Senator LEAHY. I am going to back up and ask you, am I correct that there is no clear-cut line of court cases that would be applicable to the questions we have heard here today?

Mr. GOLDSTEIN. Well, again, if you are dealing with a case where there is no contract, and it is a public domain work, there is little case law.

Actually, one of the most powerful bodies of case laws supporting this approach is Federal case law under section 43(a) of the Lanham Act.

Senator LEAHY. If we wanted to make clear law in this area of moral rights, we have to write the law anew?

Mr. GOLDSTEIN. That is correct, if one wanted to do that.

Senator LEAHY. If one wanted. I realize that becomes a political question as well as a legal question, of course.

Mr. GOLDSTEIN. It is also a resources question. Do you want to rely on a system that has lots of holes in it but does incrementally protect authors' rights, or do you want to spend the time and place that high on your agenda?

Senator LEAHY. I think you stated the issue very well, Professor. I appreciate it.

Again, I appreciate your taking the time to come here. And once you have received your copy of your testimony back, if there is something additional you want to add, don't hesitate to do so. Let me know and we will make it part of the record because I think more and more, as we look back at this question, that you are going to be seen as the wrap-up hitter. It is your testimony we are going to be looking to.

Mr. GOLDSTEIN. Thank you very much.

Senator LEAHY. We will stand in recess subject to the call of the Chair.

[Whereupon, at 12:20 p.m., the subcommittee adjourned, subject to the call of the Chair.]

Mr. Chairmanı, members of the Subcommittee.

My name is Edward Damich. I am Associate Professor of Law at George Mason University. I am pleased to be able to submit this testimony for inclusion in the hearings of the Subcommittee on the colorization of black and white motion pictures. The views that I am about to express are my own. I am not acting as advocate for any group.

I am delighted that the Subcommittee has moved so promptly to inform itself and to attempt to identify and prioritize the issues in the colorization controversy. As I see it, the central issue is artistic integrity. I do not oppose colorization because I think that modern viewers need a cultural uplift; I oppose it because the motion picture that they will see will not be the motion picture as it was made.

The claim that colorization widens the audience for classic black and

white motion pictures is spurious for the simple reason that viewers will not be seeing those motion pictures at all; rather, they will be seeing distortions of them in colors suggestive of a 1939 World's Fair postcard. (This fact produces a curious dilemma for the colorizers: on the one hand, they must argue that colorizing results in more people seeing the

original--an argument that tends to minimize the effect of colorization on the original; on the other hand, they must argue that the colorized version is sufficiently different from the original to consitute a derivative work--an argument that weakens their claim that they are widening the audience for the original.)

I believe that the authors of motion pictures--as all authors--have the right to have their work presented to the public in the form in which it was created. At a time when the United States is considering adherence

to the Berne Convention with its clear moral rights provision (Article bbis) and at a time when five states have moved in the direction of insuring artistic integrity, it would be anomalous for Congress to withold legal protection for the integrity of black and white motion pictures. Legal protection of artistic integrity, however, is not a matter of accepting a foreign concept. Even our current copyright law--which I admit is primarily aimed at economic rights--recognizes the non-economic or personal dimension of the creative process. The U.S. Supreme Court, for example, recently reiterated that the personal values of privacy and creative control were implicit in the sec. 106 (3) right of first publication. Harper & Row Publishers v. Nation Enterprises, 105 S.Ct. 2218, 2228 (1985). As far back as 1976 the U.S. Court of Appeals for the Second Circuit held that a cause of action to protect artistic integrity was implicit in copyright law. Gilliam v. American Broadcasting Cos., 538 F.2d 14, 24 (1976). (That case involved a broadcast of a Monty Fython television program. It should be noted that the "mutilation" identified

by the court was the showing of the program--the original versions of the program were unaffected by the defendants' actions.) The Copyright Act of 1976 even contains an express provision protective of artistic integrity. Sec. 115, which deals with compulsory licenses for making and distributing phonorecords, provides that "the arrangement shall not change the basic melody or fundamental character of the work."

The Copyright Act's provision for derivative works does not negate the concept of artistic integrity. The fact that French law provides for both derivative works and for artistic integrity through the concept of droit moral (moral rights! is evidence of the fact that there is no inherent theoretical problem. Francon, Propriete Litteraire et Artistigue, 52-53 Moreover, the requirement of originality in our own Copyright Act indicates a distinction between mere distortions and bona fide derivative Indeed, the late Frofessor Nimmer when writing in his famous treatise on copyright law about the issue of preemption of the artistic

(1970).

works.

integrity provisions of the California Art Preservation Act supported a distinction between mutilation and defacement on the one hand and true derivative works on the other. Sec. 8.21[D], text accompanying nn.

