55.

See supra notes 20-23 and accompanying text.

56.

See The Trademark Cases, 100 U.S. 82 (1879).

et.al., 191 F.2d 99 (2d Cir. 1951); Franklin Mint Corp. v.

National Wildlife Art Exchange, Inc., 575 F.2d 62 (3d Cir. 1978),

cert. denied, 439 U.S. 880 (1978).

60.

L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.

1976); Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983);

Sherry Manufacturing Co., Inc. v. Towel King of Florida, Inc.,

753 F.2d 1565 (11th Cir. 1985).

61.

See supra note 8 and accompanying text.

62.

Most of these underlying films were first published and

afforded copyright protection pursuant to the old (pre-1976)

Copyright Statutes, which provided for no longer than 56 years of

copyright protection.

The 1976 Act recognizes continued

copyright protection for such works, but for no longer than this

original 56 year period. See supra note 22 and accompanying text.

63. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239

(1903).

64.

See supra 59-60 and accompanying text.

65.

H. Rep. No. 1476, 94th Cong., 2d Sess., reprinted in

1976 U.S. Code Cong., & Ad. News 5664.

66.

See e.g., Pantone, Inc. v. Friedman, Inc., 294 F.Supp.

545 (S.D.N.Y. 1968) (arrangement of colors in color matching

booklet held copyrightable); Sargent v. American Greetings Corp.,

588 F.Supp. 912 (N.D. Ohio 1984). (coloring in of a pencil sketch

held to withstand defendant's motion for summary judgment). See

also M. Nimmer, Nimmer on Copyright 8 32 (1986).

67.

See e.g., Alva Studios, Inc. v. Winninger, 177 F.Supp.

265 (S.D.N.Y. 1959) (skill and originality in producing a smaller

but nearly exact scale reproduction of a sculpture properly

considered in finding valid copyright).

68. This issue was early put to rest by the U.S. Supreme

Court in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53

(1884), which found a photograph of poet Oscar Wilde was properly

subject to copyright protection, in spite of the fact it was a

mechanically aided reproduction. Id. at 59. See also Jeweler's

Circular v. Keystone, 274 F. 932 (S.D.N.Y. 1921) (all photographs

are copyrightable).

Thus, courts implicitly recognize that

technological aids do not negate originality, but rather

facilitate an author in expressing his creativity.

69. Henderson v. Tompkins, 60 F. 758 (D.Mass 1894).

70.

A famous copyright case dealing with a process

factually similar to colorization and reaching this same result

is Alfred Bell & Co. Ltd. v. Catalda Fine Arts, Inc. et.al., 74

F.Supp. 973 (S.D.N.Y. 1947), aff'd at 191 F.2d 99 (2d Cir. 1951).

In Bell, plaintiff used mezzotint, an elaborate and tedious

photoengraving method, to create reproductions of old master oil

paintings in the public domain.

Id. at 974-75. While the

process required much more skill and patience than traditional

photographic techniques, defendants' relied on the fact the

finished products were almost identical reproductions of the

underlying works and argued plaintiff's versions lacked

sufficient originality to support an independent copyright. Id.

at 975-76. The court rejected defendants' argument, relying on

the extensive skill and time required by the mezzotint process.

Id. at 975. Noting that no two such engravers could ever produce

exactly identical interpretations of the same oil painting, the

court found plaintiff's versions contained more than trivial

variations and were sufficiently original to support independent

copyrights. Id. at 974-75.

Nearly an identical line of

reasoning can be used in support of the colorization process.

But see L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.

1976), cert. denied, 427 U.S. 857 (1976) (questioning certain of

the assumptions made by Bell regarding originality).

71.

Pursuant to 17 U.S.c. 8 410(b), the Register of

Copyrights' refusal to issue a certificate of copyright

registration constitutes the Copyright Office's belief that the

subject matter deposited does not comprise copyrightable subject

matter. Id.

72. 51 Fed. Reg. 32,665 (1986).

73.

See 17 U.S.C. 8 410(c), 17 U.S.C. 8 411(a).

74.

See, e.g., supra note 52 and accompanying text.

75.

Zacchini v. Scripps-Howard Broadcasting Company, 433

U.S. 562 (1977).

76. See W Prosser & W. Keeton, Law of Torts 851 (5th ed.

1984). A typical state statute is Cal. Civ. Code 8 3344(a) (West

Supp. 1986), which provides in relevant portion:

Any person who knowingly uses another's name, voice,

signature, photograph, or likeness, in any manner, on

or in products, merchandise, or goods, or for purposes

of advertising or selling, or soliciting purchases of,

products, merchandise, goods or services, without such