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Statement of Paul Goldstein
Stanford University. I am pleased to be here today to testify on the intellectual property aspects of motion
With your permission, I would
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.
these questions when it attends most closely to the principles that have traditionally shaped this
protection to colorized versions of black-and-white
motion pictures; the principle of consumer choice
1. Authorship. The concept of authorship lies at the heart of copyright law. Copyright encourages authors to invest their time and money in making
the need to draw on the work of earlier authors.
to take two examples, the motion pictures, The Maltese
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
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
picture itself the product of authorship?
I see no present reason to delay or deny
registration on this largely speculative ground. Under the existing colorization process, authorship clearly appears in the final product. However, the prospect
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
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
concern over colorization is less pressing. While there is only one Sistine Ceiling which will be ruined or restored depending upon one's point of view -- 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
preservation. Copyright law, too, secures the author's interest in authenticity. By giving copyright owners control over their works including the exclusive 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 colorization under tightly controlled conditions, or to
impose no conditions at all.
But, what of copyrighted works already created,
and contracts already entered into, before anyone contemplated the colorization process? Does a contract granting the general right to make derivative works
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 between contracting parties includes an obligation respecting authenticity and requires, at the least,
require, at the least, that the distributor of a
colorized motion picture clearly label the work as a