Film adaptations of historical novels – The Popess

Examples of film adaptations of historical novels have become increasingly common in recent years. As an adaptation of a literary work, such adaptation fundamentally requires the consent of the author or the corresponding rights holder. However, the particular feature of historical subject matter lies in the fact that the underlying actual events are generally in the public domain. This therefore raises the question in such cases whether a film adaptation infringes on copyright at all, and to what extent there is no free use that is permissible even without authorization.

In its decision "The Popess," which is fundamental for this category of cases, the Regional Court (LG) Hamburg had to deal with a case in which a screenplay for the production of a television series was created on the basis of the novel "Pope Joan" which appeared in the United States in 1996, without the consent of the author.

Decision of the Court

The court (Regional Court (LG) Hamburg, judgment of 31.01.2003, Case No.: 308 O 324/01, The Popess) established that in addition to the novel as such, individual parts as well as its content were capable of copyright protection. Although the retelling of actual historical events and legends is generally not subject to copyright protection, if a certain scope for creative design is utilized, for example because only individual events from the life of the historical figure are known, copyright protection may be obtained within the scope of possible creative design.

Free use of the plaintiff's novel could, according to the conditions applicable in case law, only be assumed if the adopted work components fade into the background in the new work. Free use would therefore no longer apply if distinctive substantive elements had been adopted and incorporated into the screenplay at a dramaturgically corresponding point in its development. In the case of historical subject matter which has been dramatized or embellished by the author of the literary source through the addition of non-historical events, the adoption of such independently created elements generally constitutes an unfree adaptation. This may also be the case for individual characters in a novel, provided they are elements that are personally distinctive and form-creating.

Based on the adoption of such elements, the court affirmed an injunction claim in order to prohibit the defendant from using the screenplay for a film adaptation.

The court rejected an infringement of the plaintiff's title rights to "The Popess," due to the lack of risk of initial infringement necessary for an injunction claim. The court based its decision on the title "The Popess." Since the working title of the screenplay was "Joanna the Pope," this title, even if it enjoyed copyright protection as a work title and taking into account the German translation "Johanna die Päpstin," was not sufficient for the assumption of a risk of initial infringement.

Conclusion

In principle, historical facts or legends are not subject to copyright protection. However, if there is scope for an independent creative effort, copyright protection may be claimed for such effort. The use of such elements capable of copyright protection is only possible without the consent of the author if these elements are no longer clearly in the foreground in the new work. However, if these are adopted unchanged, as is the case here, an unfree adaptation exists, which is not possible without the consent of the author.