Chapter 25

Colorizution and Artists' Rights: Whose Work Is It?

In the mid-l980s, technology brought a marvelous capacity to moviemaking. With the ability to convert film stock to digital format, changes to content could be made that appear seamless to the naked eye. Filmmaking techniques pioneered in Who Shot Roger Rabbit? were made dramatic in Rising Sun, Oscar-winning in Forrest Gump, prehistoric in Jurassic Park, and totally animated in Toy Story. Placed in the hands of directorial masters, the technology can revolutionize programs shown on television and in movie theaters.

“They're My Movies, and I'll Do Anything I Want to Them!”

But the precursor—or, in the view of many legendary directors, the curse—of the technology is its ability to change old films to please modern tastes. The most dramatic example of this development is the colorization of old black-and-white movies. The purpose, to make classic films palatable to the MTV generation, requires color tinting so that kids will keep the set on when classic films are shown. After Turner Entertainment bought the old MGM film library, consisting of 3,600 movies, about half of which were black and white, colorization had its P. T. Barnum in the person of Ted Turner.

Determined to turn his newly acquired library into a stable of films for new movie channels on cable, thereby increasing the product at a fraction of the cost of making new films, Ted Turner announced that the MGM classic film library was fair game for digital modification. “They're my movies, and I'll do anything I want to them!” declared the owner of the film library. His decision was greeted by expressions of outrage from many of the great names in moviemaking, such as Frank Capra, Jimmy Stewart, Woody Allen, and Steven Spielberg.

When first confronted with the challenge of raising their protests, the talented core of filmmakers had to understand the rules of copyright law, which the owners of movies had mastered over the years. The core of their problem was that virtually every classic film was not the solitary work of a lone individual but the collaborative effort of scores of people—performers, writers, directors, cinematographers, producers, film editors, set designers, composers, and on and on. Take a few minutes to read the credits at the end of a movie, and you will see how many folks it takes to create a film. Also with the credits is a notation, usually at the very end, that the producing company is the “author of the motion picture for copyright purposes.”

Under the work-for-hire system, all the employees involved in making a movie, even those whose inspiration, writing, and direction created it, are contractually employed. Most often, ownership of the work belongs to the company that pays the bills to make it. Unless the employment agreement provides otherwise, the copyright owner is allowed to change a work without regard to the interests of those whose names are attached to it. It is the rare filmmaker who has insisted or can insist on retaining postrelease control over the final product.

Mr. Stewart Goes to Washington: Debating the Berne Convention and Classic Movies

When the Directors Guild of America (DGA) determined to raise public consciousness about the changes being made to classic films, which they characterized as a native American art form, the U.S. Congress was debating joining the Berne Convention. As noted in Chapters 19, the Berne Convention is the preeminent international copyright treaty, a compact that dates back to the days of Victor Hugo and the French refinement of human rights principles. Central to the heart of the Berne Convention is Article 6bis and the principle of droit moral. Moral rights, as it is known, is the legal notion that an individual artist has the right to have his or her name associated with any artistic work he or she creates and to prevent alterations that harm the individual's honor or reputation.

For decades, key copyright interests, such as motion picture producers, had opposed the United States joining the Berne Convention solely because of the moral rights clause. Its impact on their ability to exploit films was very worrisome. However, to stem the tide of international copyright piracy, which was costing producers over $1 billion a year, and gain legal protections in key piracy strongholds such as Thailand and Egypt, accession to the Berne Convention became financially compelling to film producers and other copyright owners, especially software companies.

For the directors, who, along with screenwriters and cinematographers, are internationally recognized as the artistic “authors” of motion pictures, the Berne Convention debate afforded an opportunity to put the colorization issue center stage. By going to Washington, D.C. in the late 1980s, actors Jimmy Stewart and Ginger Rogers and directors Woody Allen, Sidney Pollack, Milos Forman, Steven Spielberg, George Lucas, and Elliot Silverstein forced the issue into the spotlight. Altering classic films without the permission or involvement of the artistic authors, just to fit the perceived interests of viewers, was, they declared, wrong. On the other side, producer interests feared success of the protest would diminish their ability to tailor films to key markets, such as television, cable, video, and airlines, as well as newly developing digital environments. Full moral rights for artists could substantially cut the value of their film library.

When the legislative dust had settled, the United States decided to join the Berne Convention, but Congress chose not to enshrine Article 6bis into U.S. law. Rather, it concluded that moral rights were already adequately recognized in a potpourri of American laws, including the derivative copyright right, Section 43(a) of the Lanham Act, and the laws of libel, slander, privacy, and publicity as well as state statutes. As an additional element of the Berne Convention compromise, Congress created the National Film Preservation Board, whose function is to identify and honor original versions of classic American films. Classic works, selected at the pace of 25 films per year by the Librarian of Congress, are duly praised, but only in their original versions.

The tension that surfaced during the colorization debate between artists, whose goal is to preserve their original works, and producers, whose goal is to gain maximum economic benefit from the art, endures. Proposals to force producers to tell the public how movies have been changed when they air on television or in video formats and whether the original artists object to the changes have been offered in Congress over the last few years.

Digital Changes Alter Movies

Most fundamentally, the issue bears on the relationship of the medium and the faithfulness of the message to the original artistic concept. While colorization is probably the most dramatic example, the relationship of technology and alteration of copyrighted film works is also spotlighted by

• Panning and scanning: the reduction of the aspect ratio (screen image) from the rectangular, wide screen to the square, television format.
• Time compression/time expansion: the practice of speeding up or slowing down frame speed.
• Lexiconning: the ability to alter pitch while changing film speed to keep the sound level constant and mask the speed changes.
• Morphing: the technique of digitally altering video.
• Editing: the decision to delete content for a variety of reasons, including fitting films into time slots and removing offensive words or nudity.

