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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
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.
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.
STANFORD Law SCHOOL, STANFORD. CALIFORNIA 94305
7 November 1986
Dorothy Schrader, Esg.
Notice of Inquiry: Registration of claim to Copyright
Dear Ms. Schrader:
This letter responds to the copyright office Notice of Inquiry, dated 20 August 1986, in connection with the abovereferenced matter. I am writing this letter entirely on my own initiative and as an expression of my personal views.
On the basis of the description of the colorization process set forth in the Notice of Inquiry, and on the basis of independently obtained information respecting the colorization process, I believe that, as a general matter, colorized versions of black-and-white motion pictures qualify as derivative works possessing sufficient original content to constitute independently copyrightable subject matter. As currently produced, colorized versions of black-and-white motion pictures appear, at the least, to embody the degree of originality contemplated by such cases as Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 908-911 (2d Cir. 1980), and the creators of these works would appear to have deposited "more than a penny in the box" that Professor Kaplan would require "to make the copyright turnstile revolve." B. Kaplan, An Unhurried View of Copyright 46 (1966).
My principal reservation with respect to registrability concerns the extent to which the colors employed in the colorization process are, and will continue to be, dictated by the scenic, costume and dramatic elements of the underlying black-and-white work. If the responses to the Notice of Inquiry reveal that esthetic convention or consumer preference dictate that the colorization process employ colors that are true to the original colors employed when the black-and-white film was produced, then, under the doctrine of Morrissey v. Procter & Gamble co., 379 F.2d 675, 678 (1st cir. 1967), copyright might arguably be withheld from the colorized version on the ground that only a single or limited number of ways exist to colorize the underlying black-and-white work, with the result that, by obtaining copyright on one colorized version, the copyright owner could effectively, if not technically, monopolize all colorized versions.
Apart from this speculative reservation, I believe that colorized black-and-white films will, as a general proposition, constitute copyrightable subject matter, and that it would be within the authority of the Copyright office to accept them for registration. Nonetheless, the office may, in its deliberations on the question, wish to address three sets of concerns:
(1) the concerns of the original creators of black-and-white motion pictures in the integrity of their works; (2) the possibility that copyright for colorized versions may effectively prevent
others from using the underlying black-and-white work even after that work falls into the public domain; and (3) the potential problems raised by the fact if it is a fact that colorization is to some significant extent accomplished through computer-driven technologies. In my opinion, none of these three concerns requires the Copyright office to refuse registration to colorized black-and-white motion pictures. However, the latter two concerns do suggest some further steps that the Copyright office might undertake in the event it decides to accept these works for registration.
(1) Integrity of the Underlying work. According to articles that I have read in the popular
press, some motion picture directors are understandably concerned that the artistic integrity of their black-and-white motion pictures will be impaired by the colorization process. Their plight, however, is no worse than the plight generally of authors, who are faced with distortions of their works, and who must rely on interstitial tort doctrines and contract arrangements to secure their interests. Presumably, too, owners of underlying works may in some situations obtain redress under 17 U.S.C. $203's termination of transfer provisions. Although, under section 203(a) (1), a derivative work -- a black-and-white motion picture based on an underlying novel, for example "may continue to be utilized under the terms of the grant after its termination," that privilege does not extend to the preparation, after termination, of other derivative Works which, in this case, would presumably include colorized versions of the derivative, blackand-white work.
In any event, this problem, to the extent that it is a problem -- stems from the lack of an integrated system of moral right in the United States. In no event should it be redressed through the expedient of withholding copyright registration.
(2) Extension of Copyright Term. In theory, the grant of protection to colorized versions of underlying black-and-white motion pictures will not extend the copyright term in the underlying black-and-white motion picture; although the colorized version itself could not be copied within its copyright term, the underlying work would be free for copying once it falls into the public domain.
One practical problem suggests itself however: there may be a concern that the copyright owner of the colorized version, who also owns the rights to, and all prints of, the black-and-white version, will, at the time the black-and-white version goes into the public domain, destroy all copies of the black-and-white work, with the result that anyone who wishes to copy the blackand-white work must necessarily copy the colorized version, thus exposing himself to liability for copying the copyrighted, colorized work. (This raises a tantalizing question: does one who copies a colorized version onto black-and-white stock infringe the copyrighted, colorized version, or has he merely copied the black-and-white content? Since the colorization process may add shadings to the underlying work, with the result that any black-and-white copy of it is in fact a version of the colorized work and not a true copy of the black-and-white work, liability in this situation seems a real possibility.)
