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legitimately safeguarded by a properly drafted contract. In the
context of film making, copyright in this country will not normally vest in the director, or any other creative participant
for that matter.53
Rather, it will generally vest in the
production company studio employing the individual participants creating the film. Yet, a director contemplating making a black-and-white film for such an employer might insist
a contractual provision that the employer will never
authorize the creation of a colorized version of the film.
if the employer later finds it economic
ly necessary to later
sell his copyright in the film to a third party, he can transfer
all exclusive rights but the right to prepare a derivative colorized work.54
Yet there exist practical limitations to the contractual
protection of directors' moral rights from colorization.
while "name" directors such as Woody Allen now regularly insist
upon such contractual provisions before directing a black-and
white movie, it is perhaps unreasonable to believe lesser known
directors might be able to negotiate a similar guaranty.
works presently threatened by the colorization process were made long before anyone contemplated the possible colorization of films. It is now too late to "rewrite" these contracts between directors and production companies. Even if it weren't too late, most of these films are now owned by television concerns such as
the Turner Network, which are desperately eager to offer colorized versions. Third, even as to black-and-white films yet
to be made, the longest anyone would be able to thwart the colorization process would be a period equal to the duration of
the copyright in the film itself.
After this period, which is
generally 75 years, the film falls into the public domain and
anyone is free to make a colorized version.55
Ironically, instead of contract, it is copyright, our very body of law which denies recognition to moral rights, which might
eventually prove the death knell of the colorization process.
In order to be subject to copyright protection, a work must first meet some minimal standard of creativity.56 This requirement has traditionally been imposed in order to meet the dual constitutional requirements of "author" and "writings", both of which must be satisfied before copyright protection may be
For this reason, the 1976 Copyright Act only
protects "original works of authorship".58
Thus, in order to be
entitled to copyright protection, the creator of a colorized version of a film must first show that the colorized product is
sufficiently original and varied from the original black-and
white work to itself merit copyright protection.
The level of variation traditionally required in order for a derivative work to support a copyright independent of the original work has been described alternately as "more than merely trivial variation"59 and "substantial variation"60 from the underlying work. Ironically, it is here that colorizers begin to sing two different songs. In response to directors' artistic objections to colorization, proponents of the process argue colorization alters neither the essential character nor
of the underlying black-and-white film.
Yet, when dealing with
the issue of copyrightability of the altered version, colorizers insist colorized versions of films satisfy even the more rigorous "substantial variation" test of originality.
How the courts eventually decide this issue will have a substantial, if not dispositive, effect upon the future of colorization. If the courts decide colorized films do not meet the applicable standard of originality necessary to support independent copyright, colorization of black-and-white films already in the public domain will effectively come to a standstill. With no originality sufficient to support an independent copyright and no copyright remaining in the original underlying work, anyone would be free to duplicate and exploit the colorized version of a public domain film without compensation to the colorizer. Such a decision would prove especially devastating to firms which have already spent hundreds of thousands of dollars to colorize such public domain films.61
Similarly, a finding that colorization lacks sufficient originality to independently sustain copyright would also have a detrimental effect on colorizers, such as Ted Turner, who own the - copyright in the underlying black-and-white film. With no independent copyright in the colorized version, such persons could only protect their colorized work from duplication and exploitation for as long as their copyright in the underlying work survives. Most of these underlying black-and-white works are rapidly nearing the end of their prescribed terms of copyright protection. 62 Given the tremendous costs associated with creating colorized versions of such films, it is doubtful whether new versions would be made in light of this extremely
limited period for exclusive economic exploitation.
Yet the sounder legal argument would seem to be that
colorized versions of films are, in fact, sufficiently original
to support an independent copyright.
Courts have repeatedly
stated that imposing an unduly demanding standard of originality for copyright protection would lead judges to inappropriately
engage in value judgments as to the worth of artistic works.
stated by none other than Justice Holmes:
"It would be a
dangerous undertaking for persons trained only to the law to
constitute themselves final judges of the worth of (artistic
Furthermore, the judicial trend from the "more than merely
trivial variation" to the more demanding "substantial variation"
standard of originality appears to have begun subsequent to the drafting and adoption of the 1976 Copyright Act.64 The trend is
directly contrary to the legislative history of the Act, which reveals Congress intended to incorporate the standard of originality which courts had previously established.65 Prior to
the drafting of the Act, this established judicial standard was
clearly the less demanding "more than merely trivial variation"
Pursuant to case law construing other types of copyrightable
works, courts have held that original combinations arrangements of colors are properly regarded as artistic creations deserving of copyright protection. 66 Additionally, the
tremendous skill and labor involved in the colorization process may properly be considered as evidence of originality.67 Neither
should the fact that colorization is aided by use of
technology mitigate against a finding that colorized versions of films are creative enough to support an independent copyright. 68
Perhaps most important, colorization's worth can most
clearly be shown by the fact that, given the legal right to do
so, other entrepreneurs would surely wish to expropriate and
exploit a colorized work.
As stated by one court:
"[If a work
has) merit and value enough to be the object of piracy, it should also be of sufficient importance to be entitled to protection. "69
Thus, placing all artistic objections aside, sound legal
principals dictate the conclusion colorization does meet the de
minimis originality requirement of copyright, and colorized
versions of films
are independently entitled to copyright
Contrary to this seemingly sound legal analysis, artistic objections to the colorization process have made headway in legal
To date, the United States Copyright Office has refused
to issue certificates of copyright registration for colorized motion pictures. 71 Instead, in response to objections regarding the process, the Copyright office has recently issued a notice of inquiry inviting public comments on the copyrightability of colorized motion pictures.72 While not a requisite to bringing a copyright infringement suit, a certificate of registration does constitute prima facie evidence of the validity of a copyright in any judicial proceeding.73
In spite of the Copyright Office's refusal to register