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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 Act. 121 In fact, giving backdoor recognition to moral rights via state unfair competition laws would probably run afoul 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

Apparently

Like the majority of state statutes, the bill makes no provisions for motion pictures, but rather protects other forms of visual art.128 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 more 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. 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

132

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 134

so.

As a result, such masterpieces as Raintree County, The Alamo, Spartacus and It's a Mad, Mad, 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

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. Sufficient economic incentive will continue to fuel the creation of new films, both in color and, when artist concerns dictate, in blackand-white. While 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. The 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, least under notions of copyright.146

at

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. Some of these, such as the Turner Broadcasting System, are owned by parties who already have a huge investment in the colorization industry. 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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