One practical solution to this problem would be for the Copyright office to require, as a condition to registration of the colorized version, that the copyright owner deposit two copies of the black-and-white version on which the colorized version is based. If this approach is taken, two copies of the black-and-white version could at all times be available for public copying from the collections of the Library of Congress. Although I have not researched the authority of the Copyright office to require the deposit of complete prints of a motion picture under these circumstances, my initial impression is that such authority exists and that such a deposit requirement could, at the very least, be justified by the copyright office's valid
interest in determining whether the colorized version of a blackand-white motion picture indeed constitutes more than a trivial variation on the underlying black-and-white work.
(3) Originality of Computer-Created works. As I presently understand the colorization process, considerable artistic judgment and skill go into the colorization of a black-and-white motion picture. Nonetheless, it may -- or may soon -- be the case that computer programs will, without the intervention of human skill and judgment, be capable of colorizing black-andwhite films automatically. Surely, authorship will reside, at some level, in the efforts that went 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. But the question goes to the very heart of copyright protection generally, not just copyright protection for colorized motion pictures. Computer programs exist today that can themselves write other computer programs. Doubtless, such programs will proliferate in the future. Thus, I believe that it would be appropriate for the Copyright Office, if it has not done so already, to begin giving some thought to the general, very thorny question, of where, if at all, the line of copyrightability should be drawn for this class of works. event, although the issue strikes me as sufficiently speculative and complex to warrant a general inquiry at some point, it should not affect the immediate question of the registrability of colorized motion pictures.
If this letter raises any questions, or if there are any points that you would like me to amplify, please do not hesitate to call on me.
Senator LEAHY. After we finish, I would hope that each member of the committee and all the people involved in this issue will read your full testimony. And one of the reasons, of course, I wanted you to join us is your involvement in OTA's recent study on area's where new technology may have surfaced and the laws designed to protect them.
We heard some interesting testimony reflecting sharply differing views on how best to deal with colorization technology. We have made remarkable technological advances which were not even imagined 5 or 10 years ago.
But what do we do with it? Are we going to have to choose between being Luddites or Philistines in this regard? Do we say oh, gee, slam the door, or do we try to do something about it?
Mr. GOLDSTEIN. I do not think that is precisely the choice. I do not think that colorization technology raises any new legal issues that need to be dealt with outside the frame of the current requirements of copyright law, contract law and tort law. There is one area that wasn't testified to at all. The single question that colorization, as a new technology, truly raises for copyright lies in the prospect--not now realized because it's a labor intensive activity, but that may be realized at some point in the future-10 years, 50 years, who knows—when films might be colorized, indeed whole works might be created, without any intervention of a human hand, without any intervention of a human sensibility. That raises significant questions.
Are the resulting products to be entitled to copyright? I think part of the answer lies on where in the constitutional clause authorizing Congress to enact copyright you place your emphasis. Do you want to place the emphasis on "Authors" or on "Writings”? Do you want to have originality require that, at some level, the human mind reveal its impress in a work?
Those, I think, are the hard questions. They are not presently raised. The present technology leaves no doubt in my mind that these works are protectable. But, for the future there may be problems. We already have computer programs that write computer programs.
Senator LEAHY. Isn't that a philosophical question? As these technological advances come pell mell, one after another, are we too willing to accept change for the sake of change without looking at the long-range implications?
Mr. GOLDSTEIN. I think this is a wonderful occasion for hearings, to stop for a moment and ask precisely those questions.
I would note that there is one very important interconnection, and this extends beyond colorization the interconnection between copyright policy and patent policy. To the extent that, in the interest of copyright, let's say, or the directors' interest in curbing colorization, you decide to curb colorization, you are effectively curbing the development of a new technology. That interconnection appears in the area of photocopying, and other areas as well.
There is a balancing of interests that needs to be attended to between copyright policy and patent policy.
Senator LEAHY. You see privacy rights here with people colorizing a film and using the artist's name or likeness without permission to publicize the derivative work.
Mr. GOLDSTEIN. It surely does not appear to be privacy in the sense that I conceive of it. I might add that I have not yet been able to get a clear enough fix on the operational consequences of the remarks made by members of the first panel to focus on whether they would like to see this worked out through a privacy route or through a copyright route, or through an entirely separate route. I think their testimony raised far more questions at an operational level than it answered.
Senator LEAHY. This past weekend I went up to my farm in Vermont, brought these huge briefing books that I have here from brilliant staff who have put all this together. They gave me all these things to go over. And I go back and forth and decide as a primary fact it is a fascinating subject, but what do we do now? Where do we go with it?
My next question, partly reading what some of the Berne Convention countries do, leads into this.
Is there any process in either Europe or American intellectual property law for giving leave to the creator of a work whose work becomes more valuable after the creator knowingly and willfully parts with his creation?