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prepare and distribute derivative works based upon the original
copyrighted work. 15
This right is an important and valuable
right to the copyright owner of the existing black-and-white film. It permits him to not only prevent the unauthorized duplication and distribution of the original film, but also to prevent the unauthorized making and distribution of a derivative,
i.e. colorized, version of the same film.
Thus, where the
"author" of such a film is in possession of the copyright, no
colorization problem exists because a colorized version of the film may not be made without his permission. 16
Still, the Copyright Act provides little protection to the most vocal opponents of colorization namely, directors, actors
and other creative participants to the movie making process.
While copyright usually initially vests in what we would
ordinarily consider the "author" of a work, i.e. the writer of a
novel or the painter of a painting, motion pictures are generally
deemed "works make for hire" under the Act, with copyright
vesting in the "employer" for whom the work was prepared. 17
the case of motion pictures, this employer is usually a
production company or studio which distributes the film. While individual contributions such as the mise en scene or "style" of the director, cinematographer and film editor, are protected by copyright, this copyright vests in the "employer" and not the
individual creative participants to the film making process.
Thus, except in the rare instance where a director also produces
a film and is otherwise an "employer" for purposes of the Copyright Act, 18 the right to exploit his creative contribution, or object to an alteration of the same, is not his to assert. 19
Furthermore, the copyright owner, usually a production company or major studio, has economic interests which are generally adverse to the director's interest in preserving the artistic integrity
of his work.
Even where a director plies his trade for a sympathetic
employer who is unwilling to authorize the colorization of the
finished work, the limited duration of protection afforded by
copyright ensures that any other person may eventually create a colorized version of the original film. Under the Copyright Act, the maximum duration of protection for most types of work does not exceed 75 years. 20 Prior to the 1976 Act, this term of
protection was shorter, generally not exceeding 56 years.21
result, after the expiration of this prescribed period of time, a
copyrighted work drops into the public domain, and anyone can exercise any of the formally "exclusive" rights in relation to
Thus, after this time colorizers can, and do, color
existing black-and-white films without obtaining anyone's
By recognizing only economic rights, which may be
exploited for only a limited amount of time, the Copyright Act
essentially assures that a colorized version of a black-and-white
film may eventually be made.
In direct contrast to the our Copyright Act are national
schemes of protection of intellectual works which recognize the
droit d'auteur, or author's right.
This form of protection
recognizes and protects both economic and moral rights of the
This distinction is perhaps most clearly expressed by French copyright law which provides in relevant part:
The author of an intellectual work shall, by the mere fact of its creation, enjoy an incorporeal property right in the work, effective against all persons. This right includes attributes of intellectual or moral nature as well as attributes of an economic nature as determined by this law.24
The precise scope of these moral rights vary in part among jurisdictions which recognize and protect them, but the doctrine
generally encompasses three major components: the right of disclosure, the right of paternity, and the right of integrity.2
25 The right of disclosure and its corollary, the right to refuse to disclose, are manifestations of the belief that the
creator is the sole judge of when a work is first ready for
public disclosure. Pursuant to this theory, it is only the author who can posses any rights in an uncompleted work. 26 Prior
to circulation of his work, the author retains the sole right to
determine both the completed form of the work, as well as the time public circulation will commence. Similarly, the second component of moral right, the right of paternity, recognizes the author's unique relationship to his work. Paternity safeguards a creator's right to compel recognition for his work, and additionally prevents the recognition of anyone else as the creator. Conversely, the right additionally protects an author in the event someone falsely attributes another's work to him.27
Most pertinent to the colorization issue is the third
component of moral right - the right of integrity.
perhaps the most powerful of all the moral rights in that it
empowers the author to prevent any distortion or modification to
his work which would constitute
a misrepresentation of his
This right, as the other moral rights, is
held by the author or creator independently of any economic
rights he may or may not have in the work.
The Berne Convention,
an international union for the protection of authors' and artists' rights, provides in relevant part:
Independently of the author's economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation. 29
Under the Berne Union, the "author" of a film would clearly
be able to prevent the colorization of the same, at least if the alteration would prove "prejudicial to his honour or reputation." This right would be held regardless of whether he had any continuing economic interest in the film. The United States is not a signatory to the Berne Convention, 30 and for good reason: The Convention's recognition of moral, as opposed to economic, rights is contrary to our own domestic scheme of copyright
A second, yet related, difference exists between copyright protection under our 1976 Act and in those countries recognizing
moral rights. Under our 1976 Act, ownership of the copyright in a motion picture generally vests initially in the "employer" in relation to the project. 31 This employer is generally a production company or film studio. In contrast, in droit
d'auteur countries such as France, owners of the copyright in a motion picture include the individuals who contributed creatively to the finished work: individuals such as directors, cinematographers and film editors.
Thus, in contrast to our
country's protective scheme, the "author" of a motion picture in
such moral rights countries is not a production company or other employer, but rather the very creative contributors who make the
Such a theory of copyright protection, i.e. one that allows
individual creative contributors to enforce rights individually
and on their own behalf, has perhaps a pertinent parallel in
conflicting paradigms which have arisen in relation to film
making. Classic Hollywood's generally accepted conception of the film director's contribution has in essence been one of an "invisible style". Under this paradigm, the directorial contribution, as well as every other cinematic element, is viewed
as most effective when subordinated to the interests of the
movie's narrative. 33 This traditional subordination of style to story is paralleled by our country's scheme for protection of motion pictures by copyright. While a director's mise en scene,
or style, is indeed creative enough to warrant copyright protection, 34 it is perhaps viewed as too intermeshed and
inseparable from the completed work as
a whole to warrant
enforcement by anyone other than a common "employer".
In contrast, the la politique des auteurs, or "auteur", theory represents a film paradigm in direct conflict with Hollywood's "invisible style". First advocated by the French
"New Wave" film makers, the auteur theory advocates the director