of collaborators, the Congress decided that it would be the producing entity. The entity which, coincidentally, takes the risk, makes the investment, and generally seeks to assure the film is available to the public; rather than an entity that will try to inhibit its dissemination. So when we talk about the author's consent, the author in that sense should be viewed as the copyright owner, as Mr. Brown has suggested. And that is the person who Congress has already decided should have the control. Mr. COBLE. Thank you, gentlemen. Thank you, Mr. Chairman. Mr. BERMAN. Mr. Chairman. Mr. KASTENMEIER. The gentleman from California. Mr. BERMAN. Are those terms synonymous, "copyright holder" and "author"? Mr. BAUMGARTEN. The original copyright owner will be the author. If the copyright is sold, there could be another copyright owner who is not the author. But in an employment-for-hire situation the producing entity in films will be both the initial copyright owner and the author. Mr. BERMAN. Well, what about in the contemplation of the Berne Convention? Is the author there the copyright holder? Mr. BAUMGARTEN. The ad hoc committee that studied this issue concluded rather firmly that the work made for hire concept in the United States law was fully compatible with the notion of author in the Berne Convention, and that the Convention leaves it up to each country to decide for itself who the authors will be. And in most countries the rights go to the producing entity by one vehicle or another. Mr. BERMAN. Thank you, Mr. Chairman. Mr. KASTENMEIER. If there are no further questions, the committee thanks you, gentlemen-Mr. Brown, Mr. Mayer, and Mr. Baumgarten-for your contributions. You are the concluding panel today and we deeply appreciate your contributions. Mr. BAUMGARTEN. Thank you, sir. Mr. BROWN. Thank you, Mr. Chairman. Mr. MAYER. Thank you. Mr. KASTENMEIER. Accordingly, this concludes today's hearing and the committee stands adjourned. [Whereupon, at 2:35 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.] I am enclosing an analysis of the Mrazek amendment on film colorization to the Interior and Related Agencies appropriations bill for 1988, which I previously submitted to the House Appropriations Committee on behalf of the Video Software Dealers Association. We respectfully request that it be included in the record of today's hearing. As you know, the text of the amendment has only recently been made available, and the Appropriations Committee has not held public hearings on this issue. We appreciate your subcommittee's intention to review this issue carefully. Thank you for your time and attention to our concerns. Sincerely, Burton V. Wakes Burton V. Wides Legislative Counsel, VSDA BVW/ice CC: All members of the Subcommittee on Courts, Civil (161) We are writing on behalf of the Video Software Dealers Association to oppose adoption by the full committee of the Mrazek amendment on motion picture films to the Interior Appropriations bill. The Video Software Dealers Association ("VSDA") is the national trade association for home video distributors and retailers, who rent and sell videocassettes every day to millions of Americans. VSDA represents about 20,000 of the roughly 30,000 retail home video outlets across the country. Our members are dedicated to assuring quality control of their product for the consumer public. Toward that end, in cooperation with the motion picture industry, VSDA implements a vigorous anticounterfeiting program to keep unlawfully pirated, inferior copies off the market. At the same time, VSDA is equally committed to meeting consumer preferences in home video. Indeed, the hallmark of the industry is serving the public by providing "freedom of choice" for the consumer. In that context, VSDA strongly opposes this amendment. The motion picture industry and others have already detailed for your committee many of the disturbing implications, practical problems and fundamental inequities of this ill-advised legislation -- including the basic point that the bill would stand copyright law on its head by permitting the copyright owner to be sued under the very laws designed to protect his copyright. Therefore, we would like to focus on the three main reasons why VSDA opposes this amendment: It denies consumers "freedom of choice" and constitutes inappropriate government interference in the marketplace. . It is directly harmful to VSDA's members. The amendment unfairly exposes them to liability for a dispute and circumstances about which they have no direct knowledge and over which they have no control. Telephone: (202) 857-6000 Cable: ARFOX Telex: WU 892672 ITT 440266 Telecopier: (202) 857-6395 The Honorable Jamie L. Whitten June 15, 1988 Page 2 • The bill is not necessary in order for viewers to retain the option of seeing the film in its original black and white format. The proposal