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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 or studio employing the individual participants creating the film. Yet, a director contemplating making a black-and-white film for such an employer might insist upon a contractual provision that the employer will never authorize the creation of a colorized version of the film. Even if the employer later finds it economically 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
Yet there exist practical limitations to the contractual protection of directors' moral rights from colorization. First, while "name" directors such as Woody Allen now regularly insist upon such contractual provisions before directing a black-andwhite movie, it is perhaps unreasonable to believe lesser known directors might be able to negotiate a similar guaranty. Second, 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 afforded.57 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-andwhite 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 essence 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. As 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 works]."63
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" test.
Pursuant to case law construing other types of copyrightable works, courts have held that original combinations or 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
should the fact that colorization is aided by use of a new 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 protection.70
Contrary to this seemingly sound legal analysis, artistic objections to the colorization process have made headway in legal forums. 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