
5
juxtaposition of images, and editing to achieve a pleasing effect.23 Moreover, the time constraints (and thus editing) of film means that the “pace” of a movie will usually differ as compared with the literary text.24 While a movie adaptation may follow the story line or “plot” of a book, this is generally not protectable per se; often, as well, a “theme” or meaning will change as the a film maker alters the novel to a happy ending.25 Filmmakers often simplify the story line and present a linear “sequence of events” (and perhaps even present material in a familiar genre quite different from the book) in an effort not to confuse audiences and meet the two hour or less time frame.26 The portrayal and development of “character” is often simplified due to time limits and general inability to rely on devices such as internal monologue, and relies heavily on actor portrayal.27 As we will see shortly, Y’Barbo’s analysis echoes many of the arguments advanced by the adaptation skeptics.
II. Other Disciplinary Perspectives
At the most general level, extra legal disciplinary perspectives on book-to-film adaptation separate into four general streams of theory, which I have termed: (1) constructivism (2) adaptation skepticism (3) structuralism, and (4) cognitive equivalency. Not surprisingly, the first two theories are highly skeptical of the possibility of adapting book to film (but for very different reasons) while structuralists are guardedly optimistic about the ability to adapt certain aspects of narrative structure. The fourth perspective is still too speculative to be of analytical assistance.
The notion that a copyrighted work has protectable elements that may survive transfer into another medium implies that a work possesses certain static and unchanging properties in the first instance. A central question in art philosophy is “what is a work of art?” Are there
23 Ibid. at 356-9. 24 Ibid. at 360. 25 Ibid. at 362. 26 Ibid. at 362-3. 27 Ibid. at 364.
6
properties to a work or art – a static essence in other words -- that can be objectively identified?28 Similarly in copyright law, we might ask “are there identifiable, static properties to a work which are capable of being adapted to another medium?” The answer seems to be “yes” in that copyright treats a work as “an object of fixed characteristics existing independently of context and audience.”29 When we compare two works for infringement analysis, we are distilling two works to their essential properties before comparing them.30
A constructivist perspective seriously challenges copyright’s essentialist thesis. Constructivist maintain that every time we interpret a work of art, “we are imputing properties to something which either alters that very thing or creates something new; (thus these objects) of interpretation have a degree of dependence on the interpretation people give (them),...are identified in terms of the properties they are conceived as having..., (and) lack an essence or fixed nature.”31 From this perspective, Rotstein contends that works are not fixed but have changing identities which depend on audience response to the work in the context in which it appears.32 These changing identities, or interpretations, may apply to even the most foundational doctrines of copyright’s essentialism. For example, the distinction between an idea and its expression is itself an act of interpretation.33 Noting Nimmer’s famous description of a shared 14 point plot line between Romeo and Juliet, on the one hand, and West Side Story on the other, Rotstein provides alternative interpretations of these plots lines which show that, even at this most basic level, there is not similarity but rather substantial divergence.34 For example, the
28 Robert Stecker Aesthetics and the Philosophy of Art: An Introduction (Lanham: Rowman & Littlefield Publishers, 2005) at 9.
29 Rotstein, supra note 17 at 741.
30 In this regard Rotstein quite rightly notes at 70: “Ironically, for copyright the essence of the work lies, not at some deep core, but at the surface of the work, i.e. the words on a page. Abstract characterizations of the work, though some may still qualify for protection as ‘expression,’ move further and further away from the surface.”
31 Stecker supra note 28 at 112
32 Rotstein supra note 17 at 726-7. See also 736-7, “The reader in effect creates the text by virtue of the broader context in which he or she exists. For this reason, the text does not...have a fixed identity...”; and739-40: “The text is a speech event involving interaction among a producer (the ‘author’), a textual artifact (book, movie, song, computer program), and a recipient (reader, viewer, listener). Texts occur only upon the dynamic interaction of all three.”
33 Ibid. at 760.
7
first point: “The boy and girl are members of a hostile group” seems hardly worthy when the alternative interpretation is presented:
“Maria in West Side Story is not a member of a hostile group (the gang) and is indeed unaware of the hostility. The boy in West Side Story has withdrawn from the hostile group (the gang). Romeo and Juliet at first both carry the ancient grudge between their families.”35
Constructivists, therefore, are skeptical of the possibility of adaptation since they believe there is no objective essence of a work which exists independently of interpretation and context.
The adaptation skeptics uphold the unity of form and content believing that the semiotic systems of text and film are incommensurable. A main proponent here would be the founding father of adaptation studies, George Bluestone, who viewed film and literature as radically different primarily due to the fact that one medium is linguistic while the other is visual.36 As Bluestone claimed, “changes are inevitable the moment one abandons the linguistic for the visual medium.”37 For example, the internal content of thought including memory, dreams, imagination– so much a part of literature – cannot adequately be translated into the film form.38 At most, film can infer thoughts but it cannot directly show them to us.39 Moreover, whereas literature focuses on internal thought, character and the psychological, film is about external action, plot and the social.40 Even the transfer of characters from novel to film is lacking since the visual medium is not commensurate with the power of language.41 What is transferable
34 Ibid. at 764: “...even an interpretation that seems straightforward and merely descriptive of a plot line is subject to challenge...”
35 Ibid. at 762
36 George Bluestone,“ Novels into Film” (Berkeley: University of California Press, 1968) at viii. 37 Ibid. at 5.
38 Ibid at viii, 23, 47
39 Ibid at 48
40 Ibid at 48
8
between these two me
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