Ms. Schrader has studied this issue in some depth. Let me ask her to further elaborate on the question.

Ms. SCHRADER. Our decision was that as a class colorized films might be subject to registration. We haven't yet decided that any one of them would be registered. But obviously, on the basis of the argument that was made to us in our proceeding, we reached the conclusion that some colorized films probably would involve sufficient original human authorship to justify registration. A telling argument that was made was that the decisions regarding the particular hues and tones and shades of colors are made from a possible palette of 16 million and that about 4,000 choices are made in a typical 90-minute colorized film. That kind of selection-the number of choices from the possibilities that are available—would constitute original authorship in terms of the copyright law.

And, as Mr. Oman said earlier in response to other questions, it is the standard that has been developed over the years by the courts. In the 1976 Act, the subcommittee looked at the question of whether originality should be defined in the statute. You decided not to define it in the statute, and instead to rely on the precedents that had been developed over decades by the courts. The 1976 House report makes clear that there was no change in the concept of originality as developed by the courts over the years.

So what the Copyright Office has done is apply that concept of originality to the arguments that were made by the colorizers in our proceeding and decide that as a class we could not say that all colorized films are unoriginal. Some of them would seem to be original.

Now, of course, we don't grant the copyright. If, in fact, there is original authorship in a work, the copyright exists from creation of the work under the current Act. We do not grant rights. We register claims and make a public record of those claims and then ultimately, again as Mr. Oman has said, the courts decide whether there is a valid copyright. That usually is decided either in the context of an infringement action where the Copyright Office is not a party, or a declaratory judgment action might be the other possibility.

Mr. COBLE. Thank you. Let me ask you an additional question concerning H.R. 2400, which includes a provision that allows objection to films that have been materially altered to continue in perpetuity. I would like your response to that provision. What do you think?

Mr. OMAN. That does raise very serious constitutional questions I think. The Constitution, in Article I, section 8, is very explicit on that point. The grant of copyright protection should be limited and not open-ended. I think this is one of the issues that would have to be dealt with if the Gephardt bill is going to be processed any further.

Mr. COBLE. Thank you. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Before I yield to Mr. Berman-it is quite possible that the computer program for colorization, assuming it is, you know, really a computer operation, that it can be registered as a copyright and also that the product of the program quite separately may be registered in your office. You make no distinction, is that correct?

Mr. OMAN. Well, they would be two separate and distinct works. The computer program would be registered as a computer program and the product, the art, the final result of the computer-assisted artwork would be registered if there were sufficient authorship involved.

Mr. KASTENMEIER. I would like to yield to the gentleman from California.

Mr. BERMAN. Thank you, Mr. Chairman. Just one last question. You seem to be endorsing the idea of a labeling requirement. Congress mandating the labeling of, I don't know whether you just meant colorization or you meant any material alteration. I am wondering if you include in that the notion of either the colorization or another alteration without the consent of the director or the screenwriter. In other words, communicating as part of the label that aspect of the alteration.

Mr. OMAN. We have not formally endorsed any of the proposals. What I have tried to suggest is that, if Congress feels that fairness requires some congressional intervention, the most promising avenue to pursue would be one of labeling. Certainly, from our perspective, a voluntary agreement would be the best of all possible worlds. But, labeling does show promise in terms of registering the complaints of the artistic creators of the film in a place where the public can be aware of them and make their purchase or viewing decisions based on that disclaimer.

But on the other aspect of your question let me ask Ms. Schrader to comment.

Ms. SCHRADER. Sorry. I have lost-

Mr. BERMAN. Well, I mean, just to label that this film has been colorized is not telling us a lot. I guess you are learning that it was originally a black and white film. Were you including in this notion of an acceptable response to the concerns of the creative community the labeling of the lack of approval of the director or the screenwriter, assuming those are the appropriate people?

Ms. SCHRADER. I think we are saying that this is a possibility. We think it is an idea worth exploring. We are not really endorsing the proposal at this point, but certainly that might be one aspect of a labeling system, so that the creative people would have an opportunity to signify their disapproval.

Mr. BERMAN. Thank you.

Mr. KASTENMEIER. Actually, I think there are at least three levels of types of labeling here that may be considered. One relates the technical issue. "This film has been altered by colorization" or something like that. The second one is a disclaimer from any of the creative community that may be authorized to disclaim. And third would be the requirement that the title be changed. That is a form of labeling. To be sure, a drastic one, I am sure, as far as the copyright owner is concerned, but it is nonetheless one of the proposals. Would you place that in the same category as other labeling possibilities?

Mr. OMAN. Changing the title?

Mr. KASTENMEIER. Yes.

Mr. OMAN. Well, in the real world I wonder what practical impact that would have. What more notice would it put people on than keeping the original title with the other disclaimers attached?

I understand from talking to someone before your hearing started that there are people out there who are renting video cassettes. And are they going to tell customers when they come in and ask for "Yankee Doodle Dandy" that we don't have "Yankee Doodle Dandy" but we have "The Life and Times of George M. Cohan." It is more form without substance I think, and I am not sure it achieves the purpose in protecting the original work. It will be talked about in its original title whether or not we require that the title be changed because that is how it is generally recognized.

Mr. KASTENMEIER. Well, I wouldn't want to press the matter further at this point, but it does appear to me that there are at least three levels of "labeling" which would have different impacts in terms of the film and the two communities affected.

If there are no further questions, I want to thank you again, you, Mr. Oman, and Ms. Schrader, for your contributions this morning. Obviously, we hope you will pursue the inquiry that you have embarked upon, and we will doubtless need to call on you in the near future again for help on this and other issues.

