Impediments to Distribution of Black and White Motion Pictures
Richard J. Greenstone
Glorify the past. Or, better yet, alter the medium which records daily events and chronicles our society. By the direct manipulation of film, technicians and their computers can put a new coat of paint on the past—bring it up to date—and make it palatable to those who have no interest in black and white motion pictures.
Development of computer colorization of black and white motion pictures began in the late 1970’s by two companies, Color Systems Technology Inc., and Colorization Inc. Not until recently, though, has colorization been put to wide scale use. Using similar technologies, they colorize copyrighted and public domain motion pictures for broadcast on television and sale as video cassettes,1 thereby exploiting for profit an unproductive property.
The controversy surrounding colorization now reaches the United States Copyright Office, which until the time of this writing, refused to issue certificates of copyright registration to colorized motion pictures.2 In response, the Copyright Office issued a Notice of Inquiry inviting public comments on the registrability of colorized motion pictures.3
Computer colorization of copyright and public domain motion pictures mandates exploration of the following issues. First, is the addition of color to motion pictures sufficiently original under the Copyright Act of 19764 to qualify as newly copyrightable works?5 Second, does distribution and sale of colorized motion pictures violate artists’ (such as directors’, actors’ and actresses’) privacy and publicity rights?6 Third, does the colorization process constitute unfair competition or violate motion picture directors’ artistic moral rights?7
Colorization and Copyright Law
Exploration of the issues involved in the colorization of black and white motion pictures entails examination of the words used in the Copyright Clause, as well as the fundamental statutory requirements for a valid copyright. Colorization raises the following copyright issues: Is the colorization itself a “writing” within the constitutional meaning of that term? Is the computer technician and his support staff an “author” within the constitutional parameters? Does the colorization process satisfy the quantum of originality necessary to support a copyright in the material added to the black and white work? Is the colorized work a derivative of the black and white motion picture within the meaning of the Copyright Act of 1976 and associated judicial opinions? Is the colorized motion picture copyrightable as an original combination or arrangement of colors?
Is the colorization itself a “writing” within the constitutional meaning of that term?
The term “writings” stems from the copyright clause.8 Copyright law protects only “writings,” but the word is broadly construed.9 As early as 1921, Judge Learned Hand commenting with remarkable prescience on the change in technology, liberally construed the word adopted in 1789:
[I]ts grants of power to Congress comprise not only what was then known, but what the ingenuity of men should devise thereafter. Of course, the new subject matter must have some relation to the grant; but we interpret it by the general practice of civilized peoples in similar fields, for it is not a straight-jacket, but a charter for a living people.10
The leading authority in copyright law reinforces the case for broad interpretation of “writings”. The term must have sufficient latitude to embrace the artistic and technological developments of an ever changing society.11
“Writings” include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”12 Nonverbal expression13 such as photographs,14 posters15 and motion pictures16 fall within the term.
Courts mandate two minimum standards for a work to qualify as a writing. The first, tangible form, is not discussed here as it is clear that the end result of the colorization process embodies colors (or color forms superimposed upon film images) fixed in motion picture film or video tape. The second, intellectual labor, presents a closer question when examined in the context of the colorization process.
Writings must contain “the fruits of intellectual labor.”17 The expenditure of such labor is actually a minimal standard of creativity. Only a slight degree of intellectual labor by the author is necessary to qualify the work as a writing.
Music carrries an emotional and aesthetic message which qualifies as a writing yet does not communicate by verbal or written expression. Color also carries these types of messages. Vincent Van Gogh utilized color to powerfully influence the viewer, to set a mood, communicate an idea and express a particular thought. At the beginning of the twentieth century painters of the Fauve style used color as their main point of communication with the viewer. The intellectual labor expended by these artists in choosing and applying the color go well beyond the minimum necessary to qualify the work as a writing.
Does the colorization process meet the minimal standards of intellectual labor? Although it would seem otherwise, intellectual labor is necessary to color even the most obvious objects such as human flesh or blue sky. When choices must be made as to saturation, tint, aesthetic juxtaposition and colors of nonobvious objects within the motion picture, it becomes quite clear that intellectual labor is expended in the process of colorizing a motion picture.
Upon examination of the amount of intellectual labor expended in the colorization of even the most elementary motion picture frame, and the meaning of the term “writings,” the product of the colorization process is a “writing” pursuant to the copyright clause.
Is the computer technician and his support staff an “author” within the constitional parameters?
Only “authors” are entitled to the protection of the copyright laws under the copyright clause.18 The term is defined as “‘he to whom anything owes its origin; originator; maker.'”19 Implied in this defintion of “authors” is the element of originality. One who merely copies is not an author; the work must be one’s original product. For example, the transfer of a design from a cast iron Uncle Sam bank to one cast in plastic with very minor changes in detail and size shows only copying with no originality attributable to the technician.20
Like a writing, originality must show a minimum of intellectual labor.21 Again, only the smallest amount is necessary to establish one as an “author.” An author’s unique personality is enough to overcome the barriers of intellectual labor for it expresses singularity in any “very modest grade of art ….”22
Positive and negative arguments exist for the classification of the computer technician and his team (or the employer in the case of a work for hire arrangement) as “authors.” If the computer technician makes serious color decisions that affect communication of expression, mood or meaning of the motion picture, then it could be said that the technician has expended enough intellectual labor to qualify as an author. An even clearer case is presented when an artist such as Andy Warhol adds arbitrary color. A well known artist known for creative use of color certainly adds something singular reflecting his personality through color. This is the clearest case of the colorist qualifying under the legal meaning of the term “author.” At the opposite end of the spectrum is the colorist adding color much like a child who uses crayon on a coloring book picture that only contains outlines. The child in coloring may not expend sufficient intellectual labor and creativity to qualify as an “author” within the constitutional meaning of that term.23 A colorist performs a similar task with more sophisticated tools. He colors in an image much like a coloring book, exercising more decisions than the child, and no doubt exercising much more intellectual labor. A clear case, then, can be made for the colorist as author, but only if he makes color choices at some level beyond mere carelessness and intuition.
