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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 mor al 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 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.

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 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
even after the transfer of the said rights, the author
shall have the right to claim authorship of the work
and to object to any distortion, mutilation, or other
modification of, or other derogatory action in relation
to, the said work, which would be prejudicial to his
honor or reputation.

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,
Copyright and the Search for Moral Rights.

David J. Kohs

c/o David J. Strawn, P.A.
Suite 602
100 W. Lucerne Circle
Orlando, FL 32801
(305) 849-0544

It would be

"citizen Kane could definitely be colored.
easier on the eye."

Brian Holmes, director of creative
services for Colorization, Inc.

"They have the sensitivity of wallpaper."

film director Richard Brooks, in
response to the argument that
attempts to interfere with the
colorization process amount to
censorship.

"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

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 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.

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