From Novel to Screen: Navigating Legal Complexities, Derivative Rights, and Copyright Challenges in Cinematic Adaptations

Introduction

The aim of adapting novels into films is to infuse visual allure and vitality into the otherwise monochromatic realm of written text. The practice of adapting literary works for the cinema has a historical foundation, originating in an era with limited recreational options. Throughout history, novels have frequently been translated into cinematic experiences, and this trend persists in contemporary filmmaking, where a substantial portion of movies draws inspiration from novels. Nevertheless, the relationship between novel authors and film directors is often marked by legal disputes. Conventionally, the novel serves as the foundational structure for the cinematic adaptation. Instances abound where novels are accorded precedence and privilege over their film counterparts, while in other cases, novels are disregarded entirely.[i] In the realm of intellectual property rights, particularly within the context of copyright, scholars argue that movie rights are inherently vested in the novel’s author. The issue of adaptation rights has posed a challenge for courts, grappling with the nuanced determination of what constitutes infringement and fair adaptation. The absence of standardized parameters in applying various tests has led to complexities in legal proceedings.

Derivative Rights

In the realm of copyright, derivative works encompass adaptations, translations, or any form of modification or alteration applied to artistic or literary creations. To claim derivative rights, the creator must demonstrate the transformation, translation, dramatization, abridgment, or adaptation of the original material. The statutory definition of copyright, as outlined in Section 14 of the Act,[ii] provides specific criteria for determining when a work qualifies as a derivative. These rights are exclusively granted to the owner of the original work, and copyright protection is extended only to creators who obtain permission to utilize the original material. The independent right to derivative work is established only if there is a discernible transformation in the original creation.[iii]This standard was established in the landmark case of Eastern Book Company and others v. D.B. Modak and others.

Novels As The Foundation Of Films

The Indian film industry has extensively utilized numerous novels as the underlying structure for creating movies. Works ranging from Shakespeare’s Othello, Macbeth, and Hamlet, adapted into Omkara, Maqbool, and Haider, to movies like Kai Po Che, Two States, and Three Idiots, all penned by Chetan Bhagat, exemplify the transformation of novels into cinematic experiences. This trend extends beyond borders, as seen in Hollywood with Jurassic Park, a top-grossing film based on Michael Crichton’s novel.

[Image Sources: Shutterstock]

Copyright Media

The question arises: what value do these novel-inspired movies bring? The answer lies in a compelling script, renowned writers, and extensive publicity. The intrinsic worth of a film instantly rises when these criteria are met. Even when the storyline lacks excitement, the author’s fame contributes to the film’s production value.[iv] The fan base and attention garnered by the novel’s author facilitate faster popularity for the adapted movies. The trademark value of books also plays a significant role, drawing in readers who are curious to see the cinematic adaptation.

In many cases, the author’s fame outweighs that of the director unless the director is exceptionally popular. For example, the Harry Potter film series, written by J.K. Rowling, owes much of its popularity to Rowling herself. While actors play a crucial role, directors and producers remain behind the scenes and still profit in such instances.

As someone who avidly read the Harry Potter books, Author asserts that he watched the movies primarily because of J.K. Rowling’s plot and concept. Forming an opinion about the movie comes second, with the primary goal for the industry being to get audiences to theaters. The author believes that the hype and mass appeal are primarily due to the author of the book. It is rare to find a mediocre novel adapted into a movie, and novels should not be regarded merely as blueprints or templates for films. They are integral to shaping the storyline during the adaptation process, and authors deserve due credit when their work is transformed into movies for the audience.

Standard Of Copyright Infringement

Ordinary Observer Test

The assessment of copyright infringement poses a considerable challenge, given the multitude of factors involved in comparing two creative works. The absence of a single coherent standard for evaluating the varied aspects of these works necessitates a unified criterion, which is currently lacking. A fundamental prerequisite for the original author to claim rights over alleged infringement is the registration of the work. This examination explores both copying and actual copying through a two-pronged test for analyzing infringement issues.

