With the current boom in Spain’s audiovisual industry, we look at film adaptations of literary works and the right to transformation enshrined in Spanish intellectual property law. It is an issue that is by no means free from controversy and has, on occasion, even led to moral damages being awarded to an author when it was considered that a film version failed to portray “the spirit of the novel”.
The famous novelist Juan Marsé died recently on 18 July. The author of 15 novels – not to mention innumerable short stories, articles and other writings – Marsé was possibly the Spanish author who could boast the most big screen adaptations of his works.
Unfortunately, despite his love for the seventh art, none of Marse’s celluloid offspring managed to garner praise from their literary creator. Quite the contrary in fact. Until the end of his days, the Barcelona novelist was – to put it mildly – a vociferous critic of the cinematic versions of his novels.
Marsé rejected the adaptions of his novels, not because they failed to follow the text, but because the films were bad (at least they were in the Catalan novelist’s view).
This might go some way to explaining why, despite the constant battles between the writer and the different directors who presumed to adapt his novels to the silver screen (Vicente Aranda in particular was a target of his displeasure) these disputes never ended in the courts. Marsés’ antipathy to the film versions of his works was not because they were badly adapted or failed to remain faithful to the original, his objections were merely on aesthetic grounds.
Nevertheless, the Spanish courts are no strangers to conflicts arising between novelists and film makers. An illustrative case is that of Javier Marías, author of the novel All Souls, who filed a lawsuit against the film producer Elías Querejeta, P.C., S.L. following his film adaption, Robert Ryland’s Last Journey.
In this case, which reached the Supreme Court, the novelist and member of the Spanish Royal Academy, lodged a complaint against the producer for contractual non-compliance because, among other reasons, the film version failed to convey “the spirit of the novel.” Both the Supreme Court and the Provincial Appellate Court of Madrid confirmed the judgment in first instance which (i) declared cancellation of the contractual agreement (ii) ordered Elías Querejeta P.C., S.L. to pay 6 million pesetas in moral damages and (iii) ordered that any reference to the novel All Souls or to the novel’s author be removed from the film credits.
What was interesting in this case was the fact that the court of first instance held that the film adaption did not keep to the spirt of the novel All Souls as, according to the producer – it was not a question of “simply a transfer from paper to film reel, but more an adaptation in the form of a work imbued with creativity and originality”.
Another ground for the decision of the court of First Instance no. 38 of Madrid was the claimant’s witness statement, briefly quoted in the judgment:
“…the film Robert Ryland’s Last Journey cannot in any way be considered an adaptation or free interpretation of All Souls, as it is about as similar to this novel as it is to Nabokov’s Lolita, that is, nothing like it”.
In the light of the foregoing, it could be questioned why Elías Querejeta even felt he needed to obtain the intellectual property rights from Javier Marías to produce Robert Ryland’s Last Journey. In fact, if the film “cannot in any way be considered an adaptation” of the novel, was this a case of transformation in the legal sense of the term or was it merely inspiration?
The answer to this question is crucial, as it entails the loss or gain of something that is extremely important, namely, hard cash. And unquestionably article 17 of the Intellectual Property Law (IPL) recognizes the author’s exclusive rights pertaining to the exploitation of his work in whatever form which includes the right to alteration.
Thus, alteration of a pre-existing work requires the author’s permission, yet conversely, by merely taking inspiration from the work, the only license required is that granted by the creative muses.
So, how can transformation be distinguished from inspiration? Transformation differs from reproduction in that the former adds original and new elements to the initial work. That is, for there to be a transformation, the original work needs to be significantly altered.
Transformation involves creative activity, changing the identity of a literary work, thus modifying and presenting it in a form that differs from the original. The result of this creative activity is a different work, however, it is not entirely independent of the original “derivative work” (article 11.5 LPI).
The derivative work should have two seemingly opposing features namely, (1) it should be an original work and (ii) it should maintain the essence of the pre-existing work. If the derivative work is not sufficiently original, it will simply be a reproduction of a pre-existing work. But on the other hand, if the derivative work fails to retain the essence of the earlier work, it cannot be deemed to be derivative, but should instead be considered an independent work which was, however, inspired by an earlier creation. Nevertheless, mere inspiration, just like ideas, is free and does not require consent from anyone.
Finally, it is important to highlight the fact that article 39 of the IPL establishes a limit to the right of transformation, namely, parody. In this way, the parody of a published work is not considered to be a transformation that requires the author’s consent, provided that there is no risk of confusion or that it does no harm to the original work or its author.
Who knows? Perhaps Juan Marsé was familiar with article 39 IPL, and so he never got involved in claims against film directors who transferred his novels to the big screen. After all, for Marsé, those film versions were simply dull copies, poor imitations, ultimately parodies, of their literary superiors.
Fernando Álvarez de Toledo
Garrigues Intellectual Property Department
