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

on

Colorization of Motion Pictures

Mr. Chairman, members of the Subcommittee.

My

name is Paul Goldstein. I am Professor of Law at Stanford University. I am pleased to be here today to testify on the intellectual property aspects of motion picture colorization.

With your permission, I would

I

like to submit my prepared statement for the record and to summarize its contents in my oral testimony. 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. The past several years have demonstrated, and the recent formation of your Subcommittee attests, that new information technologies often raise hard questions about the proper role of intellectual property law. If anything, the experience of these past years

demonstrates that Congress responds most effectively to these questions when it attends most closely to the principles that have traditionally shaped this 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, principle of authorship supports the grant of copyright

the

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

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original works in

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 black

and-white motion picture.

But is the colorized motion

picture itself the product of authorship?

Under

I see no present reason to delay or deny registration on this largely speculative ground. 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. 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 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 blackand-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

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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 motion pictures lies a concern for authenticity. Conceptually, the concern over colorization differs little from the concern, recently expressed in some quarters, that the restoration of the Sistine Ceiling restore it to its authentic form. To be sure, the

concern over colorization is less pressing.

there is only one Sistine Ceiling

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While

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

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right to reproduce and prepare derivative works based on them

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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? 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 between contracting parties includes an obligation respecting authenticity and requires, at the least, that the colorizer label his product as a colorized version of a black-and-white original.

What of works in which copyright has expired? Tort law has traditionally taken authenticity as one of its objects. Just to note one example, the Federal Trademark Act, which prohibits false representations respecting goods and services, may be construed to require, at the least, that the distributor of a colorized motion picture clearly label the work as a

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