empowers an independent commission to designate films as part of our national cultural heritage and then sharply circumscribes the editing, colorization or other alteration of such films. We leave aside the Pandora's Box inevitably opened whenever someone acting for the State is authorized to rule on questions of artistic taste. The bill proposes a direct and unjustified threat to the VSDA members and to other video retailers throughout the United States. If a movie that has been designated for the National Film Registry is "materially altered" -- a term left dangerously vague retailers would be prohibited from selling or leasing it without disclaimers being displayed upon the cassette package in a form prescribed by the Commission. Failure to comply would expose retailers to liability under the copyright law. There simply is no reason to put such a vague and onerous burden on thousands of video dealers throughout the Nation. Unlike large film production enterprises, most video retailers are small operations; many are family businesses capitalized with personal savings. These video retailers have had no involvement in the production or alteration of the film. The dealer would have to constantly check to see which films might have been added to the Federal Registry. He or she would then have to try to determine whether the film had been substantially altered in the view of the Commission and also determine whether the package displayed the required disclosures. All of this information rests with those who made the film and those who may have altered it. For these reasons, while we oppose this bill in principle, we urge that if any prohibitions and disclosure obligations are imposed they be limited to those parties directly involved. Second, if a movie originally filmed in black and white has been colorized, then it is unlawful to sell or lease it under the original title. Once again, this puts an unreasonable burden upon each retailer to ascertain whether the film was originally produced in black and white and, if so, to determine whether the title has not been sufficiently changed. That is an unfair and unreasonable burden to impose on small businesses. Third, the public's freedom of choice will be seriously impaired. VSDA has just completed a survey of its members with respect to the colorization of black and white films, the issue driving this amendment. The results are clear. VSDA members overwhelmingly oppose legislation to curtail colorization because their customers prefer to view films in color and are eager to see older films in that format. The The Honorable Jamie L. Whitten June 15, 1988 Page 3 members of VSDA strongly believe that the public should be allowed to decide. With all due respect, the marketplace is the best arbiter on this issue, not the Congress. Proponents of the amendment may argue that the provision does not literally preclude colorization. It merely requires a change of title and full disclosure. Nonetheless, the ensuing disruption and confusion will be enormous. Can you imagine anything more confusing, and possibly deceptive, than requiring the public to ascertain the "alias" of the classic film they wish to see in color? At best, dealers and customers would have to go through a meaningless charade in which the customer asks for the film he wants to see and the dealer assures him that, for example, he must rent the "Life and Times of George M. Cohan, Set to Music," rather than "Yankee Doodle Dandy." What is the point? That simply will create unnecessary chaos. It also will impede the potential enjoyment of wonderful older movies by new generations of the viewing public. Finally, the bill is unnecessary to preserve the ability of the viewing public to enjoy the black and white version of the film if they wish. The fact is that, those consumers who do wish to see a film in its original black and white format need only turn the color knob on their TV all the way down. They will then see the film in black and white. They will even enjoy an extra bonus in film quality. The colorized print will have been made from the best quality black and white print available. Our views may be colored by our devotion to freedom of choice for the consumer, but to us the issue is black and white. We urge the Committee to follow a sound admonition "Let the people decide." - In any event, if the Committee nevertheless does create an official arbiter of artistic integrity, our members urge you to use reasonable restraint in any enforcement scheme and to impose liability only upon those directly involved in producing the altered films. On behalf of VSDA members throughout the Nation, we thank you for your time and consideration of their concerns. CC: Sincerely, & Rubbersborg Charles B. Ruttenberg Burter V. Wede Burton V. Wides Legislative Counsel, VSDA All Members of Appropriations Committee |