34.23-.30 (1986).

The distinction is admittedly a fine one, but surely no less evanescent than the concept of originality itself. Compare, for example, the reasoning in Alva Studios v. Winninger, 177 F.Supp. 265 (S.D.N.Y. 1959), where a scale reduction of Rodin's sculpture, "Hand of God," was held to have sufficient originality with L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976), where a plastic model of a cast iron "Uncle Sam" bank was held not to be sufficiently original. When Congress and the courts are convinced that a value should have legal protection, imprecise distinctions have proved workable.

Common law copyright is another indication that the personal dimension of the creative process has been recognized in American law. Warren and Brandeis, for example, relied on the privacy protection aspect of the common law right of first publication in their famous article to prove that the value of privacy had been given legal recognition in American law. "The Right of Privacy," 4 Harv. L. Rev. 193 (1890). The fact that common law copyright has largely been preempted by the 1976 Copyright Act does not negate the point that American law has been appreciative of the non-economic aspects of copyright, one of which is artistic integrity. Indeed, the U.S. Supreme Court in Harper & Row drew on the personal aspect of the common law right of first publication in arriving at its decision regarding sec. 106 (3) of the current Act. Supra at 2226-27.

Thus far I have tried to prove that there is ample evidence in American copyright law, both common and statutory, of the recognition of personal values, such as artistic integrity. Although this recognition is emerging more and more out of the background of copyright law through cases such as Harper & Row and through awareness of the structure of copyright law in other countries, such as the adherents of Berne, federal legislation is necessary not only to fix the concept firmly in the American legal consciousness, but also to deal with the more pressing, concrete violations of the personal rights of authors such as the infringement of the artistic integrity of black and white motion pictures through colorization.

The law of contract interpretation and the Federal Trademark Act are not adequate to insure the artistic integrity of motion pictures. What I have said regarding moral rights in general in my comment on the Report of

"[T]he

the Ad Hoc Working Group on U.S. Adherence to the Berne Convention is equally applicable to the constituent right of artistic integrity: attempt to find inchoate moral rights protection in more familiar causes of action is largely wishful thinking." 10 Colum.-VLA J. Law & Arts 655,

662 (1986).

There are only a few cases that, through a close reading, suggest a right of integrity separate from the issue of attribution. Freminger v Columbia Pictures, 148 U.S.F.Q. 398, 402 (N. Y. Sup. Ct. 1966); Stevens_v. NEC, 148 U.S.P.Q. 755, 758 (Cal. Super. Ct. 1966); Autry v. Republic Productions, 213 F.2d 667 (9th Cir. 1954). Most of the cases confuse the issue with that of reputation. In other words, the issue becomes the

association of the name of the author with a distorted or mutilated work such that his/her reputation is imperiled.

Although this is a legitimate concern, the main issue in colorization as I see it is less the damage to the author's reputation that may result from the association of his/her name with the colorized version, and more the fact that his/her work has been distorted whether it is attributed to him or not.

The same confusion manifests itself when reliance on sec. 43(a) of the Federal Trademark Act (the Lanham Act) is urged. Again, sec. 43(a) is aimed at deceptive practices, a concept that seems to require attribution of a distorted work. Is it conceivable that Woody Allen would feel that his complaint was addressed merely by a disclaimer of authorship of a colorized version of Broadway Danny_Rose?

I do not, however, wish to overstate my case. It is possible that contract interpretation and the Federal Trademark Act could evolve into protection of artistic integrity; indeed, the recognition of a Lanham Act cause of action in Gilliam (supra at 24-25) is promising. The disclaimer issue, however, is bound to bedevil such attempts, and the normally slow, gradual progress of case law is a luxury that cannot be indulged in given the pace at which black and white motion pictures are being colorized.

I would like to conclude by reiterating that for me the issue of artistic integrity is at stake in the colorization controversy. It is not

a question of dictating the tastes of the viewing public, but rather of protecting an author's right to have his/her work presented to the public in the form in which it was created. A deep understanding of the values protected by American copyright law reveals a sensitivity to this personal aspect of artistic creativity. This understanding is further confirmed by the experience of other nations who have expressly protected artistic