Does the colorization product satisfy the quantum of originality necessary to support a copyright in the material added to the black and white work?
The protection of the copyright laws extends only to “original works of authorship.”24 The term “original” is left undefined by the Copyright Act but incorporates the standard of originality established by the courts under the 1909 Copyright Act.25“Originality means only that the work owes its origin to the author, i.e., is independently created, and not copied from other works.”26
How much originality is necessary to support a copyright? Generally, “[a]ny ‘distinguishable variation’ of a prior work will constitute sufficient originality to support a copyright if such variation is the product of the author’s independent efforts, and is more than merely trivial.”27 The doctrine was first expressed by Justice Holmes in Bleistein v. Donaldson Lithographing Co.28Holmes argued that an author’s personality always managed to express its singularity through a distinguishable variation in any “very modest grade of art ….”29 A distinguishable variation, is then easily created by the author. Other courts support this viewpoint using as an example a book containing compilations of preexisting materials which shows “only ordinary skill and diligence in … preparation.”30
Exploring the following three cases is useful when discussing originality and distinguishable variation of colorized black and white motion pictures.
The first case, Alfred Bell & Co. v. Catalda Fine Arts, Inc.,31 involved mezzotint engraving of public domain old master works. The court dismissed the patent requirement of novelty, and then went on to discuss originality and the mezzotint process.
It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. Accordingly, we were not ignoring the Constitution when we stated that a ‘copy of something in the public domain’ will support a copyright if it is a ‘distinguishable variation’; or when we rejected the contention that ‘like a patent, a copyrighted work must be not only original, but new’, adding, ‘That is not … the law as is obvious in the case of maps or compendia, where later works will necessarily be anticipated.’ All that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’ Originality in this context ‘means little more than a prohibition of actual copying.’ No matter how poor artistically the ‘author’s’ addition, it is enough if it be his own.32
The factual similarities between Catalda and the colorization of black and white motion pictures should suggest that such colorization will produce a newly copyrightable work. But Catalda notes that originality in relation to a distinguishable variation excludes actual copying of the work. A colorized motion picture is no different than the black and white version with all aspects of the work—direction, acting, dialogue, music—slavishly copied. Colorization, then, is really not a distinguishable variation of the black and white work.
The Catalda case clearly finds that sufficient originality is expended by the author in the mezzotint process. The court, in the following quotation from a treatise on copyright law, studied the engraver’s craft with respect to skill, diligence and originality.
Again, an engraver is almost invariably a copyist, but although his work may infringe copyright in the original painting if made without the consent of the owner of the copyright therein, his work may still be original in the sense that he has employed skill and judgment in its production.33
The engraver produces an entirely new picture whereas the colorist uses the existing image along with the other major elements of the motion picture. Upon first inspection, the Catalda case would seem to directly affect the analysis. In light of the proscription against actual copying but with the computer colorist using all facets of the preexisting work, versus the engraver making an entirely new picture, a distinguishable variation that is sufficiently original is not produced.
In L. Batlin & Son, Inc. v. Snyder,34 Snyder copied Batlin’s metal Uncle Sam bank with only inconsequential changes in size, detail and material. The process of sculpting the mold took only two days. The court rejected any notion that the requirement of originality could be satisfied by both copying and a low level of “physical skill” or “special training;” the work had to be the original product of the claimant without actual copying.35 The court, citing Catalda, required a considerably higher degree of skill to make the reproduction copyrightable.36 If the work did not contain some substantial and not merely trivial originality that is at least a distinguishable variation from the copy, then the work could not obtain a copyright.37 Indeed, a genuine difference between the work and the copy is necessary. The court’s policy supporting the distinguishable variation standard prevents those who would try to grasp something not of their own making and capitalize upon the property—a common condition and one very similar to the colorization of public domain motion pictures. “To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.”38
The third case, Alva Studios, Inc. v. Winninger,39 involved the scaled reduction and duplication of Rodin’s “Hand of God.” The reproduction, for use by art museums, took many man-hours to duplicate. The court found sufficient originality to uphold a copyright but stated that the work must be “original in the sense that the author has created it by his own skill, labour and judgment without directly copying or evasively imitating the work of another.”40
In the three cases just discussed, the works of art involved only one or two media in the range of artistic expression. Changing one facet of those works may obtain copyright protection if the change produces a nontrivial, distinguishable variation of substantial originality. The courts found originality only where a large percentage of the work was changed. The production of a motion picture, though, involves a dozen or more identifiable forms of art and the numerous skills of many craftsmen; it is truly a collaborative art form. A successful, sophisticated and professional motion picture requires contributions of direction, cinematography, acting, screenwriting, editing, lighting, art direction, staging, costuming, choreography, iconography and typography to name just a few. Changing one of these may not have the effect of creating a nontrivial, distinguishable variation of substantial originality because only one facet is changed among many; only a very small percentage of the work changes. Colorizing the black and white image does not change any of the above listed forms of art or artistic contributions that go into the production of a motion picture. The colorist neither adds to nor creates a distinguishable variation of substantial originality that is more than merely trivial41 of the aformentioned elements of a motion picture. Colorization does not change the cinematography, for the colors are merely imposed on the image. There is no change in angle, composition or lighting. The colorist takes the black and white work by direct copying, which is proscribed by Alva,42 and adds color. The colorization of only one aspect of such a complex art form and the copying of the other facets of the motion picture, cannot produce a distinguishable variation of substantial originality worthy of extending copyright protection to the new work.
