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marketability of creative works.

Similarly, state and federal unfair competition laws should not be used to grant backdoor recognition to moral rights. Properly construed, this body of law deals not with moral rights, but rather with the prevention of deception and confusion of the public. 119

Given adequate disclaimers, unfair competition law does not prohibit the colorization process. 120 Moral rights are a topic properly addressed under copyright law, and are appropriately considered pursuant to our federal Copyright

In fact, giving backdoor recognition to moral rights via

Act. 121

state unfair competition laws would probably run a foul of

constitutional principles. Pursuant to our Constitution, the power to promulgate laws pertaining to copyright protection resides in Congress. 122 Accordingly, the 1976 Copyright Act

specifically preempts any equivalent state protection for works of authorship falling within the subject matter of copyright. 123 Since Congress clearly understood the nature of moral rights in drafting the Act, 124 its failure to generally protect these rights via copyright is reasonably construed as denying the states the power to do so. 125 Thus, the states constitutionally

lack the power to protect rights Congress has specifically chosen not to recognize pursuant to the Copyright Act. 126

For this reason, any legislation specifically governing

colorization must come at the federal level.

However, the

colorization controversy has not yet been viewed by Congress as

sufficiently compelling to warrant federal legislation. Senator Edward Kennedy recently introduced a bill in Congress patterned after the state fine art statutes. 127

Like the majority of state

statutes, the bill makes no provisions for motion pictures, but rather protects other forms of visual art. 128 Apparently Congress does not, at least as of yet, share the same level of

outrage over colorization as the Hollywood creative community.

Assuming Congress' lack of concern over the colorization process is a conscious one, its refusal to legislate specially in

this area is probably justified.

It is perhaps unfair to treat

motion pictures differently under copyright then other types of

creative works.

Congress has historically made a fundamental

decision to provide for a high degree of marketability of

copyrightable works.

This commitment is exemplified by our

Copyright Act's general absence of protection for moral

rights, 129

as well as its basic "works made for hire" scheme. 130

To treat film directors differently than other artists in an

employment situation should be justified only by extremely

compelling circumstances. 131

As artistically unpalatable as it may be, the colorization process probably doesn't justify departure from our established

scheme of copyright protection. Hollywood movie making is above


all a business. Perhaps even ce than any other type of creative endeavour, film making requires the highest degree of commercial exploitation for its works, as is currently provided by the Copyright Act. 132 Director Steven Spielberg, one of the leading opponents of colorization, regularly demands up to twenty

percent of the gross from his movies.

It is perhaps hypocritical

for him to assert that film making is nothing more than art for

art's sake.

While his artistic arguments to colorization may

have merit, it is unreasonable for him to simply ignore the

tremendous economic motivation behind the process.

An aesthetic tragedy even greater than colorization has

already been allowed to arise in Hollywood.

After Technicolor

films were first developed and produced, it was eventually

discovered the process creates colors that are not permanent in nature. 133

While these early color films can now be restored to their original form, there is little economic incentive to do

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a result, such masterpieces as Raintree County, The

Alamo, Spartacus and It's a MadMad, Mad, Mad World have been allowed to deteriorate, possibly beyond repair. 135

While the studios are probably as much at fault, neither

have directors or other vocal opponents of colorization expressed much of an interest in raising the funds for this sorely needed

restoration of our national culture.

What is worse, unlike

colorization, once lost, the originals of these Technicolor films are forever gone. 136 Ironically, the cost of restoring these films is a mere fraction of the comparative cost of colorizing black-and-white films. 137

In contrast, colorization has created a public demand for

and financial interest in otherwise non-productive older films.

These films previously had a substantially lesser value because

as unfortunate as it may be, many persons, particularly younger ones, simply refuse to view their films in black-and-white. While it has been said that colorization may effectively do away with black-and-white films, 138 it could be argued many of these

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films were already constructively dead.

As much as one may wish

to enlighten the public, Justice Holmes once observed "the taste

of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change."139

Perhaps the plainest indication of the value of colorized versions of films is the public's very desire to view them. 140

Possibly the strongest factor mitigating against preventing colorization by departure from our present scheme of copyright is the fact our existing model has in fact encouraged a high level of creation and dissemination of artistic and literary works. Allowed to continue, it is highly unlikely the colorization

process would do anything to reverse this trend.


economic incentive will continue to fuel the creation of new

films, both in color and, when artist concerns dictate, in black



colorized versions of such films may not be

prevented for all time, 141 black-and-white films will nonetheless

continue to be made.

In England, as in the United States, copyright law does not

generally prohibit the colorization of old films. 142

with this

recognition, the Directors Guild of Great Britain has shifted its

emphasis away from blanket rejection of the process.

Instead, it

has attempted, and with some success, to reach compromise

agreements regarding colorized versions of English films.


Guild is essentially seeking to protect at least a limited number

of black-and-white films designated as classics, films including

Brief Encounter, Rebecca and The Third Man. 143

It has already persuaded the BBC not to air any colorized versions of these selected films. 144 Channel 4 has gone even further by agreeing not to air any colorized film. 145

Such an approach is reasonable in that it recognizes not all films made in the black-and-white era are what we could really

consider to be "classics".

Of course, under any format, this

type of an agreement would require some party to determine just which films fall into which group. Such a judgment as to the

relative merits of artistic works has long been condemned, at

least under notions of copyright. 146

This judgment by a few

would essentially dictate what the rest of the public would be

able to view.

Still, as this type of an agreement recognizes,

the image of a colorized version of Citizen Kane may indeed be

more disturbing than that of a colorized 42nd Street.

Regardless, it seems this type of a compromise would appear

unlikely in our country. Unlike the relatively few British national television channels, our country offers a wide array of

local, cable and satellite sources to the American viewer.


of these, such as the Turner Broadcasting System, are owned by

parties who already have a huge investment in the colorization


Ted Turner has already stated "I would colorize

Casablanca just for controversy", and indeed he already has. 147 It is unlikely that Turner, or anyone else similarly situated, would voluntarily forgo a legal right to air colorized versions

of films like Citizen Kane.

Furthermore, such agreements would not prevent the creation

of such colorized films, but merely hamper the television airing

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