Saturday, January 16, 2010

“Original script”“based upon a novel” – The Rs. 1.5 Billion Oxymoron?

‘3 Idiots’ the highest grossing Aamir Khan starring Indian movie has earned Rs. 1.5 billion ($ 70 million), and counting. The Chetan Bhagat-Hirani ‘original screenwriter’ turned into the proverbial storm in the tea-cup after both sides traded insults, revealed hurt feelings and expectation failure and then simmered down after the Producers threatened defamation action that they had fulfilled all their legal obligations by adhering to the contract signed with Bhagat.

All of this provoked the question – what were the rights, contract terms; if it had been all agreed, why was there heartburn? Story in short - Chetan Bhagat, the original author of ‘Five Point Someone’ had agreed to allow for his book to be adapted into a movie provided he a. received closing credits; b. approved the script, both of which apparently occurred. The 3 Idiots makers have argued that once they have fulfilled the contract terms (payment + above conditions), they have met all their legal obligations. #1 Is this the correct read of the law?

The Producers have claimed that most of the screenplay is different from the original book; and both sides have traded arguments on the extent of the differences/similarities. Producers arguing only 2-5% have been retained; and Bhagat arguing that 70% remains the same. The Producers have been listed 30 reasons for how 3i differs from the book – ( click on ‘Whats New’ frame and then ‘Press Releases’).

#2 Is the extent of similarity and variance legally relevant in these circumstances – a legally agreed adaptation rather than illegal copying (copyright violation)?

The law of copyright provides Bhagat as the author with the right to prevent unauthorized copying of his work including adaptations. It is for this reason that the Producers contractually bought the movie adaptation rights from Bhagat and then, adapted the novel into a screenplay appropriate for making a film. The screenplay writers, Producers etc are of course entitled to separate copyrights in their expression/creative work aka the screenplay, movie etc. The extent of similarity and variation (whether 2% or 70% etc.) would have been legally relevant if it was either a situation of unauthorized copying – either the Producers making an adaptation without the author’s permission or the author also claiming copyright over the final screenplay/film. Neither of which is the case here; making #2 issue legally irrelevant. Adaptation means modifications and the creator of the adaptation would while separately entitled to a copyright in her output or creative work cannot simultaneously, argue that it is “original” and unrelated to the original novel.

It is somewhat disingenuous to list the differences and similarities between the two works when it is a legal adaptation. There is of course tremendous criticism about this pedantic approach even in infringement suits; however it is even less appropriate (obfuscating the issue) in legal adaptation situations because the adaptation IS based upon the first work, which is not being contested. In other words, if the two works were so different such that the second work (screenplay in this case) is unrelated and independent of the novel, what would be the necessity to buy the adaptation rights and acknowledge the film as ‘based upon the original book.’ In effect, it is like saying “Adapted from but yet Original” and unrelated to the first? Independent and original in relation to other screenplays, sure, but also in relation to the novel that it is an adaptation of?

The crux lies in the argument that it is “Original Screenplay” and simultaneously, an Adaptation based upon the novel, two mutually exclusive claims. In other words, Original, independent work would mean any similarities with the novel are merely co-incidental; but in this case, the deliberate similarities would be contractually required and permitted as it was a legal adaptation (fulfilling agreed contract terms)? Two wholly contradictory claims, a clear logical impossibility.

More significantly, the ink around the irrelevant and empty #2 claim has obfuscated the real and legal issue at hand (#1 above). An author continues to have ‘special rights’ to be acknowledged as the author and to ensure his work is not denigrated even after he assigns or sells the right to commercially exploit the work (s. 57 and see Paternity Rights, in Moral Rights/Droit Moral) This formed the basis for the terms included in the contract (a. and b. above)

Can author’s right to acknowledgment be reduced by contract? By law, the author’s right to be acknowledged (creator’s Paternity Right) remains with the author even after signing the contract with publishers, film-makers etc. In other words, an author may sell or transfer his right to commercially exploit the work which is separate from the paternity right (which the law does not allow to be sold or contracted away). In other words, the parties cannot by contract (private arrangements) modify the law (agree upon terms inimical to the law such as not acknowledging the creator of the work).

But in this case, the acknowledgment terms at issue were in the film or the creative work of the Producers. Bhagat’s authorship rights remain sacrosanct and irreducible in his creative work, the novel; (yielding a stronger legal case if it involved claims against the book publishers for acknowledgment in the novel.) However, the acknowledgment in this case was involved in the film, another person’s creative work (and another’s copyright). Since the film stemmed from the contractual transfer of the adaptation rights, it would arguably be governed by adaptation provisions (and contract terms) rather than falling within the inalienable legal protections (or moral right provisions).

In other words, the special acknowledgment status provided to creators by law is reserved to their work (and does not blanket include others’ work, even if related). The screenplay writer, filmmaker etc would each have supreme rights in their product. This distinction would only be fair and required; (else it will chill follow on creative work and create excessive monopolies). Second, by ensuring adaptation rights can only be bought from original authors, the copyright law secures maximum commercial benefits for original authors.

And in practice, courts would be very reluctant to play micro-managers overturning terms agreed by parties (end or starting credits) etc., significant to a decision on whether to file a legal suit.

From a copyleft perspective, I bemoan the lost opportunity. Usually, copyright disputes become embroiled in theft language with Producers/Publishers crying hoarse about street vendors selling counterfeit copies, and or movie producers defending how their movie is not a rip-off of another film (just inspired )- all tricky issues for copy-lefters whereas this would have been a morally easier case to argue against large media corps. constant fight for more extensions of copyright. Plus, evenly poised from a legal perspective - Bhagat could have emphasized on the oxymoronic issue of the “Original” screenplay of an adapted work; and Producers on the creativity involved in subsequent work (and arguing against more copyright expansions in this instance).

1 comment:

  1. The Times issue today carried an interesting piece with reactions from various authors whose books are presently being made into films - War of the Story-tellers.



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