The process of transfering a motion picture embodied on film to video tape is not a basis for original or derivative authorship. The change of format involves technical skill to assure faithful reproduction, but has never qualified as an original work of authorship. It is important to distinguish the industrial artisanship involved in the manipulation of film such as in the transferance from one format to another, with the artistic creativity necessary to make an original motion picture capable of copyright protection. This distinction is highlighted when comparing Catalda, Batlin and Alva. The accurate scale reproduction of Rodin’s “Hand of God” required great skill and originality while the reproduction of an Uncle Sam savings bank required more than mere “physical skill or “special training.” The mezzotint etching required “skill and judgment in its production.” To be sure, the colorization of motion pictures involves technical skill; that skill does not approach the higher level of skill and judgment found by the Catalda and Alva courts.
The colorization is performed by a computer under the direction of a technician. The technician takes his direction from an art director, but more often than not, from a person who was involved in some way with the original production. Originality is not inherent in such a process where colors are recalled from memory by a person who may have been involved in the original production and is now just relating to the technician colors that were used in a particular scene.
Is the colorized work a derivative of the black and white motion picture within the meaning of the Copyright Act of 1976 and associated judicial opinions?
“The subject matter of copyright … includes …derivative works ….”43 The derivative work is separately copyrightable from the original only when that derivative satisifies the requirement of originality discussed supra.44 Once again, that standard is a “distinguishable variation that is more than “merely trivial.”45
A derivative work is based upon one or more preexisting works in which the original may be recast, transformed, or adapted using original material.46 This includes a new version of a work in the public domain.47 A colorized motion picture, whether in the public domain or protected under an existing copyright is a derivative of the first work.
If copyright protects the colorization product, then copyright in the colorized derivative work extends to the material contributed by the colorist but not to the preexisting motion picture.48 A derivative copyright will not confer upon the colorist any exclusive right to the preexisting work.49 If the original motion picture is in the public domain, a copyright in the derivative work will not protect the preexisting work.50
The term of the colorized derivative work should not enlarge or affect the duration of the term of the preexisting motion picture,51 nor should it “save” a preexisitng work from the public domain.
A derivative work will qualify for a copyright where the new, original matter constitutes “more than a minimal contribution.”52 Otherwise, “[t]o extend copyrightability to miniscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.”53 Is more than a minimal contribution to a black and white work made by the colorization process such that it results in copyrightable differences? The addition of color is a minimal a contribution after the initial production of the motion picture. The initial contributions involved direction, script writing, acting, music and cinematography. An addition of color to a motion picture many years after production, where the colorist admittedly seeks not to alter the majority of the original artistic contributions, comprises a minimal contribution to the totality of that work. In Uneeda Doll Co. v. Regent Baby Prods. Corp.,54 a factual situation similar to the colorization of black and white motion pictures, the applicant changed colors painted on dolls. The Copyright Office denied copyright to the applicant stating that the changes did not create “copyrightable differences.”55
Is the colorized motion picture copyrightable as an original combination or arrangement of colors?
The Copyright Office will not entertain applications for registration of “mere variations of…coloring…”56 as color per se is uncopyrightable. But arrangements or combinations of color, if original, are protected by copyright.57 Color, itself, is one factor in determining originality.58 Court decisions are inconsistent whether the addition of color to a black and white composition constitutes substantial originality.59 Once again, the cited cases generally deal with de minimis one component, one medium works. A colorized motion picture has many components, only one of which has changed.
The colors produced by colorization are not an arrangement of colors as defined in Pantone, Inc. v. A.I. Friedman, Inc.,60where a color scale booklet was prepared as a guide for artists. The colors are mere superimpositions over the image, added for the novel effect of turning a black and white work into a color work. The addition of color does not affect the meaning of the motion picture. It is a sideshow or come-on to the purchase of a product. The color in a colorized motion picture is merely incidental to the plot, photography, direction and dialogue. It is not the raison d’être for the film and serves no similar purpose as do the precise color charts in the Pantone61 case. Colorization is more in line with the facts of Uneeda Doll,62 where the court rejected copyrightability of color added to dolls.
Colorization, and Privacy/Publicity Rights
The torts of invasion of privacy and right of publicity are the second set of impediments to the distribution and sale of colorized motion pictures. The director of a motion picture, actors and others who may have received prominent billing, may assert these causes of action. The colorization producer or distributor could be liable to these persons for violations of right to privacy or publicity.
There are four distinct forms of tortious invasion of privacy:63 Commercial appropriation of plaintiff’s name or likeness;64intrusion upon plaintiff’s physical solitude or seculsion; publicity which places plaintiff in false light in the public eye; and public disclosure of true, embarrassing private facts about plaintiff. Only the first form has importance in the colorization controversy.
The protection of name and likeness from unwarranted intrusion or invasion is the heart of the law of privacy.65 The producers of colorized works inevitably use the names and likenesses of actors and directors for advertising and show billing purposes as if these persons were connected with the colorization production. But many of the actors and directors associated with black and white motion pictures object to the colorization process on artistic and technical grounds and resist having their name used to sell a product they believe has no artistic merit.
The colorization producer must advertise to the public that the motion picture is a film by a particular director starring a particular actor. The unique qualities of the film would not exist without these artists’ contributions. The buying public recognizes this and purchases the motion picture based on the various artists’ fame, contributions or style. The colorization producer in most cases uses artists’ names and likenesses without permission capitalizing on their fame to make his fortune.
It is inevitable that the colorist will violate artists’ right of privacy by appropriating names or likenesses for commercial use. The selling of a motion picture, by its very nature, involves a use, usually by showing a still picture depicting a scene from the motion picture along with star, director and producer show billing. The actor or director does not grant to the colorization producer or distributor the right to use their names or likenesses just because they appear in a motion picture. That grant only extends to the original producer, copyright holder or subsequent owner of various rights in the production. The original producer acquires the right to use the name and likeness through contract. There is no violation of a privacy right when the original contract allows subsequent adaptation and derivative use of the motion picture by the copyright owner or original producer. But the colorization producer of a public domain motion picture has no contract to use name or likeness with the original actor or director. No privity of contract exists between the colorist and either the original producer, copyright holder, or subsequent owner of various rights, or the actor and director. Therefore, the use of the name or likeness without contractual permission may violate the commercial appropriation form of the right to privacy.
