further supports the grant of protection; and the principle of producer control adequately secures producers against the unauthorized colorization of black-and-white motion pictures. My testimony will touch briefly on each of these three principles.

1.

Authorship. The concept of authorship lies at the heart of copyright law. Copyright encourages authors to invest their time and money in making original contributions by promising them property rights in the resulting works. And copyright

recognizes that authorship is inevitably a continuous phenomenon. No author, however creative, can escape the need to draw on the work of earlier authors. Just

to take two examples, the motion pictures, The Maltese

Copyright recognizes that even a midget standing

on the shoulders of a giant can see farther than the giant. Copyright rewards not only the creator of the first work, but also the creators of the successive works that build on it. In a strictly legal sense, colcrized versions of black-and-white motion pictures are no different from motion picture versions of stories and novels. And under traditional principles they are no less entitled to copyright protection. Authorship in copyright has traditionally presupposed the impress of human intelligence and sensibility on the final product. As I understand the colorization process, considerable artistic judgment and skill go into the colorization of a black-and-white motion picture. Nonetheless, computer programs may

some day be capable of colorizing black-and-white films automatically, without the intervention of human skill

and judgment.

Surely, authorship will reside at some

level in the efforts that go into devising the computer

program capable of automatically colorizing a black

and-white motion picture.

But is the colorized motion

picture itself the product of authorship?

I see no present reason to delay or deny registration on this largely speculative ground.

Under

the existing colorization process, authorship clearly appears in the final product. However, the prospect and the question go to the very heart of copyright protection generally, and not just copyright protection for colorized motion pictures. But, these are

considerations for the future, not the present. The Copyright Office should be applauded for so early, and so effectively, alerting interested parties to the possible problems raised by copyright protection for colorized versions in its 20 August Notice of Inquiry on the subject. (My response to the Copyright office's Notice of Inquiry is attached as an appendix.)

consistently refused to play the role of cultural arbiter. So long as some degree of authorship is evident, copyright will protect the lowest, most common, works alongside the most exalted. As Justice Holmes observed in a decision giving copyright protection to circus posters, "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits." This prudent rule rests in part

on first amendment traditions that caution against discriminating on the basis of transient or elitist notions of artistic worth. More fundamentally, though, this rule rests on the principle that the purpose of copyright is not to reward authors as an end in itself, but rather is to encourage authors to produce those works that consumers want. The colorization of blackand-white motion pictures serves this purpose well, making classic motion pictures accessible for the first time to audiences their tastes shaped by a world of living color -- that would otherwise be disinclined to view them and, because of market forces, might never be able to see these films in any form on television.

3.

Producer Control.

At the very core of the

current debate over the colorization of black-and-white motion pictures lies a concern for authenticity. Conceptually, the concern over colorization differs little from the concern, recently expressed in some quarters, that the restoration of the Sistine Ceiling restore it to its authentic form. To be sure, the concern over colorization is less pressing.

-

While

which will be

there is only one Sistine Ceiling ruined or restored depending upon one's point of view -- colorized and black-and-white versions can exist side by side. But this difference raises the more subtle problem of the original author's possible interest in seeing that only the original, authentic version of his work is available, unclouded by other works that may distort his artistic vision.

Authenticity is an important and highly prized cultural value, one that public policy in this country has implemented through such measures as landmark

right to reproduce and prepare derivative works based on them copyright effectively gives motion picture producers the right to stop others from colorizing their works or, if the producer chooses, to authorize colorization under tightly controlled conditions, or to impose no conditions at all.

But, what of copyrighted works already created, and contracts already entered into, before anyone contemplated the colorization process? Does a contract granting the general right to make derivative works based on a black-and-white motion picture include the right to colorize the motion picture? The question, though important, is not one for Congress to answer. Rather it is to be answered by courts interpreting contracts under the canons of state law. These decisions will inevitably turn on the facts of a particular case. But it would not be surprising to see a court hold that the implied obligation of good faith between contracting parties includes an obligation respecting authenticity and requires, at the least, that the colorizer label his product as a colorized version of a black-and-white original.

What of works in which copyright has expired? Tort law has traditionally taken authenticity as one of its objects. Just to note one example, the Federal Trademark Act, which prohibits false representations respecting goods and services, may be construed to require, at the least, that the distributor of a colorized motion picture clearly label the work as a

colorized version of a black-and-white original, thus avoiding any imputation to the original creator of a connection to the colorized version. And, in the many important foreign markets whose legal systems recognize the doctrine of moral right, that doctrine may even more effectively control the performance of colorized

versions.

In sum, the brunt of my testimony is that copyright's principles of authorship and consumer choice support copyright protection for colorized films, and copyright's principle of producer control supports contractual arrangements protecting against colorization of black-and-white films. For contracts already made, and for black-and-white works in the public domain, producers must look to state rules of contract interpretation and to state and federal tort rules to secure their interests in authenticity.