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integrity for years without discernible negative impact on the production

of derivative works.

Article 6bis of the Berne Convention states:

(1) Independently of the author's economic rights, and
even after the transfer of the said rights, the author
shall have the right to claim authorship of the work
and to object to any distortion, mutilation, or other
modification of, or other derogatory action in relation
to, the said work, which would be prejudicial to his
'honor or reputation.

If Congress is seriously considering subscribing to these principles, it

would seen: appropriate to move in that direction by protecting the artistic integrity of black and white motion pictures, and eventually to expressly provide in our Copyright Act for the comprehensive protection of

the per sonal dinension of the creative process.

Paint Your Wagon - Please!: Colorization,
Copyright and the Search for Moral Rights.

David J. Kohs

c/o David u. Strawn, P.A.
Suite 602
100 W. Lucerne Circle
Orlando, FL 32801
(305) 849-0544

-

"Citizen Kane could definitely be colored.
easier on the eye."

It would be

Brian Holmes, director of creative
services for Colorization, Inc.

"They have the sensitivity of wallpaper."

film director Richard Brooks, in
response to the argument that
attempts to interfere with the
colorization process amount to
censorship.

"The last time I checked I owned those films."

- notorious "colorizer" Ted Turner.

A war is being waged over the colorization of old black

and-white films. 1

The battle lines are for the most part clearly

drawn.

On the one side are colorization firms and television

moguls such as Ted Turner, who have invested millions of dollars

in the exploitation of this new technology.

In opposition to

colorization are film directors, both old and new, as well as

such professional organizations as the Directors Guild of America

and the Screen Actors Guild.

Scattered among the two sides are

film critics and film viewers.

It is perhaps the opinion of this

latter group, the viewing public, which will ultimately determine

the success or failure of the colorization industry.

This battle for public opinion is currently being waged in the press and other media. 2 It will no doubt eventually take on

more of a legal character and invade the courts and perhaps the

legislatures of our country.

While creative and artistic

objections to colorization are easily articulated, it is much

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more uncertain exactly what legal obstacles might actually stand

in the way of the process.

This article will examine the

colorization process and briefly describe the various components

of intellectual property law which might, either successfully or

not, be invoked in response to the issue.

In particular, our

system of copyright protection will be examined as it relates to

colorization, with emphasis on its notable absence of protection

for moral, as opposed to economic, rights of authors and creators.3 Finally, the relative merit of construing these legal

theories to defeat the colorization of black-and-white films will

be addressed, along with some possible recommendations.

Colorization of old Films

The Money of Color

The new technology which allows the coloring of movies

originally filmed in black-and-white was developed independently

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Colorization, Inc. and C.S.T.

and C.S.T. figure most prominently in the

current colorization controversy.

Both these firms apply color

mainly to feature length black-and-white films, usually under

contract with the owner of the copyright in such films. Or, in the case of public domain films, meaning films whose copyrights have expired, these colorization firms apply their trade without the necessity of contractual agreement.

4

Tintaretto, a Canadian

based firm, has presently confined its activities to colorized,

updated versions of old "music videos" of Fred Astaire, Frank

Sinatra and the like.

The colorization process is essentially akin to painting by

numbers, only with computer sophistication.

A computer artist

initially colors a single frame of a film, assigning one of some

50,000 available hues to each of the 525,000 pixels,

or dots,

which may comprise any given frame.

Once this frame has been

colored, the computer keeps track of the object as it moves from

frame to frame, but only until the scene changes.

When a new

scene appears, the process must be repeated.

For this reason,

the colorization process is painstakingly slow, and sometimes takes several hours to complete just one minute of film.5 The

process is very expensive as well:

It can cost upward of $3,000

per colorized minute

about $300,000 per feature length film.

In spite of the steep initial cost, colorization means big

bucks for the owner of the revised film.

Black-and-white films

have a low market value, especially to a younger generation which

has known almost nothing but color in its lifetime.

In contrast,

it is estimated that a typical colorized movie could be worth

over $2,000,000 from television and video cassette sales alone.

Recent experience has supported such an estimate:

A recent

television broadcast of the colorized version of The Maltese

Falcon resulted in almost a 65% increase in market-share rating. 6

Accordingly, advertising time slotted to future colorized

broadcasts is now sold out months, even years, in advance.

Since

over 1/3 of all movies made to date were filmed in black-and

white, the available supply and potential market for colorized

films is staggering.

Today's foremost vehicle for colorized films is Ted Turner's

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