Where the right to privacy is a personal right, the right to publicity is an economic right of a proprietary nature. The right to publicity protects the pecuniary and commercial value of a name, likeness or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or persona.66 The right to privacy protects injury to feelings from unauthorized use of name and likeness; the right of publicity extends to that persons characteristics or personal identity.67 Both rights involve similar factual situations. The right of privacy protects against an unprivileged invasion, while the right to publicity prevents exploitation.
Capitalization on name and likeness as “property” creates a property right.68 Because the right of publicity is proprietary in nature,69 the owner of that right can license or sell it to one willing to pay for the exploitation of that right.70 The actor may also attempt to service mark a particular character and likeness.71 In one case, Bela Lugosi failed to exploit his characterization as Count Dracula as a property which he could sell, license or pass on to his heirs.72 If he had developed a property right to the character and likeness, he would have had a protectible interest even if the motion picture bearing his character’s name slipped into the public domain. A colorization producer capitalizing upon his character and likeness would have had to acquire rights to the character for purposes of marketing the colorized work or subject himself to an action for a violation of Lugosi’s publicity rights.
Under the common law, the causes of action of right to privacy and right to publicity are personal, sustainable only during the life of the actor or director, unless their family members’ privacy rights are also invaded.73 The causes of action are “not assignable,74 and while the cause of action may or may not survive after death, according to the survival rules of the particular state, there is no common law right of action for a publication concerning one who is already dead.”75 The common law rights expire upon the death of the person; they are not descendible.76 As a result of Lugosi v. Universal Pictures,77 California enacted a statute concerned with the use of name and likeness without consent of the deceased personality.78 Unfortunately the statute does not apply to use of a personality’s name and likeness in film or a commercial advertisement for that film.79
An actor or director will have to continue to rely upon the common law right to publicity and privacy during their lifetime unless they have exploited their name, likeness and character as a property right. As these persons become more sophisticated in the exploitation of their property rights, the burden of maintaining an action for violation of privacy or publicity is lessened. They will increasingly use the right of publicity cause of action to redress violations inflicted by the colorist.
Colorization, Moral Rights and Unfair Competition
The third impediment to the colorization of motion pictures are moral rights (also known as droit moral) accorded to artists, and by implication, to directors.80 The director’s moral rights encompass: 1) attribution as the director of his work; 2) prevention of attribution of his work to another; 3) prevention of attribution to work he has not in fact directed, or not in the form in which he created it; 4) prevention of others from altering, mutilating or deforming his works; 5) withdrawal of a published work from distribution if it no longer represents his views; and 6) prevention of others using his work or name in such a way as to reflect on his professional standing.81 Generally, the director who objects to the colorization of his work would base his claim on numbers three, four and five.
Moral rights are personal rights. They are not based on any theory of property; property rights of the director are protected by copyright. Moral rights can be likened to those rights in tort which protect the individual against injury.82 They cover the body of the director’s work. On a societal basis, moral rights protect his personality, honor and reputation.83
The two most important moral rights statutes are inapplicable to motion pictures thereby making prosecution of an infringement doubly difficult. The California statute84 only applies to “‘[f]ine art’ [meaning] an original painting, sculpture, or drawing of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser.”85 The New York moral rights law specifically excludes motion pictures by name.86
Common law moral rights are not recognized in the United States. But analogous rights are found in the laws of copyright, contract, defamation, privacy and unfair competition.87 For example, alteration through editing has been enjoined on grounds other than moral rights by a number of courts to protect a motion picture director’s original intention and vision.88 Even a garbled or altered version of public domain uncopyrighted work may not be published by the use of contract and tort law.89
In the rare situation where a work is colorized and is still covered by copyright, the director must determine whether an assignment or license has been made that grants the colorist the right to make changes which amount to alteration or distortion in the work, or whether there are no contractual prohibitions in any form. The director may have a cause of action for copyright infringement if he finds that there are contractual prohibitions against mutilation or alteration of the work.
In the case of Gilliam v. American Broadcasting Cos., Inc.,90 the court found that extensive unauthorized editing for broadcast of the Monty Python shows impaired the integrity of the original work constituting an infringement of copyright. The court reasoned that such extensive editing would undermine the original work and affect new viewers’ understanding of the comedy. Such misunderstanding by viewers would not create loyal Python followers and thus affect the future value of works by Monty Python.91 Can the colorization of a motion picture be likened to editing which causes mutiliation and alteration? In both the colorization scenario and Gilliam, the original works were changed to make them more saleable. The Monty Python shows were edited to include commercials and delete obscene matter deemed too offensive to American viewers.92 The colorist aims to increase sales of black and white films by colorizing, thus making them more popular to the general public. Both extensive editing of a work, which the court found to constitute copyright infringement in Gilliam, and alteration of a work from black and white to color, impair the integrity of the work.93 The addition of color is reediting94 thereby altering and mutilating the motion picture.
Suppose that a director purposely creates a modern black and white film when he could have had the choice of making it in color. Two examples include Woody Allen’s work “Manhattan” and David Lynch’s “Eraserhead.” A black and white motion picture is photographed for that medium by the use of special lighting with higher contrast between light and shadow, certain colors on the set which will transfer properly to the black and white gray scale of motion picture film, and imagery that is often oppressive and dreary. The work is made within the limiations of black and white motion picture film. The director is constrained in some respects but is also able to take advantage of the special qualities of that medium. Directors now recognize the unique demands of production in black and white and demand provisions in their production contracts stating that their films will not be altered in any way.95 Colorization would be a breach of moral rights and contract.