Informing Consumers: An Alternative Approach

Recognizing that engrafting full artists rights into the US. copyright system is an epochal challenge, film artists have proposed a half-step of informing the public about changes made to films by a label that would precede the telecast and explain how many minutes were edited out; whether the work was colorized, time compressed, morphed, or lexiconned; and whether the artistic authors (the director, cinematographer, and screenwriter) object to the changes. In response to the pressure, the studios and broadcast networks (ABC, CBS, NBC, and Fox) agreed to experiment with a modest notice to air before a televised version of a theatrically released movie. The studio's notice, which is voluntary and applies only to network telecasts of recently released films, informs the public that films were “edited to fit a time slot,” “formatted to fit a viewer's screen,” or “colorized,” without further details or artistic objection.

Although the producers believe this approach fulfills their obligations, a 1995 arbitration involving a Fox Network telecast of a movie raised questions about the approach. When Columbia TriStar licensed the Fox Network to telecast Thunderheart, a film about life and death on an Indian reservation, it allowed Fox to cut 22 minutes off the running time and speed up the movie by 6 minutes. All this was necessary to eliminate 25% of the film so it could run in a 2-hour movie block of time, permitting 30 minutes of commercials.

The film's director, Michael Apted, a noted British documentarian, saw tapes of the show and concluded the changes gravely mutilated the work. In making the movie, Apted and the screenwriter, John Fusco, had promised Native American participants that their story would be sensitively told and that their current life on the reservation would be related. Among the scenes cut for time were those that told that vital part of the story. Apted brought an arbitration complaint against the producer and won an order that required the distributor either to carry the full notice of changes and his objection or to replace the director's name in the credits with the pseudonym Alan Smithee. This name is a director's code to let critics and the public know that the director objected to the final cut. The studios chose to use the pseudonym and filed an appeal, which they lost.

Michael Apted was not the first to legally challenge alterations to his work. In the 1970s, ABC was sued by the creators of the Monty Python television program, who objected when the show was severely edited for a network telecast. In a decision based on Section 43(a) of the Lanham Act, the producers prevailed in convincing the court that the altered show misrepresented their work (Gilliarn v. American Broadcasting Companies). One of the judges even suggested that the Berne Convention's moral rights could be found embedded in Section 43(a).

As the Monty Python and Thunderheart cases demonstrate, the issue of moral rights reaches deeply into the conscience of the filmmaking, film distributing, and film watching communities. It foreshadows additional battles in this area. Every time a movie is panned and scanned, a photo cropped, a story edited, or a tape sped up, the issues of misrepresentation of the work and of discrediting the original artists are raised. Phrased another way: Who should the law recognize as the author of a work, and who should be entitled to control its fate in the marketplace? With digital technology now so refined, alterations are hard to recognize. The screen does not light up with the warning phrase: “Here's something that has been changed.” If anything, the alterations are seamlessly integrated into the original work, and the viewer is left with no appreciation of what has been done.

Copyright is essentially an economic interest in works. Moral rights are the noneconomic interests that involve individual artists and their reputations. While motion pictures and television shows are collaborative works, involving the active participation of many people, they represent a body of work honored in our time as art. To modify these creations without regard for the artistic elements violates the interest of artists. Alteration of art may also be decried as an alteration of history. I Love Lucy, The Honeymooners, and The Ed Sullivan Show were made in black and white. That is part of their public reality. Should they be colorized because more TV sets are in color? Doing so would certainly deny their originality.

One idea floated during the colorization debate may deserve to be revisited in the future, if the practice of materially altering works of film art persist. The idea, endorsed by one congressional committee, was to require that, if a new owner wants to change a work, then it should be prevented from calling the revised work by the same title. In this way, trademark law principles of properly identifying the source of a product counter the suggestion that the two works are identical. If Casablanca were colorized, then it simply should not be called Casablanca. To keep the original title while changing the underlying work, often against the expressed wishes of the artistic creators, reveals a lack of respect for the Berne Convention principle that an author's work embodies his or her reputation and that honor should be respected.

What is equally true is that the Berne Convention plays an increasingly important role in U.S. copyright policy. Because trade in copyrighted works constitutes one of the leading export commodities of the United States and is vital to the national economy, protecting works and halting piracy through the auspices of the Berne Convention is vital to maintaining the economics of the movie and television industries. Expanding copyright protection through changes in the treaty is a major policy goal of U.S. trade negotiators in the era of digital transmission. Finding the right balance between the economic concerns of the Berne Convention and the respect for the human element in the creation of art works will be the delicate balancing act of the coming years.

Visual Artists Rights Act

A footnote to the filmmaker's story involves a different group of artists—painters, printmakers, sculptors, and photographers. In response to more than 10 years of persistent effort, primarily by Senator Ted Kennedy, Congress amended the Copyright Act in 1990 to give visual artists a limited version of moral rights. An artist, during his or her life, whether the copyright owner or not, can control the use of his or her name with respect to works created and can prevent mutilation or distortion of the work that prejudices that artist's honor or reputation. The rights cannot be transferred, but they can be waived. The Visual Artists Rights Act (VARA) permits an artist whose outdoor sculpture or public mural falls out of contemporary favor to prevent the work from being removed or defaced. It can ensure that a photographer's picture is properly credited. VARA is a limited but nevertheless significant bow of U.S. copyright law to the Berne Convention obligations. Whether it will stand as the first interpretation of Article 6bis—r the only one—in the United States remains to be seen.