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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:
attempt to find inchoate mor al rights protection in more familiar causes
of action is largely wishful thinking."
10 Colum. -VLA J. Law & Arts 655,
There are only a few cases that, through a close reading, suggest a
right of integrity separate from the issue of attribution.
Columbia Pictures, 148 U.S.P.Q. 398, 402 (N. Y. Sup. Ct. 1966); Stevens_V..
NBC, 148 U.S.P.Q. 755, 758 (Cal. Super, Ct. 1966); Autry_y._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 hisiher reputation is imper iled.
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
nanie 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 author ship of a
color 12ed version of Broadway Danny Rose?
I do not, however, wish to over state 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.
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 color ized.
I would like to conclude tuy reiter ating that for me the issue of
artistic integrity is at stake in the color ization 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 Amer ican 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 der i vative 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 seeni appropriate to move in that direction by protecting the ar tistic integrity of black and white motion pictures, and eventually to
expressly provide in our Copyright Act for the comprehensive protection of
the personal dimensiori of the creative process.
Paint Your Wagon - Please!: Colorization,
David J. Kohs
c/o David J. Strawn, P.A.
It would be
"citizen Kane could definitely be colored.
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 black
and-white films. 1
The battle lines are for the most part clearly
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
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 film 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.