The court in Gilliam also found that mutiliation of the plaintiff’s work, if accompanied by the author’s name, violates Section 43(a) of the Lanham Act96 amounting to misrepresentation. The court based its decision upon the fact that American copyright law does not recognize moral rights, as the law seeks to enforce economic rather than personal rights. Misrepresentation, false description and false designation of origin are at the heart of the Lanham Act and state counterparts to unfair competition laws. The Lanham Act has been used repeatedly to “prevent misrepresentations that may injure plaintiff’s business or personal reputation, even where no registered trademark is concerned.”97 Because American laws cannot reconcile the fact that artists cannot obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent,98 courts have granted relief under contract law for misrepresentation99 or the tort of unfair competition.100“Although such decisions are clothed in terms of proprietary right in one’s creation, they also properly vindicate the author’s personal right to prevent the presentation of his work to the public in a distorted form.”101 An allegation that a colorist has presented to the public a mutilitated or distorted version of the director’s work “seeks to redress the very rights sought to be protected by the Lanham Act…and should be recognized as stating a cause of action under that statute.”102
“To deform his [the director’s] work is to present him to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done.”103 The director suffers the consequences of the mutiliation, “for the public will have only the final product by which to evaluate the work.”104 This result is not changed by the fact that the colorist takes public responsibility for the outcome of the colorization process.105
The director, whose rights are violated, has a powerful tool in the Lanham Act. Use of the Lanham Act is a back door to the assertion of moral rights. The cases speak to the violation of artists’ rights even where that artist may have parted with those rights; the right to edit, colorize or insert commercials ends where alterations deface or mutilate the work.106 Where the director no longer has any proprietary rights in the work, unfair competition laws protecting residual moral rights may be applied to the colorization of public domain films where there is unconsented to attribution or use of the director’s name in the colorized work or for marketing of that work.
Many obstructions block the distribution of colorized motion pictures should the proper party decide to contest the colorization process in court. The foundations of copyright are based on economic remuneration to the author;107 without it, no incentive exists to expend upwards of $150,000 per film108 upon the colorization process. If the colorist cannot secure copyright protection for a colorized version of a work, the colorist may abandon the process when others begin to freely copy the result.
Whether colorization evinces sufficient originality is still open to question. This is complicated by the fact that much of the colorization process is carried out not by the colorist, but by computer. As an automated process, it is not original. Colorization is not, to be sure, an arrangement of colors in the sense that the Pantone case presented an orderly progression of color bars.
As long as the artists who are involved in the original production of the motion pictures complain about the colorization process, the colorization producer risks actions against him based on privacy, publicity, unfair competition and moral rights. With so much money at stake and an actor or director unwilling to see his work altered and defaced, there is sure to be extensive litigation in the coming months upon the issues touched in this article.
By the introduction of a few colorized motion pictures, the colorists have created a demand for older works which would not be shown otherwise. Although the public may demand colorized motion pictures, the general public has no right to dictate the form of a work of art.109 If it did, art would only be as complex as the sophistication of the lowest common denominator. The colorization of motion pictures should not be left to the whim of the public. All existing art, including motion pictures, is more than mere property subject to change by a passing fad. It is a gift for the ages from those with a unique vision. The colorists should not tamper with that vision.
1. For an excellent description of the two colorization processes and the viewpoints of producers, directors and actors, seeReifsnyder, The Color Purple…And Blue and Red and Green. The Colorization Controversy Continues, Video Review, Aug. 1986, at 48. But see, Interview with Jimmy Stewart, Video Review, June 1986, at 42.
2. 17 U.S.C.A. § 410(b) (West 1977).
3. 51 Fed. Reg. 32665 (1986) (Registration of Claims To Copyright, Notice of Inquiry; Colorization of Motion Pictures).
4. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C.A. §§ 101-914 (West 1977 & Supp. 1986)).
5. See infra notes 8 to 62 and accompanying text.
6. See infra notes 63 to 79 and accompanying text.
7. See infra notes 80 to 106 and accompanying text.
8. “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Const. art. I, § 8, cl. 8.
9. Goldstein v. California, 412 U.S. 546, 561 (1973).
10. Reiss v. National Quotation Bureau, 276 Fed. 717, 719 (S.D.N.Y. 1921) (code book termed a “writing”).
11. 1 M. Nimmer, Nimmer on Copyright § 1.08[A], at 1-44 (1986).
12. Goldstein v. California, 412 U.S. at 561.
13. Cf. United States v. Chase, 135 U.S. 255, 258-59 (1895) (“writings” synonymous with literary productions).
14. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884).
15. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).
16. Kalem Co v. Harper Bros., 222 U.S. 55 (1911); Metro-Goldwyn-Mayer Distrib. Corp. v. Bijou Theatre Co., 3 F. Supp. 66 (D. Mass. 1933); American Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 Fed. 262 (C.C.D. N.J. 1905).
17. The Trademark Cases, 100 U.S. 82 (1879).
18. U.S. Const. art. I, § 8, cl. 8.
19. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. at 57.
20. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.), cert. denied, 429 U.S. 857 (1976).
21. The Trademark Cases, 100 U.S. 82 (1879).
22. Bleistein v. Donaldson Lithographing Co.,188 U.S. at 250.
23. See Sargent v. American Greetings Corp., 588 F. Supp. 912, 918 (N.D. Ohio 1984), where the court found a question of material fact with respect to defendant’s contention that colorization of pencil line artwork shows insufficient originality.
24 . 17 U.S.C.A. § 102(a) (West 1977).
25. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5664. “Since the constitutional requirement must be read into the Copyright Act … the requirement of originality is a statutory one.” Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d Cir. 1945); L. Batlin & Son, Inc. v. Snyder, 536 F.2d at 490.
