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colorized films, potential pirates have been reluctant to test in
court the validity of the colorizers' copyright claim.
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
Some Non-Copyright Alternatives -
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
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
Essentially, the cause of action arises, when a.
or likeness is commercially appropriated without that person's consent.77
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
Yet, it is argued, upon expiration of the original
copyright into the public domain, a colorizer may no longer
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
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 same. 86 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. 87 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 Gillian 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 deception. 90
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 publicity, Section 43(a) of the Lanham Act
provides little protection for
a director aggrieved by the
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
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
required by the act.97
Even if alteration of the original film were necessary,
Massachusetts statute would still fail to prevent most acts of
Like other states, Massachusetts does not protect
artistic works created in an employment relationship.9
This necessarily excludes almost every feature length film currently threatened by the colorization process.99 In spite of
provides little, if any, protection from colorization.
Coping with Colorization Let's Not Cut Off Ted's Arm
to Spite Our Face.
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