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the Ad Hoc Working Group on U.S. Adherence to the Berne Convention is equally applicable to the constituent right of artistic integrity: "[T]he attempt to find inchoate moral rights protection in more familiar causes of action is largely wishful thinking." 10 Colum. -VLA J. Law & Arts 655, 662 (1986).
There are only a few cases that, through a close reading, suggest a right of integrity separate from the issue of attribution. Preminger_v_ Columbia Fictures, 148 U.S.F.Q. 398, 402 (N. Y. Sup. Ct. 1966); Stevens_v._ NBC, 148 U.S.P.Q. 755, 758 (Cal. Super. Ct. 1966); Autry_v. Republic Productions, 213 F.2d 667 (9th Cir. 1954). Most of the cases confuse the issue with that of reputation. In other words, the issue becomes the
association of the name of the author with a distorted or mutilated work such that his/her reputation is imperiled.
Although this is a legitimate concern, the main issue in colorization as I see it is less the damage to the author's reputation that may result from the association of his/her name with the colorized version, and more the fact that his/her work has been distorted whether it is attributed to him or not.
The same confusion manifests itself when reliance on sec. 43(a) of the Federal Trademark Act (the Lanham Act) is urged. Again, sec. 43(a) is aimed at deceptive practices, a concept that seems to require attribution of a distorted work. Is it conceivable that Woody Allen would feel that his complaint was addressed merely by a disclaimer of authorship of a colorized version of Broadway Danny_Rose?
I do not, however, wish to overstate my case. It is possible that contract interpretation and the Federal Trademark Act could evolve into protection of artistic integrity; indeed, the recognition of a Lanham Act cause of action in Gilliam (supra at 24-25) is promising. The disclaimer issue, however, is bound to bedevil such attempts, and the normally slow, gradual progress of case law is a luxury that cannot be indulged in given the pace at which black and white motion pictures are being colorized.
I would like to conclude by reiterating that for me the issue of artistic integrity is at stake in the colorization controversy. It is not a question of dictating the tastes of the viewing public, but rather of protecting an author's right to have his/her work presented to the public in the form in which it was created. A deep understanding of the values protected by American copyright law reveals a sensitivity to this personal aspect of artistic creativity. This understanding is further confirmed by
the experience of other nations who have expressly protected artistic
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."
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, 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
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.