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Statement of Paul Goldstein
Stella W. and Ira S. Lillick Professor of Law

Stanford University

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like to submit my prepared statement for the record and to summarize its contents in my oral testimony. I

should add that in testifying before you today I am

speaking strictly for myself and not on behalf, or to my knowledge in the interest, of any present client.

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country's intellectual property systems.

The present controversy over colorization of

black-and-white motion pictures implicates three

traditional copyright principles:

authorship, consumer

choice, and producer control.

In my judgment, the

principle of authorship supports the grant of copyright protection to colorized versions of black-and-white motion pictures; the principle of consumer choice

further supports the grant of protection; and the principle of producer control adequately secures producers against the unauthorized colorization of black-and-white motion pictures. My testimony will touch briefly on each of these three principles.

1. Authorship. The concept of authorship lies at the heart of copyright law. Copyright encourages authors to invest their time and money in making original contributions by promising them property rights in the resulting works. And copyright recognizes that authorship is inevitably a continuous phenomenon. No author, however creative, can escape the need to draw on the work of earlier authors. Just

to take two examples, the motion pictures, The Maltese

Falcon and It's A Wonderful Life

original works in

their own right draw part of their genius from earlier copyrighted works.

Copyright recognizes that even a midget standing

on the shoulders of a giant can see farther than the

giant.

Copyright rewards not only the creator of the

first work, but also the creators of the successive

works that build on it. In a strictly legal sense, colcrized versions of black-and-white motion pictures

are no different from motion picture versions of stories and novels. And under traditional principles

they are no less entitled to copyright protection.

Authorship in copyright has traditionally presupposed the impress of human intelligence and sensibility on the final product. As I understand the

colorization process, considerable artistic judgment

and skill go into the colorization of a black-and-white

motion picture.

Nonetheless, computer programs may

some day be capable of colorizing black-and-white films automatically, without the intervention of human skill and judgment. Surely, authorship will reside at some level in the efforts that go into devising the computer program capable of automatically colorizing a blackand-white motion picture. But is the colorized motion

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and the question go to the very heart of copyright protection generally, and not just copyright protection

for colorized motion pictures.

But, these are

considerations for the future, not the present.

The

Copyright office should be applauded for so early, and

so effectively, alerting interested parties to the

possible problems raised by copyright protection for

colorized versions in its 20 August Notice of Inquiry

on the subject.

(My response to the Copyright office's

Notice of Inquiry is attached as an appendix.)

2. Consumer Choice. Copyright law has consistently refused to play the role of cultural arbiter. So long as some degree of authorship is

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evident, copyright will protect the lowest, most

common, works alongside the most exalted.

As Justice

Holmes observed in a decision giving copyright

protection to circus posters, "It would be a dangerous undertaking for persons trained only to the law to

constitute themselves final judges of the worth of

pictorial illustrations, outside of the narrowest and

most obvious limits."

This prudent rule rests in part

on first amendment traditions that caution against

discriminating on the basis of transient or elitist

notions of artistic worth.

More fundamentally, though,

this rule rests on the principle that the purpose of

copyright is not to reward authors as an end in itself,

but rather is to encourage authors to produce those

works that consumers want.

The colorization of black

and-white motion pictures serves this purpose well,

making classic motion pictures accessible for the first

time to audiences

their tastes shaped by a world of

living color

that would otherwise be disinclined to

view them and, because of market forces, might never be

able to see these films in any form on television.

3.

Producer Control.

At the very core of the

current debate over the colorization of black-and-white

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colorized and black-and-white versions can exist

side by side.

But this difference raises the more

subtle problem of the original author's possible

interest in seeing that only the original, authentic

version of his work is available, unclouded by other

works that may distort his artistic vision.

Authenticity is an important and highly prized cultural value, one that public policy in this country

has implemented through such measures as landmark

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right to reproduce and prepare derivative works based on them copyright effectively gives motion picture

producers the right to stop others from colorizing their works or, if the producer chooses, to authorize

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based on a black-and-white motion picture include the

right to colorize the motion picture?

The question,

though important, is not one for Congress to answer.

Rather it is to be answered by courts interpreting

contracts under the canons of state law.

These

decisions will inevitably turn on the facts of a particular case. But it would not be surprising to see

a court hold that the implied obligation of good faith

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require, at the least, that the distributor of a

colorized motion picture clearly label the work as a

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