Mr. OMAN. Thank you, Mr. Chairman. We are at your service. Mr. KASTENMEIER. Now, I would like to introduce and call forward our first panel. It consists of a well-known motion picture director, Arthur Hiller; the distinguished film critic of The New York Times, Vincent Canby; and the dean of the Cardozo Law School, Monroe Price, who has studied the issue of artists' rights extensively over the years. If the three of you will come forward. We are most happy to have you here. I don't know that there is any particular order. Perhaps we will call on Mr. Hiller first.

TESTIMONY OF ARTHUR HILLER, FILM DIRECTOR, ON BEHALF OF THE DIRECTORS GUILD OF AMERICA; VINCENT CANBY, FILM CRITIC, THE NEW YORK TIMES; AND MONROE PRICE, DEAN, CARDOZO LAW SCHOOL

Mr. HILLER. Mr. Chairman, and members of the committee.

In the United States you have the right to purchase a painting by David Hockney, by Rauschenberg, by Roy Lichtenstein.

In the United States, you have the right to take a knife and cut that Rauschenberg painting into four pieces, and sell four so-called Rauschenberg paintings or paint in another character on the Hockney to "make it more appealing" in your terms.

In the United States, you have the right to desecrate or mutilate the artistic expression and intent of the artist.

In the United States, you have the right to purchase a motion picture, whether it be "Citizen Kane" or Ninja Vixens or any others.

In the United States, you can edit that film down to a 30-minute snappy version (as they did on the airplanes), or to fit into a time. slot. You can pan and scan the film to fit a smaller frame as you see fit, you can computer color it, you can technically slow it down. or technically speed it up to fit a time schedule. You can digitally change the film.

In the United States, you have the right to desecrate or mutilate those films to change them from the artists' desired intent.

A cut version of "Citizen Kane" is not Orson Welles' "Citizen Kane." A colored version of "Casablanca" is not Michael Curitz' "Casablanca."

Why is it in our country over the past few years that "money" is the reason for so many decisions, for so many laws? It seems as if all rights are tied to money, whether they be property or artistic rights.

Will there ever come a time when laws and decisions are made for moral reasons, when there can be rights other than money rights? By the way, we are not looking for a royalty or a payment for changes. We're looking for no changes except by the artist.

Shouldn't the author of a book, the composer of a symphony, the maker of a film, shouldn't these artists have a right to not have their creative work changed, defaced, mutilated?

The recent Berne debate resulted in a conclusion by this committee, and by Mr. Oman this morning, that there was sufficient American law to cover these moral right cases. Other than registration of copyright for museums and archives. Where is that law? What is that law?

George Stevens went to the Federal Court about the slashing of "A Place in the Sun," and the Federal Court said there is no legal moral right. John Huston's lawyers told him to forget it, there are no laws to help.

It's time for a change now in this country. I feel it falls to you and to us now, in 1988, to rewaken that sense of respect for our painters, our film-makers, our composers, for all our creative_artists, and to try to rekindle in all the Congress a perception of the Congress' responsibility as the guardians of a national cultural heritage. Please don't let parts of it be destroyed.

Now, obviously, one way is with legislation. The Motion Picture Integrity Act of 1987, introduced by Congressman Gephardt is a moral rights bill and provides the necessary protections. Its intention is to preserve the work of art, to have it remain intact and unchanged, to preserve the aesthetics of the artist's vision by which he or she communicates to the audience today and the audiences of tomorrow. It prevents the material alteration of a motion picture unless the principal director and screenwriter (or their artistic heirs) both agree to such an alteration.

The bill is a modest and restrained approach that balances the interests of the copyright holders with the interests of the creative artists and the larger societal interest of protecting our country's social heritage.

In Europe, there is already a distinction between economic rights and moral rights. 1. The moral rights include the right of the artist to control the aesthetic fate of his or her work. 2. The economic rights include the right to disseminate that work. To buy it, to sell it, to make profit.

In Canada, they have just this month passed a law that includes tougher penalties for piracy of films and of records. The moral right is designed to prevent unauthorized tampering with the works of the artists.

We seem to be letting the computers freely take over. Do we really want computers to be the artists of the future? Computers can already provide you with a painting, with a musical piece and

in terms of films, the computer techniques are on the brink of adding voices to silent films or computer changing the musical score, or computer adding new shots to a scene in an old film, or a newer one, or computer adding new scenes to the movie or new actors to a scene.

Am I being extreme?

Am I being ridiculous?

Well let me tell you of some of the computer technology that will be with us in a year or so. The computer will be able to recreate people it has on film. Yes, that is what I said the computer will be able to recreate Humphrey Bogart and give him different lines to say in the scene-or it can create a whole new scene with all new characters so the picture will appeal more to young folks.

Or what about replacing Humphrey Bogart in the entire Maltese Falcon film with Sly Stallone, who is seen as more popular with the audiences today. That's right, they can computer-create Sly Stallone and his inflection and replace Humphrey Bogart in any of his films or replace John Wayne in any of his films-or John Wayne can replace Sly Stallone in today's films.

And it can happen to you. Let us say you were on Nightline. With Ted Koppel and ABC decides to run the program again on Saturday afternoon, and there you are again. Your face, your words, your inflections-except the network felt they could attract more of the young audience by changing your voice to Peewee Herman's! Your face is the same, the words are the same-just your voice and its inflections have changed to Peewee Herman's. Would you say, "That's OK, its the words that count.'

It is these kinds of violations of the creative community that has our anger and our hurt aroused.

What's more, it shortchanges the audience. The original interpretation of the artist is what they should see and feel, not an interpretation of the interpretation. And that is also true for the audiences of the future. They deserve to hear or see it as the creative artist intended and as it defines the culture of our society today. Thank you.

Mr. KASTENMEIER. Thank you very much, Mr. Hiller. [The statement of Mr. Hiller follows:]