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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. Black-and-white
This argument is not necessarily true.
classics such as The Red Badge of Courage, High Noon, and A Place in the Sun were filmed at a time color films were both technologically and commercially practical.102 Similarly, many 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 chosen 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 soon as technology permitted, the late D.W. 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 might 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 the creative participants individually, and not a common employer, who enforce such moral rights.
While it might seem reasonable to allow individual creative participants to enforce their moral rights, questions would 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 a value judgment has traditionally been considered not to have a place in copyright
If construed as preventing such common and "necessary" forms 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 or, as in Gilliam, 117 contractual provisions, might have 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 artistically objectionable than the colorization process.118 Our system of copyright protection presupposes that a high level of permissable commercial exploitation of creative works is 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