26. 1 M. Nimmer, Nimmer on Copyright § 2.01[A], at 2-8 (1986), paraphrasing Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951).
27. 1 M. Nimmer, Nimmer on Copyright § 2.01[B], at 2-11 (1986). See Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) (mezzotint engraving of public domain works); Dan Kasoff, Inc. v. Novelty Jewelry Co., 309 F.2d 745, 746 (2d Cir. 1962) (per curiam) (addition to “garish trinket”); Rushton v. Vitale, 218 F.2d 434, 435 (2d Cir. 1955) (Zippy the Chimpanzee doll original); Gerlach-Barklow v. Morris & Bendien, 23 F.2d 159, 161 (2d Cir. 1927) (distinguishable variation of theme); Alva Studios, Inc. v. Winninger, 177 F. Supp. 265, 267 (S.D.N.Y. 1959) (scale reproduction of Rodin sculpture). Cf. Gross v. Seligman, 212 F. 930, 931 (2d Cir. 1914) (photographer executes two identical pictures two years apart; second picture lacked originality).
28 . 188 U.S. 239, 250 (1903).
30. Henderson v. Tompkins, 60 F. 758, 764 (C.C.D. Mass. 1894).
31. 191 F.2d 99 (2d Cir. 1951) (popularly referred to as “The Mezzotint Case”).
32. Id. at 102-03 (footnote omitted).
33. Id. at 104-05, quoting W. Copinger, The Law of Copyrights 46 (7th ed. 1936).
34. 536 F.2d 486 (2d Cir.), cert. denied, 429 U.S. 857 (1976).
35. Id. at 491. See also Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980) (manufacture of copies of Disney wind-up toys required physical, not artistic skill).
36. Id. at 491 (note that “physical skill” or “special training” does not approach the Catalda requirement of “skill and judgment in … production”). See also Millworth Converting Corp. v. Slifka, 276 F.2d 443, 445 (2d Cir. 1960) (one month to copy fabric design).
37. 536 F.2d at 491.
38. 536 F.2d at 492.
39 . 177 F. Supp. 265 (S.D.N.Y. 1959).
40. Id. at 267, quoting Hoffman v. Le Traunik, 209 F. 375, 379 (N.D.N.Y. 1913).
41. 191 F.2d at 102-03.
42. 177 F. Supp. at 267.
43. 17 U.S.C.A. § 103(a) (West 1977).
44. See supra notes 24 to 42 and accompanying text.
45. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951) (derivative mezzotint colorization a “distinguishable variation); Sherry Mfg. Co. v. Towel King of Florida, Inc., 753 F.2d 1565, 1568 (11th Cir. 1985) (silkscreen design on towel an insubstantial variation); Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980) (“derivative aspects must be more than trivial”). See Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1061 (9th Cir. 1981) (addition of “something original”); American Greetings Corp. v. Kleinfab Corp., 400 F. Supp. 228, 232 (S.D.N.Y. 1975) (addition of “Put on a Happy Face” to artwork). See supra notes 27 to 42 and accompanying text.
46. 17 U.S.C.A. § 101 (West 1977); 1 M. Nimmer, Nimmer on Copyright § 3.03, at 3-9 (1986). See also Lake v. Columbia Broadcasting Sys., Inc., 140 F. Supp. 707, 709 (S.D. Cal. 1956)
47. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) (mezzotint colorization a “distinguishable variation); Hesse v. Brunner, 172 F. Supp. 284, 287 (S.D.N.Y. 1959) (diorama of religious subject); Allegrini v. De Angelis, 59 F. Supp 248, 250 (E.D. Pa. 1944), aff’d, 149 F.2d 815 (3d Cir. 1945) (new matter and public domain material combine to create a new work); see Creative Arts, Inc. v. Abady & Sultan, Inc., 134 U.S.P.Q. 388, 389 (S.D. Fla. 1962) (three dimensional religious scenes are new works); Millworth Converting Corp. v. Slifka, 276 F.2d 443, 445 (2d Cir. 1960) (fabric design contains substantial originality); cf. Hesse v. Grossman, 152 Cal. App. 2d 536, 540, 313 P.2d 625 (1957) (infringement of uncopyrighted pictures present claim for unfair competition); Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800, 802 (2d Cir. 1960) (adaptation of ancient art form shows sufficient originality).
48. 17 U.S.C. § 103(b) (West 1977).
50. “The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. 17 U.S.C.A. § 103(b) (West 1977). See also American Code Co. v. Bensinger, 282 F. 829, 834 (2d Cir. 1922) (new matter added to code book); Russ Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F. Supp. 980, 985 (S.D.N.Y. 1980) (new version of stuffed bear rejected by court); Musto v. Meyer, 434 F. Supp 32, 36 (S.D.N.Y. 1977) (modern medical description of Sherlock Holmes’ cocaine addiction does not remove Doyle’s “The Final Problem” from the public domain), aff’d, 598 F.2d 609 (2d Cir 1979); Grove Press, Inc. v. Collectors Publication, Inc., 264 F. Supp. 603, 606 (C.D. Cal. 1967) (copy of reproduction of public domain book infringed new matter).
51. 17 U.S.C.A. § 103(b) (West 1977). See also 17 U.S.C.A. § 7 (West Supp. app. 1986) (repealed 1977); Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91, 92 (2d Cir. 1981) (derivative of Hopalong Cassidy).
52. 1 M. Nimmer, Nimmer on Copyright § 3.03, at 3-10 (1986); Sherry Mfg. Co. v. Towel King of Florida, Inc., 753 F.2d at 1568 (11th Cir. 1985) (silkscreen design on towel an insubstantial variation).
53. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir.), cert. denied, 429 U.S. 857 (1976).
54. 355 F. Supp. 438 (E.D.N.Y. 1972).
55. Id. at 443. It should be noted that the copyright applicant did not contest the Copyright Office decision.
56. 37 C.F.R. § 202.1(a) (1985).
