The Digital Media Project

 

Source

Philip Merrill

Title

TRU #82 of adaptation

No.

040909merrill04

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

TRU of adaptation

2.

Summary description of TRU

in opposition to the traditional creator's TRU to restrict adaptation, this TRU refers to the common tendency to create adaptations and derivative works regardless of whether these are legally authorised; creators of adaptations acquire a copyright in their adaptations but not to the prejudice of prior copyrights in the material that was adaptated

3.

Use records of TRU

With all the force of "fan fiction" it seems the need to make adaptations is unstoppable, often involving some sort of performance of adapted versions. This question of what constitutes an adaptation can be helped by contrasting it with TRU translation and TRU parody. In many ways a translation is a special case of adaptation that is well-defined because it narrowly relates to language. Parody is a special exception to the rule that authorisation is needed, and illustrates some sort of boundary of adaptation since the parody must be different enough from the original to stand out as a parody. Like TRU performance, this TRU adaptation can potentially be considered a province comprised of either thieves or licensees, but that is not a constructive way to look at it.

4.

Nature of TRU

Berne Article 2(3) protects "adaptations" of literary and artistic works, but as Paul Goldstein discusses at section 5.I.I.I.B.v of International Copyright, there may be "significant ambiguity about the legal status of a derivative work created without permission from the copyright owner of the underlying work."

This is a very productive usage and for the creative person, provides an excellent reason to get a rounded education and exposure to many sources from which adaptations can be made. Many original works can be created when someone starts by adapting something someone else did, but winds up creating an authentically original new work. Also, some fans are aching and eager to "play" with their favorite beloved characters by being able to act out or create scenes in which they appear. An author might want to restrict the scope of these and many successful scenarios can be imagined. Equally, if an author did not want their work adapted into repugnant forms, like pornography, they could restrict this although the creator of the repugnant form would likely resort to parody in order to go ahead anyway. This has frequently been done.

The creator of a derivative work should not make it harder for someone who buys their adaptation to buy a reproduction of the original. The merchandising of derivative works was once parodied in Mad Magazine along the lines of, "You liked the book, so you'll love the movie; you liked the movie so you'll love the TV show; you liked...so you'll love the cocktail napkins." The cascading effect of this merchandising can be considered part of the original author's stream of economic exploitation.

5.

Benefits of TRU

The big question of whether this is done legally has a lot to do with the big question of who benefits. In itself, perhaps, this TRU is neutral. It would benefit a creator of an adaptation to receive permission to go ahead from the author of the original. It could benefit the original author to have the adaptation done by somebody else, provided that the adapter do a good job. Since these conditions permit multiple outcomes, arguably the question of who is helped or hurt by this TRU should be answered by, "It is neutral."

6.

Possible digital support

There is a lot that media creation devices can do to support adaptation, even to the point of creating customised adaptation through computer programming. Arguably, many videogames permit a large degree of this, and some videogame user groups have taken it quite a bit farther, for example allowing importation of customized "sprites" or environments.

An interesting e-mail remark of Leonardo's on March 4, 2004 pertains to this. Phil was recommending that we did not need to do a template for TRU fixation because it is an analogue example that has almost no bearing on the digital space. He believes that our DMP Terminology use of "fixation" is almost completely distinct, and that since Digital Media is based on different natural phenomena than analogue media, so the meaning of "fixation" is radically different. Leonardo countered that analogue fixation was a very meaningful right and Phil asked whether he was suggesting it was in TRU political freedom. To which Leonardo replied that TRU political freedom was "too big" but that it "of course" included fixation. Phil does not understand fixation well enough to have much of an opinion, and so he veered into a question based on the idea-expression dichotomy (as well as the approach of Kant and others to author's rights by sweat-equity in intellectual property under natural law). Phil asked "Are you saying it is somehow the fundamental right to physically make an expression bearing the imprint of the creator's personality." Leonardo replied, "In computer language it is the right to output a version of the internal computer memory in a way that fits the features of the selected output." What Leonardo said should be digitally supported and could be considered an implementation of TRU of adaptation.

7. Requirements Adaptations should be able to use copyrighted material, automatically tabulating what has been used where. That way subsequent permissions can be sought and there is at any rate no effort to conceal the nature of the Use.

8.

References