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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

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

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Essentially, the cause of action arises, when a.

person's name

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

successor copyright


Yet, it is argued, upon expiration of the original

copyright into the public domain, a colorizer may no longer

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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

cause of

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

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


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

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provides little, if any, protection from colorization.

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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

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