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their work. 101

While economic rewards

are provided these

persons, these are viewed only as

a necessary step in ensuring

society ultimately benefits by the disclosure of creative works.

Thus, economic protection of authors and artists, which is

limited in duration, is not so much for the personal benefit of

these creative persons, but for benefit society in general.

This fundamental difference in these respective systems of

copyright is brought to the forefront by the colorization

controversy.

To a film director, black-and-white is more than

just a medium, but is rather a part of the very message of the

film. Richard Brooks, who directed In Cold Blood, has observed: "When anyone's afraid, it's in black and white, not color. It

should not be pretty.

It should be stark.

The footsteps that

come from a candy-colored spectrum are not the same as footsteps

that come in the dark."

Similarly, Orson Wells, director of the

black-and-white classic Citizen Kane, has said that no truly

great performance has ever been filmed on color film.

Whether or not these artistic declarations are true, our

system of copyright fails to protect an artist's creative, as

opposed to economic, interests.

When economic rights collide

with creative choice, the latter necessarily must give way.

At

least in regard to protection of the oldest black-and-white

films, proponents of colorization have attempted to justify this

result on the basis there is no real creative choice to protect.

They claim that film technology had not yet developed a color

alternative at the time most of these films were made, therefore

directors shot in black-and-white out of necessity and not by choice. Given color technology, it is said, these directors would have originally chosen to shoot their movies on color film.

This argument is not necessarily true. Black-and-white

classics such as The Red Badge of Courage, High Noon, and A Place

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movies are yet today filmed in black-and-white, in recognition of

the uniqueness and character of the medium. It can not be categorically stated that, given a well developed color alternative, the earliest movie makers would have always en

to film in color.

Yet the colorization process is not entirely without

parallel in the history of movie making.

Years before true color

film was developed, certain theatrical releases would be uniformly tinted with a colored dye for editorial effect. 103 Other movie makers went as far as to hand paint, frame by frame, their otherwise black-and-white films prior to release. 104 Similarly, as as technology permitted, the late D.w.

soon

Griffith began dubbing sound versions of his early silent works. 105

However, unlike the present colorization controversy, these earlier alterations were generally performed with the consent of the original director.

Colorizers additionally justify their art on the ground that

the original black-and-white work will continue to exist, it

being merely a copy of that work which is altered by the colorization process. 106 Yet this argument may be merely

academic.

As a practical matter, these films will be principally accessible on television and in video cassette in the form they

are marketed.

Given the tremendous financial investment required

for colorization, it is likely to be the colored version which

will, perhaps exclusively, be marketed.

The public cannot go

into the archive to see the original black-and-white print.

As a

result, original black-and-white works night indeed be

effectively done away with by colorization. 107

While recognition of moral rights to prevent the colorization of existing black-and-white films has clear artistic

appeal, it might actually ultimately discourage the creation and dissemination of creative works generally. Copyright in most

motion pictures, pursuant to the American model of protection, vests initially in an "employer".108 This employer subsequently has the sole power to authorize particular alterations of the

original copyrighted work. 109

In contrast, moral rights under

the European model of copyright vest individually in each of the creative participants to the film making process.110 Thus, it is

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inevitably arise as to just which of these participants should be

allowed to do so.

While a director might be allowed to thwart

the colorization process, what about the right of the

cinematographer to do so? What about the moral rights of an actor who appeared in the original black-and-white version, or

the designer who created the original set?

An impossible

situation might arise should individual creative participants

split among themselves in regard to the propriety of a colorized version of their original work.111

Furthermore, recognition of the moral right to prevent

colorization would be difficult to separate from the moral right to prevent other forms of alteration to a film. Scanning, panning and editing are common forms of alteration which are

arguably commercially necessary for the television broadcast of

many films.

Would recognition of the moral right also include

the right of individual creative participants to object to and

prevent these less offensive forms of alteration?

The Berne Convention, by regulating throughout the European

community the assertion of moral rights, attempts to deal with

this problem. 112

The Convention specifically defines and limits

the types of alterations which creative contributors may object

to. 113

Similarly, the French judiciary will refuse to prevent alterations to original works which it considers "reasonable" in nature. 114

Nonetheless, these methods are cumbersome and necessarily uncertain in application. To deem an alteration

"reasonable" or "unreasonable" is akin to judging the intrinsic merit of the original work. Such value judgment has traditionally been considered not to have a place in copyright

a

law. 115

If construed as preventing such common and "necessary" forns

of alteration as panning, scanning and editing, recognition of moral rights might ultimately discourage the very creation of artistic works. Knowing that he may never make any alterations to a film for display in media other than first run movie houses,

a movie producer might never have sufficient economic incentive

to even create such a work.

With the growing importance of the

cable television and video cassette markets, such a situation is

much more than a mere possibility. It is unlikely that even the most ardent opponent of colorization would favor such a result.

If moral rights are to be recognized, it should be by forthright amendment of our copyright law. To construe our existing Copyright Act to prohibit colorization would be reading

provisions into the Act which simply don't exist.

While our

Copyright Act does not generally recognize or protect moral rights, it nonetheless provides a consistent and rational scheme of protection for creative works. 116 Giving backdoor recognition to moral rights through strained interpretations of copyright law

in Gilliam, 117 contractual provisions, might have

or,

as

ramifications far beyond the mere prevention of colorization of black-and-white films. For example, artists and authors

associated with other media might similarly invoke their moral

rights to prevent alterations to their works which are much less

Our artistically objectionable than the colorization process. 118

system of copyright protection presupposes that a high level of permissable commercial exploitation of creative works is

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desirable.

Relatively modest alterations to creative works are

often required by this commercial process. Departure from our present scheme of copyright protection, without comprehensive

consideration of all the possible ramifications of the same, might have serious consequences regarding the general

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