The first prong involves determining whether the author granted exclusive access to a third party. In this context, the alleged derived work must be an independent creation to refute the claims of infringement. Actual copying, on the other hand, requires establishing the “improper appropriation” of the work, signifying substantive similarities between the two works. These similarities are assessed through the “ordinary observer” test, where the layman’s perception of similar aesthetic appeal denotes infringement.[v] The case of Arden v. Columbia Pictures emphasizes the importance of the “ordinary observer” test in determining whether a work is derived.[vi]

In India, the Honorable Supreme Court adopted the ‘ordinary observer’ test in R.G Anand v. Delux Films,[vii]echoing the American case of Daly v. Palmer.[viii] According to this case unmistakable impressions of complete copying in the minds of an ordinary audience watching a film would indicate infringement. However, legal scholar Nimmer suggests that these tests may fall short in certain cases, arguing that the ordinary observer test alone is insufficient to detect substantial appropriation of a work. He proposes a departure from the traditional approach, emphasizing the need for a more nuanced assessment.[ix]

The application of the ordinary observer test becomes a delicate matter, particularly in cases involving the adaptation of novels into films. While torts utilize the “ordinary prudent person” standard to gauge severity, copyright, concerning adaptability and derivative works, relies on the ordinary observer test. The inherent challenge with this standard becomes evident, leading to potential pitfalls in determining infringement.

Protection Of Novels Under Copyright

Copyright protection for novels has limitations, with certain works remaining unprotected due to the doctrine of merged expression, ideas, scenes à faire, historical facts, and instances of work being in the public domain. Although copyright law safeguards against exact copying of the basic plot or storyline, there are cases where novels are not afforded such protection.

Consider the example of the movie “Clueless,”[x] an adaptation of Jane Austen’s novel “Emma.” While the movie captures the essence of the book brilliantly through satire, the timelines and settings differ significantly. Despite visible similarities, the movie and the novel are distinct from each other. The comparison serves to highlight that not everyone may be aware that “Clueless” is an adaptation of “Emma.” In cases where copyright protection has not expired, the ordinary observer test might not determine the two works to be substantially similar, preventing a finding of infringement. “Clueless” is a legitimate adaptation that does justice to “Emma,” yet certain elements are not protectable under copyright law during the transformation from novel to film.[xi]

Another example is the film “Haider,”[xii] a Vishal Bharadwaj adaptation of Shakespeare’s “Hamlet.” The movie closely follows the plot, characters, scenes, symbolism, and metaphors. Differences in timeline and location exist, akin to the “Clueless” and “Emma” example. Despite these variations, the essence of the novel is preserved by the director, showcasing the challenges in determining infringement.

In both examples, certain elements of the novels may not be protectable, and the director may not be considered an infringer even with substantial resemblance. The director may alter settings, timelines, and omit certain elements, changing the aesthetic appeal while maintaining the essence. This transformation ensures that the film, while similar in some respects, is perceived as distinct from the novel. The adaptation process involves deliberate changes to prevent an exact depiction, maintaining a balance between similarity and difference.

Analysis On Copyrightability, Originality, And Aesthetic Appeal

Copyrigtability

Copyright grants exclusive rights to authors who create original literary, artistic, dramatic, or musical works. In the landmark CCH v. Law Society of Upper Canada judgment, the Supreme Court defined a work as “original” if it demonstrates the “skill and judgment” of the author. Section 3 of the Copyright Act empowers authors to produce or reproduce their work, granting them sole rights to copyright protection.[xiii]Therefore, authors have exclusive rights to adapt their written works into films or authorize third parties to do so.

Courts face challenges in determining infringement when borrowing parts of the original work. In the USA, the Nichols v. Universal Studios[xiv]case introduced the abstraction test, attempting to separate the idea from its expression. The distinction between “theme,” “plot,” and “idea” remains controversial, complicating discussions about copyright protection. Copyright infringement occurs when a substantive qualitative portion of the author’s work is taken without permission, requiring an analysis of infringement between the novel and the movie.

