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Statement of Paul Goldstein
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.
country's intellectual property systems.
The present controversy over colorization of
black-and-white motion pictures implicates three
traditional copyright principles:
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
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
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
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.
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
evident, copyright will protect the lowest, most
common, works alongside the most exalted.
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
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.
At the very core of the
current debate over the colorization of black-and-white
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
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
based on a black-and-white motion picture include the
right to colorize the motion picture?
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.
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
require, at the least, that the distributor of a
colorized motion picture clearly label the work as a