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colorized films, potential pirates have been reluctant to test in court the validity of the colorizers' copyright claim. Although colorized versions of public domain movies have already been repeatedly broadcast on television, there is not yet one reported instance of expropriation and commercial exploitation of any of these films. This is in spite of the fact that such an act would be no more difficult than videotaping and making copies of any scheduled commercial broadcast. Perhaps potential film pirates have given more thought to the validity of the colorization industry's copyright argument than has the United States Copyright Office.
Some Non-Copyright Alternatives
The Rest of the Intellectual Property Law Arsenal
In light of the Copyright Act's general absence of protection for moral rights, it has been urged that an aggrieved party might be able to look to other areas of intellectual property law for vindication of these same rights.74 Three specific branches of this body of law shall be briefly examined, and their respective relevance to the specific issue of colorization considered.
The common law recognizes a right of publicity, which protects the proprietary interest of an individual in the commercial exploitation of his act, name, or likeness.75 This right stems from the tort law of privacy, and is now codified in many states.76 Essentially, the cause of action arises when a person's name or likeness is commercially appropriated without
that person's consent. At least one commentator has said this right of publicity will inevitably be violated when producers of colorized films use the names and likenesses of actors and directors in conjunction with the commercial use of such a film.78 Such an argument is simplistic and ignores the commercial realities of film making.
While proprietors of colorized films do in fact make commercial use of the names and likenesses of actors and directors, this is not necessarily done without consent. Standard in any employment contract between original film producers and actors or directors are clauses permitting the producer to use commercially the latter's names and likenesses.79 This right extends to subsequent adaptations and derivative uses of the motion picture by the original or successor copyright owners. 80 Yet, it is argued, upon expiration of the original copyright into the public domain, a colorizer may no longer exercise this contractual right to use these names and likenesses.81
This argument misunderstands the nature of the public domain Public domain deals solely with the expiration of any of the exclusive copyrights formally held by a copyright owner. 82 It does nothing to alter any contractual relations previously existing between or among parties public domain does not give back to actors and directors what they contracted away prior to expiration of the work into the public domain.83
Even if an actor or director had the foresight and the leverage to contract with the original film producer to never use
or authorize use of his name or likeness in conjunction with a colorized version of the film, the provision would be of limited benefit. Unlike contract rights, rights of publicity are personal and sustainable only during the lifetime of the actor or director.84
Upon the actor's or director's death, any other
party would be able to make free use of his name and likeness, in spite of any contractual provisions to the contrary. Thus, the right of publicity is, at best, of limited utility to actors and directors in their war against colorization.
It has similarly been suggested that a director aggrieved by the colorization process might be able to assert a action pursuant to our federal law of unfair competition.85 Section 43(a) of the Lanham Act protects the public from the false designation of the origin of goods or services, as well as false descriptions or representations of the 86 same. By presenting a colorized work, at least in part, as that of the original director's, a colorizer might be said to be misrepresenting the origin of the colorized film. In essence, the director is presented to the public as the creator of a work that is not really his own, possibly subjecting him to criticism for work he has not in fact done.88
At first blush, Lanham protection has a certain appeal. fact, the court in Gilliam stated in dicta that a "mutilated" version of plaintiff's work, if accompanied by plaintiff's name, constituted a violation of Section 43(a).89 Yet the Lanham Act does not protect moral rights. Like state unfair competition laws, the Act's purpose is merely to protect the public against
Any Lanham danger experienced by a colorizer could easily be remedied by an effective disclaimer, negating any inference that the director of the original film is in any way connected with the colorized version.91
Furthermore, absent any contractual obligation to the contrary, the colorizer could simply decide not to include the director's name in the credits of the colorized film. The right of paternity, meaning the right to have one's work attributed to himself, is a moral right not recognized by our Copyright Act.92 Thus, like rights of publicity, Section 43(a) of the Lanham Act provides little protection for a director aggrieved by the colorization process.
A third distinct area of intellectual property law which bears upon the alteration of creative works is state legislation for the protection of the fine arts. Four states now prevent the physical alteration, mutilation, or destruction of certain works of fine art.93 This protection is distinct and beyond that afforded by copyright, which does not concern the material object in which a work is embodied. 94 By preserving the integrity of an artist's work even after the artist has sold the work and has no further economic interest in the same, these statutes implicitly recognize moral rights.95
Only one of these states, Massachusetts, defines "fine art" to include motion pictures.96
Yet even here, the mechanics of
the colorization process still allow the colorizer to ply his trade. The colorization process begins with the transfer of the original black-and-white film to a videotape.
It is only this
copy which is altered, the original film remains unchanged. Thus, there is no defacement of an original work of art as required by the act.97
Even if alteration of the original film were necessary, the Massachusetts statute would still fail to prevent most acts of colorization. Like other states, Massachusetts does not protect artistic works created in an employment relationship.98 This necessarily excludes almost every feature length film currently threatened by the colorization process.99 In spite of Massachusetts' apparent inclusion of motion pictures, these statutes are really designed to protect generally unduplicated forms of fine visual art paintings and sculptural works for
example. For this reason,
even the Massachusetts statute
provides little, if any, protection from colorization.
Coping with Colorization Let's Not Cut Off Ted's Arm
As we have seen, the European model of copyright protection, by recognizing moral rights, specifically acknowledges the unique relationship between an author and his work, and of the two in relation to society in general.100 In addition to traditional copyright protection for the economic rights of authors and artists, recognition of moral rights constitutes an additional reward to these creative persons for their works.
In contrast, our American model of copyright protection, by generally failing to recognize moral rights, limits the type of benefits conferred to authors and artists in acknowledgment of