57 Pantone, Inc. v. A.I. Friedman, Inc., 294 F. Supp. 545, 548 (S.D.N.Y. 1968) (combination and arrangement of colors present sufficient originality); see Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090,1096 (2d Cir. 1977) (colors in plaid design an element of copyright); Primcot Fabrics, Dept. of Prismatic Fab., Inc. v. Kleinfab Corp., 368 F. Supp. 482, 484 (S.D.N.Y. 1974) (“juxtaposition of colors” copyrightable); cf. Uneeda Doll Co. v. Regent Baby Prods. Corp., 355 F. Supp. 438, 443 (E.D.N.Y. 1940) (addition of new color to dolls not copyrightable).
58. Sargent v. American Greetings, Corp., 588 F. Supp. 912, 918 (N.D. Ohio 1984) (addition of color to line pencil drawings); Pantone, Inc. v. A.I. Friedman, Inc., 294 F. Supp. 545, 548 (S.D.N.Y. 1968) (combination and arrangement of colors present sufficient originality).
59. Sargent v. American Greetings, Corp., 588 F. Supp. at 918 (N.D. Ohio 1984) (question of fact whether addition of color to line pencil drawings constitutes sufficient originality); contra Uneeda Doll Co. v. Regent Baby Prods. Corp., 355 F. Supp. at 443(E.D.N.Y. 1940) (addition of new color to dolls not copyrightable).
60. 294 F. Supp. at 548.
62. 355 F. Supp. at 443.
63. Porten v. University of San Francisco, 64 Cal. App. 3d 825, 828, 134 Cal. Rptr. 839, 841, (1976); see W. Prosser, The Law of Torts § 117, at 804-14 (4th ed. 1971).
64. Two states’ statutes are of interest. Cal. Civ. Code § 3344 (West Supp. 1986) states:
(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof ….
N.Y. Civ. Rights Law § 50 (McKinney 1976) states:
A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
N.Y. Civ. Rights Law § 51 (McKinney Supp. 1986) states:
Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof: and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages ….
See also Restatement (Second) of Torts § 652C (1977).
65. Lugosi v. Universal Pictures, 25 Cal. 3d 813, 824, 160 Cal. Rptr. 323, 329 (1979).
66. Ali v. Playgirl, Inc., 447 F. Supp 723, 728 (S.D.N.Y. 1978) (use of objectionable portrait).
67. Note, Commercial Appropriation of an Individual’s Name, Photograph or Likeness: A New Remedy for Californians, 3 Pac. L.J. 651, 669 (1972).
68. Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir. 1953) (name and likeness a property right);Cepeda v. Swift and Co., 415 F.2d 1205, 1206 (8th Cir. 1969) (baseball star’s name and likeness a property right); Uhlaender v. Henricksen, 316 F. Supp. 1277, 1282 (D.Minn. 1970) (protection of name and likeness through injunctive relief).
69. Hicks v. Casablanca Records, 464 F. Supp. 426, 429 (S.D.N.Y. 1978) (life of Agatha Christie).
70. Lugosi v. Universal Pictures, 25 Cal. 3d at 824, 160 Cal. Rptr. at 329.
71. Heneghan and Wamsley, The Service Mark Alternative to the Right of Publicity: Estate of Presley v. Russen, 14 Pac. L.J. 181 (1983).
72. Lugosi v. Universal Pictures, 25 Cal. 3d 813, 160 Cal. Rptr. 323 (1979).
73. Lugosi v. Universal Pictures, 25 Cal. 3d at 820, 160 Cal. Rptr. at 327, citing W. Prosser, The Law of Torts
§ 117, at 814-15 (4th ed. 1971).
74. See Maritote v. Desilu Prods., Inc., 345 F.2d 418, 419 (7th Cir.) (no cause of action for television production depicting life of Al Capone), cert. denied, 382 U.S. 883 (1965); Schumann v. Loew’s Incorporated, 135 N.Y.S.2d 361, 365 (N.Y. Sup. Ct. 1954) (no cause of action for motion picture “Song of Love” depicting life of Robert Schumann”); James v. Screen Gems, Inc. 174 Cal. App. 2d 650, 653, 344 P.2d 799, 801 (1959) (no cause of action for motion picture “Bitter Heritage” depicting life of Jesse James); but see Cal. Civ. Code § 990 (West Supp. 1986).
75. Lugosi v. Universal Pictures, 25 Cal. 3d at 820, 160 Cal. Rptr. at 327 (italics omitted), citing W. Prosser, The Law of Torts § 117, at 814-15 (4th ed. 1971).
76. Lugosi v. Universal Pictures, 25 Cal. 3d at 819, 160 Cal. Rptr. at 326; Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 861, 861, 160 Cal. Rptr. 352, 353 (1979).
77. 25 Cal. 3d 813, 160 Cal. Rptr. 323 (1979).
78. Cal. Civ. Code § 990 (West Supp. 1986), states in part:
(a) Any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof.
(b) The rights recognized under this section are property rights, freely transferable, in whole or in part, by contract or by means of trust or testamentary documents, whether the transfer occurs before the death of the deceased personality, by the deceased personality or his or her transferees, or, after death of the deceased personality, by the person or persons in whom such righs vest under this section or the transferees of that person or persons.
(g) No action shall be brought under this section by reason of any use of a deceased personality’s name, voice, signature, photograph, or likeness occurring after the expiration of 50 years from the death of the deceased personality.
(n) This section shall not apply to the use of a deceased personality’s name, voice, signature, photograph, or likeness, in any of the following instances:
(1) A play, book, magazine, newspaper, musical composition, film, radio or television program, other than an advertisement or commercial announcement not exempt under paragraph (4).
(4) An advertisement or commercial announcement for a use permitted by paragraph (1), (2), or (3).
