LEGAL ISSUES THAT ARISE WHEN COLOR IS ADDED TO FILMS ORIGINALLY PRODUCED, SOLD, AND DISTRIBUTED IN BLACK AND WHITE TUESDAY, MAY 12, 1987 U.S. SENATE, SUBCOMMITTEE ON TECHNOLOGY AND THE LAW, Washington, DC. The subcommittee met, pursuant to notice, at 9 a.m., in room SD226, Dirksen Senate Office Building, Hon. Patrick J. Leahy (chairman of the subcommittee) presiding. Staff present: Ann Harkins, majority chief counsel, and Matt Gerson, majority general counsel, Subcommittee on Technology and the Law. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator LEAHY. The subcommittee can come to order. Thomas Jefferson once observed that, "Law and institutions must go hand in hand with the progress of the human mind. As new discoveries are made *** institutions must advance also, and keep pace with the times." We in Congress must keep Mr. Jefferson's admonition in mind as we tackle the difficult legal questions that are a natural byproduct of new technologies. This subcommittee is the Judiciary Committee's forum for exploring whether evolving technologies require that we modify our laws to keep up with technology or in anticipation of the technological advances of the future. The subcommittee began its work this year with 2 days of hearings on the semiconductor chip industry, obviously at the heart of American technology. We produced the Semiconductor Chip Protection Act Extension of 1987. Today we address a different issue. We are going to examine the legal issues that arise when color is added to black-and-white movies. We are not doing it with a bill before us or a legislative fix in mind. The technology used in colorizing black-and-white films points out the need for Congress to stay ahead of the curve and begin to look at our laws with imagination equal to that of the inventors of technological innovation. We can't just sit back and try to fit new technology into old legal holes. We have to be creative while hold (1) ing firm on fundamental American principles of law, fairness, and the entrepreneurial spirit that will carry us into the 21st century. The subcommittee, with the help of the expert witnesses before us today, is going to explore how colorization affects the copyright, trademark and contract law, artistic integrity and the preservation of a major part of our national cultural heritage. I am delighted to welcome our witnesses to the Subcommittee on Technology and Law, and we look forward to their testimony. We are delighted to have you, Ms. Rogers, Mr. Silverstein, Mr. Pollack, Mr. Allen, and Mr. Forman. We are also going to have one of the changes that has occurred basically only in this subcommittee. We are actually using electronic things. We have moved in the past year away from the quill pens and now we are moving all the way up to television, and we will have a tape which will first explain the colorization process, and we will hear from the witnesses before us, and then our witnesses from the second panel have prepared a videotape describing how color is added to black and white film. When I refer to "colorization," I am speaking of a registered trademark of a company called Colorization, Inc., I use that term to refer to the general practice of adding color to black-and-white film. I mention that only because my staff knows how concerned I get when we make verbs out of nouns and so on, and I just want you to know that we are trying to use a term that is now being used by everybody else. We are going to dim the lights and show a brief film. [A videotape film was presented on the colorization of black-andwhite film.] Senator LEAHY. We will start, Mr. Silverstein, with you, if we might. STATEMENTS OF A PANEL CONSISTING OF ELLIOT SILVERSTEIN, SYDNEY POLLACK, WOODY ALLEN, AND MILOS FORMAN ON BEHALF OF DIRECTORS GUILD OF AMERICA; AND GINGER ROGERS ON BEHALF OF SCREEN ACTORS GUILD Mr. SILVERSTEIN. Senator Leahy, speaking on behalf of the delegation for the Directors Guild of America, I would like to thank you for giving us an opportunity to be heard before this distinguished committee and take our first steps before you in our search for redress of a grievance. We are here to try to illuminate the Directors Guild's view of what we consider to be an assault on our national cultural heritage, the defacement of the work of film artists of the past, and the chilling hand of restraint on film artists who will create for and in the future. Who and what is the Directors Guild of America, and why is it saying all these nasty things about the nice companies that love our black-and-white films so much that they have chosen to make them more readily available by presenting them to the Nation in computer-colored disguise? The Directors Guild is a labor organization, consisting of almost 8,500 men and women across the country who make film and tape entertainment. A vital part of our labor contract with our employ ers is entitled "Creative Rights." These rights describe a list of recorded acknowledgments with the Producers' Association that directors are artists and, as such, have certain rights, not privileges, to be involved in an essential way of all phases of filmmaking. When photography is finished, even those of us who work on the basis of a scale contract, whether in television or theatrical films, set about editing the film for no additional pay for a period which can range from days to months. The opportunity to express this devotion to the work is a right negotiated with and recognized by our employers. Our compensation, Senator, is not in coin alone; it lies in very large part in love of the art, bringing the screenplay to life, in the satisfaction of realizing visions which we love. Having dedicated ourselves singularly and collectively to seeking the opportunity to achieve the highest quality of work of which we are individually capable, having physically and emotionally survived the rigors of the creative process, only to be robbed of the intellectual fruits of the process, we feel is an unacceptable and undeserved penalty for our aspirations toward excellence. So our sensibilities are acutely bruised when we see our blackand-white films doused in what, in our opinion and that of almost all critics, is artificial, inferior, computer-generated color. Apart from positions and perceptions, there is one clear and distinctive difference between the coloroids and us. That difference