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 If Congress is seriously considering subscribing to these principles, it would seem 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 personal dimension of the creative process. "Citizen Kane could definitely be colored. It would be - Brian Holmes, director of creative "They have the sensitivity of wallpaper." - film director Richard Brooks, in "The last time I checked I owned those films." - notorious "colorizer" Ted Turner. A war is being waged over the colorization of old blackand-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, 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 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 by three computer companies, Colorization, Inc., Color Systems Technology, Inc., and Tintaretto, Inc. Of the three, Colorization, Inc. 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 When a new The colored, the computer keeps track of the object as it moves from frame to frame, but only until the scene changes. 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 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-andwhite, the available supply and potential market for colorized films is staggering. Today's foremost vehicle for colorized films is Ted Turner's |