imposition of restrictions on alterations to existing motion pictures would violate the "takings" clause of the Fifth Amendment to the U.S. Constitution. The producers and colorizers reject the directors' attempt to invoke the public interest, arguing that the directors actually seek a right permitting them to insist that the original version be the only version distributed to the public. They note the public's preference for color television viewing, and they point to their preservation efforts in restoring and making available black and white versions of motion pictures along with the colorized version. They stress the critical economic need and benefit of distributing motion pictures in non-theatrical markets. The producers and colorizers deny that collective and individual bargaining are inadequate and that directors should have the final say over the form in which their works are distributed in post-theatrical markets. We then analyze these various arguments, concluding as follows. Proponents of change in the existing law should bear the burden of showing that a "meritorious public purpose is served by the proposed congressional action." If this threshhold is met, Congress is then faced with the "delicate job of bartering between what are often contrary interests." In analyzing the directors' assertion that a meritorious public purpose is served by protecting the integrity of their works, we note that in adhering to the Berne Convention, the United States has declared that its law satisfies the obligations of the Convention, one part of which is Article 6bis, the moral rights provision. In adhering to the Convention, the United States specifically declared that the totality of existing U.S. law - federal, state statutory and common law provides a level of moral rights protection that at least rises to the minimum level required by Article 6bis. The question of whether moral rights should be unified in a single federal system under the Copyright Act is the subject of dispute, but, after joining the Berne Union, it cannot be denied that the United States recognizes moral rights. Accordingly, the prevention of material alterations to motion pictures in a manner that injures the reputation of the creative collaborators of the film does represent a "meritorious public purpose," at least on its face. However, invocation of the public interest by some of the directors gives rise to a degree of ambiguity since they do not, strictly speaking, seek to preserve the original version of motion pictures, but instead seek to obtain rights for individual directors to decide whether the theatrical version should be materially altered.3 Additionally, we conclude that if Congress is persuaded that it should vest directors and screenwriters with increased moral rights, then Congress should also include the other creators in the list of beneficiaries. For example, the authors of the underlying works used in motion pictures should get such benefits and should not be forced to rely on 3. The ambiguity of this invocation of public interest does not, of course, apply to directors' attempts to prevent material alterations to the works of other directors created during Hollywood's "Golden Era." contractual protection - protection which the directors claim is inadequate for vindication of their rights. Finally, we discuss the likelihood that a violation of the takings clause of the Fifth Amendment would result from the grant of a new federal moral right as applied to existing motion pictures. Given this problem, the issue becomes whether legislation is required for future motion pictures, since very few motion pictures are now shot in black and white, and since many theatrical motion pictures are deliberately shot within, parameters that ameliorate the need for extensive panning/scanning when the films are subsequently adapted for viewing on television screens. We also discuss the importance of ensuring that new theatrical motion pictures are created, and of protecting the interests of broadcasters, cable systems, and video retailers in subsequently delivering those pictures to the public. Chapter 6: Preservation In this chapter we discuss issues of preservation, including the availability of the original version of motion pictures, and the opportunity to view that version in theatrical exhibition, on videocassettes, and on cable and broadcast television. We review the steps taken by various private and public organizations to preserve motion pictures and the approaches that may be taken to better coordinate these various efforts. Chapter 7: Conclusions Chapter 7 contains our conclusions. Based on the testimony before the congressional committees and the Copyright Office, and the various written comments submitted to us in this inquiry, the Copyright Office reached the following conclusions: (1) The Subcommittee should seriously consider a (2) If a unified federal system of moral rights is (3) If the Subcommittee prefers an industry-by- interests; (4) If the Subcommittee chooses to grant a higher THE TRADEMARK ACT OF 1946 AND TECHNOLOGIES FOR ALTERATION OF MOTION PICTURES Report to the Subcommittee on Courts, Intellectual Property and the Administration of Justice Committee on the Judiciary United States House of Representatives March 15, 1989 Patent and Trademark Office |