Originality and Aesthetic Appeal

The ordinary observer’s response to the essence of a work emphasizes the importance of aesthetic appeal. In the Peter Pan Fabrics Inc. v. Martin Weiner Corporation case,[xv]Judge Hand identified aesthetic similarities between works, considering color, patterns, arches, symbols, and rows. Even if laymen perceive similar aesthetic appeals, they may not delve into intricate details, typically declaring the works as inspired rather than copied. The determination of originality becomes complicated, requiring protection for designs that are both original and inspired for aesthetic appeal. The ordinary observer test might mistakenly identify non-original works as infringing, emphasizing the need for a definitive parameter for work protection.

Substantial Similarity and Abstraction Test

The Shamoil Khan v. Falguni Shah case [xvi] introduced the “Abstraction” Test, focusing on essential features to determine copyright infringement. The abstraction process involves stripping away embellishments such as motivation, mood, tone, and characters to identify the main theme of the plot. This approach contradicts previous decisions that stated themes, plots, and storylines, in general terms, cannot be protected by copyright. The dissimilar approaches create confusion and highlight the challenge of proving infringement in the Indian context.

Total Concept and Feel of the Work

The total feel and concept of the work, as applied in Softel Inc v. Dragon Med and Sci,[xvii]assess similarities in setting, sequence, mood, plot, and series of events through an ordinary observer. Special observing instances, including dialogues, should be considered. This standard overlooks the perception of the defendant as mere embellishments and may dismiss crucial differences. Determining the essential embellishments requires a thorough comparison and consideration of both the judge’s and lay observer’s minds.

Exceptions to Copyright Protection

Plots, themes, settings, characters, and timelines are generally not considered infringement, and the story’s plot is seldom protectable. The exception of “scenes a faire” is recognized in the Indian Copyright realm, though not explicitly provided for in the Copyright Act. This exception allows for the use of common elements that cannot be captured by copyright[xviii]. The doctrine was first discussed in the RG Anand Case, establishing that certain historical plots, subject matter, ideas, or legendary facts do not violate copyright infringement. Recent cases, such as Sameer Wadekar v. Netflix Entertainment Services,[xix] have applied the scenes a faire doctrine to determine non-infringement based on the public domain status of the material.

Conclusion

Looking at the legal side of turning books into movies shows it’s pretty complicated. We’ve seen challenges like who gets what rights, dealing with copyright problems, and finding the right balance between keeping the original book safe and letting creativity happen. The relationship between authors and directors adds another layer to this story. The ordinary observer test is a big deal in all of this. Overall, this journey has taught us a lot about how the law works in the world of making movies from books.

Author: Shivam Sharma, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i]Cameron Hutchinson, “Adapting Novel into Film”, SSRN, University of Alberta

[ii]Section 14 of Copyright Act 1957

[iii]Eastern Book Company and others. AIR 2008 SC 809

[iv]Douglas Y’Barbo, “Aesthetic Ambition versus Commercial Appeal: Adapting Novels to Film and Copyright Law”, St. Thomas Law Review 299, (1998)

[v]Peter Pan Fabrics Inc. v. Martin Weiner Corporation, 274 F.2d Cir 1960

[vi]Arden v. Columbia Pictures, (1995) US District, 908 F. Supp. 1248

[vii]AIR 1978 SC 1613

[viii]6 F. Cas. 1132 (C.C.S.D.N.Y. 1868)

[ix]Melville B. Nimmer, “Inroads on Copyright Protection”, Harvard Law Review, 1951, 1125.

[x]Clueless, Paramount Pictures, 1995

[xi]Jane Austen, Emma, Penguin Books, New York, 1992

[xii]Haider, Vishal Bhardwaj, 2014

[xiii]2004 SCC 13

[xiv]Nichols v. Universal Pictures Corp 45 F.2d 119 (1930)

[xv]Peter Pan Fabrics Inc. v. Martin Weiner Corporation, 274 F.2d Cir 1960

[xvi]2020(3)ABR541

[xvii]118 F.3d 955 (Second Circ, 1997)

[xviii]http://www.duhaime.org/LegalDictionary/S/ScenesAFaire.aspx

[xix]MANU/MH/0601/2020

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