80. Under the auteur theory of film making, the director is the primary artist. The completed film is ascribed to the director and he is responsible for its artistic successes and failures.
81. 2 M. Nimmer, Nimmer on Copyright § 8.21[A], at 8-247 (1986).
82. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554, 564 (1940).
83. Id. at 569.
84. Cal. Civ. Code § 987 (West Supp. 1986). See Karlen, Moral Rights in California, 19 San Diego L. Rev. 675, 693 (1982).
85. Cal. Civ. Code § 987(b)(2) (West Supp. 1986).
86. N.Y. Arts and Cul. Affairs Law § 14.03 (McKinney Supp. 1986).
87. Geisel v. Poynter Prods., Inc., 295 F. Supp. 331, 340 (S.D.N.Y. 1968) (moral right may be asserted through contract);Edison v. Viva Int’l, Ltd., 70 A.D. 2d 379, 421 N.Y.S.2d 203, 206 (1979) (moral right subsumed by contract).
88. Gilliam v. American Broadcasting Co., Inc., 538 F.2d 14, 21 (2d Cir. 1976) (use of copyright law, discussed infra at notes 90 to 94 and accompanying text); Stevens v. National Broadcasting Co., 148 U.S.P.Q. 755, 756 (Cal. Super. Ct.) (false light), aff’d, 150 U.S.P.Q. 572 (Cal. Super. Ct. 1966); Preminger v. Columbia Pictures Corp., 148 U.S.P.Q. 398, 400 (N.Y. Sup. Ct.) (contract), aff’d, 149 U.S.P.Q. 872 (N.Y. App. Div.), aff’d, 150 U.S.P.Q. 829 (N.Y. App. Div. 1966); Autry v. Republic Prods., Inc., 213 F.2d 667, 669 (9th Cir. 1954) (contract). Cf. Granz v. Harris, 198 F.2d 585, 588 (2d Cir. 1952) (rescission of contract for sale of master phonographic jazz recordings).
89. Granz v. Harris, 198 F.2d 585, 589 (2d Cir. 1952) (rescission of contract for sale of master phonographic jazz recordings); see Byron v. Johnston, 2 Mer. 28, 35 Eng. Rep. 851 (1816) (attribution of another’s poetry to Lord Byron).
90. 538 F.2d 14 (2d Cir. 1976).
91. Id. at 19.
92. Id. at 18.
93. Id. Cf. Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1014 (7th Cir.) (addition of electronic board to speed up play in video game constitutes an infringing and derivative work), cert. denied, 464 U.S. 823 (1983).
94. Mathews, Film Directors See Red Over Ted Turner’s Movie Tinting, Los Angeles Times, Sept. 12, 1986, § VI, at 10, col. 1.
95. Id. at 11, col. 1.
96. Lanham Act § 43(a), 15 U.S.C.A. § 1125(a) (West 1982) states in part:
Any person who shall affix, apply, or annex, or use in connection with any goods or services, a false designation of origin, or any false description or representation … and shall cause such goods or services to enter into commerce … shall be liable to a civil action by any person … who believes that he is or is likely to be damaged by the use of any such false description or representation.
97. 538 F.2d at 24; Mortellito v. Nina of California, 335 F. Supp. 1288, 1294 (S.D.N.Y. 1972) (unregistered trademark).
98. 538 F.2d at 24.
99. Granz v. Harris, 198 F.2d at 588.
100. Prouty v. National Broadcasting Co., 26 F. Supp. 265, 266 (D. Mass. 1939).
101. 538 F.2d at 24. See Gardella v. Log Cabin Products Co., 89 F.2d 891, 895-96 (2d Cir. 1937) (use of name “Aunt Jemima”).
102. 538 F.2d at 24-25 (citation omitted). See Autry v. Republic Prods., Inc., 213 F.2d 667, 670 (9th Cir. 1954) (emasculation of work protected by Lanham Act); Jaeger v. American Int’l Pictures, Inc., 330 F. Supp. 274, 278 (S.D.N.Y. 1971) (mutilation of motion picture violates Lanham Act and N.Y. Civ. Rights Law § 51).
103. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554, 569 (1940), quoted in Gilliam v. American Broadcasting Cos., 538 F.2d 14, 24 (2d Cir. 1976).
104. 538 F.2d at 24.
105. Id. at 24, n.11; Rich v. RCA Corp., 390 F. Supp. 530, 531 (S.D.N.Y. 1975) (defendant acknowledged use of old songs).
106. Stevens v. National Broadcasting Co., 148 U.S.P.Q. 755 (Cal. Super. Ct.) (“It does appear to me on the evidence that is presented to this court that commercial interruptions of television may in the manner of their insertion result in emasculationing a motion picture so that the picture will no longer contain substantially the same motion and dynamic employment to produce.” Id. at 755), aff’d, 150 U.S.P.Q. 572 (Cal. Super. Ct. 1966); Preminger v. Columbia Pictures Corp., 148 U.S.P.Q. 398, 400 (N.Y. Sup. Ct.) (grant of television rights in film including right to edit and insert commercials did not include right to make changes which mutilate film), aff’d, 149 U.S.P.Q. 872 (N.Y. App. Div.), aff’d, 150 U.S.P.Q. 829 (N.Y. App. Div. 1966).
107. Mazer v. Stein, 347 U.S. 201, 219 (1954).
108. Mathews, Film Directors See Red Over Ted Turner’s Movie Tinting, Los Angeles Times, Sept. 12, 1986, § VI, at 1, col. 4.
109. Contra Justice Holmes view in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), where he stated that,
the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiff’s rights.
Id. at 252.
“A Coat of Paint on the Past? Impediments to Distribution of Colorized Black and White Motion Pictures” first appeared in 5 The Entertainment and Sports Lawyer Number 2, Fall 1986; reprinted in 1987 Entertainment, Publishing and the Arts Handbook published by Clark Boardman Callaghan.