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as the "author" and preeminent personality inscribed in a film.35 Pursuant to the auteur view, the directorial contribution is viewed as independent of and dominant to the film's narrative. The camera is a stylus, and the movie in essence is a mirror expression of the director's personality. It is not surprising then that a country such as France, birthplace of the New Wave movement, recognizes a personal right of the director to prevent the unauthorized alteration of his film.

While such a system of enforcement of non-economic moral rights via copyright law may be satisfying from an artistic viewpoint, it would never meet the demands of the commercial marketplace if enforced without restrictions. Due to the scanning, panning and editing functions which are usually necessary to present a theatrical film in television format, it might be possible for a single unreasonable director or film editor, by personally invoking his moral rights, to prevent indefinitely the television broadcast of a film. For this reason, most countries recognizing moral rights limit in some fashion the type of alterations to which an author or creative contributor may object. Thus, the French judiciary will allow, if not otherwise violative of copyright, reasonable alterations that do not distort the spirit of the creator's work, particularly where the creator's work is a contribution to a collective work.36 Similarly, the Berne Convention specifically limits the types of alterations to a work to which individual creative contributors may object.37

Thus, in most droit d'auteur countries, only certain

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alterations meeting some pertinent standard of reasonableness may be made without offending the moral right.38 While there is not yet any caselaw on point, it would seem that colorization, without at least the director's consent, would indeed violate the moral right. The process is not one of the established "reasonable" types of alterations recognized as permissible under moral rights schemes, and could be fairly described as altering the spirit of the original black-and-white work.

Backdooring Moral Rights

Some Copyright Alternatives

With one notable exception, our 1976 Copyright Act is completely devoid of any recognition for the moral rights of authors or artists. This limited exception deals with recognition of the moral rights of songwriters. While the Act grants to a musician the right to make, perform and record his own version of a songwriter's original musical work, he is subject to certain limitations with respect to the songwriter's moral rights. The Copyright Act specifically provides that the new version may not change the basic melody or fundamental character of the original song without the express consent of the copyright owner. 39 Thus, while the Act otherwise recognizes the economic rights of the songwriter through an elaborate forced royalty scheme, it additionally recognizes his moral rights by ensuring that any remake of his work may not substantially alter it.40

It is tempting to draw an analogy to this recognition afforded the moral rights of songwriters and assert that film

directors should similarly be able to prevent the unauthorized colorization of their work. There is, however, one critical distinction in the Copyright Act's respective protection afforded these distinct forms of authorship which obviates this otherwise compelling argument. In the case of motion pictures, a copyright owner may see to it that, at least for the duration of his copyright, no other version of his film is ever made. This is because only he holds the exclusive and absolute right to make derivative versions of the original film.41

In contrast, the drafters of the Copyright Act saw fit not to grant this exclusive right to the owner of copyright in a musical composition. Fearful that any greater protection would give the songwriter an unjustified monopoly in the performance and recording of his original work, Congress provided that any other persons may, pursuant to a compulsory license scheme, do either of these acts upon payment of a statutory royalty to the owner of copyright in the original musical work. 42 Thus, being unable to prevent for any period of time the performance or recording of his original musical work by others, it makes sense to at least ensure the songwriter that any such derivative works will not make a travesty of his original creation.43 When viewed in this light, the Act's recognition of the moral rights of songwriters but not film directors appears, at the very least, rational.

In light of the almost complete statutory absence of protection for moral rights of authors and artists, American courts have sometimes strained to make factual interpretations

leading to an unspoken recognition of these same moral rights. One such example is Gilliam v. American Broadcasting Companies, Inc., 44 a case involving the American broadcast of the popular Monty Python's Flying Circus television series. In Gilliam, Plaintiff writers and performers had previously struck a deal with the BBC for British broadcast of their original shows.45 The BBC, pursuant to this agreement, additionally licensed the overseas broadcast of the series, specifically granting to licensees the right to edit the programs for commercials and applicable censorship purposes. 46 Interestingly, the agreement did not specifically grant this same right to the BBC for its own domestic broadcast of the Python shows.47

Plaintiffs subsequently brought an action to enjoin what it deemed to be an unauthorized mutilated American broadcast of its

original work. 48 The court acknowledged that it was unclear under the agreement whether it was the Monty Python group or the BBC which owned the copyright in the completed programs produced by the BBC.49 Nonetheless, the court noted that nothing in the agreement specifically entitled the BBC to alter a program once it had been recorded, and held the alterations for American television exceeded the scope of any license the BBC was entitled to grant.50

The Gillian court determined it was essentially irrelevant whether the agreement merely created a limited license in the BBC, or in fact gave to the BBC all the exclusive rights associated with copyright, save the right to alter a previously recorded program. 51 Yet this distinction is in fact crucial to

the correct outcome of the case. If the agreement in fact granted merely a limited license of broadcast to the BBC, then it is reasonable to conclude the BBC had no right to authorize edited rebroadcast of the shows absent specific mention of this right in the contract. However, if the agreement in fact

conveyed copyright to the BBC, then it is just as reasonable to require the contract spell out any specific rights in the work reserved by Plaintiffs.

In its haste to grant de facto recognition to Plaintiffs' moral rights, the Gilliam court, by giving a strained interpretation to an admittedly ambiguous contract, sidestepped fundamental limitations imposed by our copyright law. While expressly recognizing that American copyright law provides no cause of action for protection of moral, rather than economic, rights of authors, the court went on to state:

"Our resolution of these technical arguments serves to reinforce our initial inclination that the copyright law should be used to recognize the important role of the artist in our society and the need to encourage production and dissemination of artistic works by providing adequate legal protection for one who submits his work to the public.... [C]ourts have long granted relief for misrepresentation of an artist's work by relying on theories outside the statutory law of copyright, such as contract law. [citations omitted] Although such decisions are clothed in terms of proprietary right in one's creation, they also properly vindicate the author's personal right to prevent the presentation of his work to the public in distorted form."52

While the Gilliam decision does sound quite like improper judicial legislation for the protection of moral rights, it does raise the important point that certain moral rights might be

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