is money. There are those who stand to profit from the computer coloring of other peoples' works, and those and those led by the Directors Guild of America who stand to gain not one penny. Most members of the Directors Guild have never made a black-and-white film and may never have the opportunity to do so. I respectfully suggest that the committee judge the various arguments offered to you in the light not only of merit but of motivation. I would like to read to you now a part of a report to our National Board which outlines our philosophy on the subject of computer coloring. The ideas it expresses provide the basis for similar positions taken by almost all artistic guilds, other interested groups, and almost all critics. The act of artistic desecration whereby a specific dramatic and photographic vision is altered, after the fact, by a group of technicians, with neither the advice nor the consent of the artists who created these images in the first place, constitutes, in the words of John Huston, "as great an impertinence as for someone to wash flesh tones on a Da Vinci drawing. The defenders of computer coloring claim that in many instances color film was not available at the time these pictures were made. We believe that this is a pointless argument. Whether it was or not, the fact of the matter is that films, like other artistic products have personalities of their own. In many cases, black and white was chosen and color specifically rejected for artistic reasons. Some of the artists remain alive to testify to the deliberateness of their choices. The Guild must support them and lends its voice in protection of the work of those artists who are not here to defend their work for themselves. The real point to be addressed is that if films were made in black and white, for whatever reason, their creators designed them to take advantage of the unique opportunities and possibilities as well as the limitations offered by black and white photography. "Colorization" simply undermines these values and intentions. The fundamental mistake made by those who promulgate "colorization" is that blackand-white films need to be "improved". They are what they are, for better or for worse. Adding color to original black-and-white films makes them something differ ent than they were. "Grapes of Wrath" in color would not be "Grapes of Wrath" as directed by John Ford. Likewise, "Citizen Kane," "Casablanca," and countless other cinematic treasures will be fatally diluted if subjected to the "colorizing" annihilation. "Colorization" advocates also maintain that viewers who are offended by the process have the option of turning down the color knob on their television sets. We take strong exception to such a suggestion as a fundamental corruption of the artists' professional rights. The choice of the appearance of any work of art does not rest with the reader, the listener, the viewer, or the audience. It rests with the artist. It is perhaps the most basic right of the artist, and one that the Directors Guild, as you know, has fought for by means of many public debates and through many contract negotiations. But there is an equally compelling reason that we believe that the Guild should oppose "colorization." We believe that "colorization" represents the mutilation of history, the vandalism of our common past, not merely as it relates to film, but as it affects society's perception of itself. "Colorization" is a rewriting of history, which we believe to be inherently dangerous. We believe that the Directors Guild should support the notion that no civilization worthy of the name can afford to promulgate lies about itself. If we do not preserve with fidelity images of how we once viewed ourselves, we increase the likelihood that we will arrive at a distorted understanding of who we are and how we got that way. "But," say the coloroids, ignoring us, "many black-and-white films were not made by choice but by studio fiat, and many directors would have wanted color if they had been allowed to use it." Putting aside the question whether any professional would still have a job after misapplying such colors, the reason that the palette was or is limited to black-and-white may be historically interesting, but it is artistically irrelevant. We work, like most artists, with what we have. For example, black-and-white photography is not color photography with the color removed. It involves a completely different technique. Now to the question of why anyone should care, particularly the intellectual leaders and lawmakers of our society, let me offer some reasons. No art, including film art, is created in a social vacuum. Our artists have been formed and informed by our culture which, in most cases, gave them birth, and in all cases gave them an op-portunity for the kind of free expression that led finally to the production of their work-work unique and special to their nation, born of a particular time and a particular place, solving particular aesthetic and technical problems with the particular tools available to them at that time. [Submissions of Mr. Silverstein follow:] SPEAKING ON BEHALF OF THE DELEGATION FROM THE DIRECTORS GUILD OF AMERICA, I WOULD LIKE TO THANK YOU FOR GIVING US AN OPPORTUNITY ΤΟ BE HEARD BEFORE THIS DISTINGUISHED COMMITTEE AND TO TAKE OUR FIRST STEPS BEFORE YOU IN OUR SEARCH FOR REDRESS OF A GRIEVANCE. ILLUMINATE FOR YOU THE DIRECTORS GUILD'S WE ARE HERE ΤΟ TRY ΤΟ VIEW OF WHAT WE CONSIDER TO BE AN ASSAULT ON OUR NATIONAL CULTURAL HERITAGE, THE DEFACEMENT OF THE WORK OF FILM ARTISTS OF THE PAST, AND THE CHILLING HAND OF RESTRAINT ON FILM ARTISTS WHO WILL CREATE FOR AND IN THE FUTURE. WHO AND WHAT IS THE DIRECTORS GUILD OF AMERICA AND WHY IS IT SAYING ALL THESE NASTY THINGS ABOUT THE NICE COMPANIES THAT LOVE OUR BLACK AND WHITE FILMS SO MUCH THAT THEY HAVE CHOSEN TO MAKE THEM MORE READILY AVAILABLE BY PRESENTING THEM TO THE NATION IN COMPUTER COLORED DISGUISE? THE DIRECTORS GUILD IS A LABOR ORGANIZATION, CONSISTING OF ALMOST EIGHTY FIVE HUNDRED MEN AND WOMEN ACROSS THE COUNTRY, ALMOST FORTY-FIVE HUNDRED OF WHOM ARE DIRECTORS, AND ALMOST TWENTY-FOUR HUNDRED OF WHOM ARE DIRECTORS OF SCREEN PLAYS. OTHER MEMBERS ARE ASSISTANT DIRECTORS, UNIT PRODUCTION MANAGERS, ASSOCIATE DIRECTORS, AND STAGE MANAGERS IN TELEVISION, AND DIRECTORS OF NON-SCREEN OR DIRECTORS, NEWS DIRECTORS TELEPLAY PRODUCTIONS, SUCH AS SPORTS |