Moral Rights, Colorizations & The Romantic
When an artist creates, he expresses an opinion. Whether it be in the form of a painting, a photograph, a motion picture or in any written form, that opinion is of the artist, by the artist, and must be protected. In this, who and what entity financed or provided the means for its production should have no bearing and no relevance to the determination of ownership in the opinion produced.
Historically, France has been in the forefront of the protection of "droit moral" or moral rights. Indeed, even before the adaptation of the Berne Convention by most industrialized countries, France took upon itself to unilaterally grant "moral" protection to the artists and their creations regardless of the nationality of the artist or his work.1 The idea of taking an artist's product and alter it so as to "modernize" it is outrageous and offensive to the philosophical underpinnings of ownership of artistic works. Thus, the idea of placing color where color has not been, is an idea that even though it may have economic appeal, it is morally wrong to espouse. After all, any person would protest if their "opinions" were to be changed, under the pretenses of modernization in order to make the opinion more appealing. The "colorization" of older movies is just that: the changing of one's opinion so as to make it appealing to a larger audience, regardless of what and how the author of the opinion chose to so express himself. This affront to basic artistic rights, is exactly what the French courts and French law have been trying to prevent.
This paper plans to make an observation upon the French way of viewing moral rights and the protections the French society affords artists and their "opinions."
Moral Rights: A Definition
What are "moral rights"? This is the embodiment of the natural rights an artist has over what he has created.2Contrary to the United States' interpretation, "moral rights" or "droit moral" concentrates on the artist or the author of a work, while the word "copyright" refers to a non-author's rights to copy a given work.3The former stretches the rights of the author, while the latter strecthes that of the person using that work. In short, the moral right of an artist is "usually classified as a right of personality," which is not to say, the same thing as the right of paternity or property rights.4Thus, it is the personality of an artist that is sough to be protected and not necessarily his property rights in the work he has produced. This very distinction between the rights of an artist in his property, which is the artwork he has produced, and his rights to preserve his integrity and to control how his personality, his name and his being are exploited through that work, has led to four distinctive rights. The French idea of "moral rights" has been codified in 1957 into: 1) right of disclosure; 2) right of withdrawal; 3) right of paternity; and 4) right of integrity.5
Right of Disclosure is the right that gives an author the exclusive right to determine whether the work he has decided to create is complete; and the right to decide where and how he will reveal it to the public.6This right ensures that an author will remain in complete control of his work until he has decided that the work is ready and finished.7 That is, an artist's work will be considered created independently of any public divulgation, by the mere fact of the author's conception being realized, even if incompletely.8It is for the artist, and the artist alone to decide when his work has been finished and ready to be disclosed to the world.
Right of Withdrawal is a controversial right. It is the right afforded an artist to "recall" his work, even after disclosure has been made, when the work, in the eyes of the artist, no longer represent him as the person he is.9The French law gives an author an absolute right to withdraw their work as long as the motive for such a withdrawal is not pecuniary.10Of course, an artist will not be able to exercise such a right except on the condition that he indemnifies the person from whom the work is being withdrawn.11It is argued that this right is only theoretical12since once a work has been published, especially in the motion picture industry, many copies are made and the copies are distributed worldwide. Consequently, the withdrawal right in such an instance is of limited value; a limitation that leads an artist to create new work reflecting their new views.13
An author, according to the French Law "shall enjoy the right to respect for his name, authorship, and his work; a right that is attached to his person."14This right exists to protect an artist's name and reputation. That is the right of the author to have his name on a work of his own making; and, having his name not to be attached to a work he has not authored.15This Right of Paternity preserves an author's prerogative to have his name or likeness be attached to a work. Indeed, the name of an artist belongs to the artist and its attachment to an object, this law provides, must be made with the person's authorization.
Lastly, the right that is of most interest to the motion picture industry and the issue of colorization of work, in particular, is the Right of Integrity. This is the right an author has to prevent his work to be presented in a manner or context that is harmful to his reputation.16As part of the artist's "moral rights" this right remains with the artist at all times. It thus remains an obligation to any subsequent owners of the work to ascertain proper presentation of the work17and protect an artist against any distortion, or mutilation of his work.18
It is important to realize that, according to the French law, this right is perpetual, unassignable and comes with no time limitations19even if in practice the French courts have often honored contractual transfer or relinquishing of such a right by the artist.20It thus gives an artist, a very broad protection for his creation. In the motion picture industry in the U.S., such a right is consistently stepped on in Hollywood where ending of motion pictures are sometimes changed to be "happy endings,"21 or the formats are modified to fit one's television dimensions,22and any other changes that may make a work more sellable.
It is said that an author, or an artist for that matter, stands apart from all humanity.23The view that an author's view is a unique view of the world that surrounds him is relatively new and stems from the Romantic conceptions of authorship.24This view of authorship is radically different from that which has been the norm for thousand of years.25Indeed, prior to the Romantic view of an artist which focuses directly on the relationship of an author and his work, the Socratic view was that an artist is a mere artisan; he who is assigned to paint an object that has already been made by another artisan.26Thus, in the pre-Romantic view, an artist was far removed from the idea of the object of his endeavor,27and his claim of ownership to any right or protection was viewed extremely weak.
The Romantic views the artist as the person who, in his own unique way of thinking and evoking his emotions, has authored a work that no one else can author in the same way, and no one else can make a claim to it.28 Thus, the author becomes the central figure from which thoughts emanate and is the criteria by which the thoughts are to be judged.29This view, in short, is a celebration of genius,30or of pure vanity that places a mere mortal in the shoes of the Creator.
Consequently, the French concept of "Moral Rights" is more idealistic and more understanding of creation than the American view of the same.31This French view has led to the belief that an artist has certain personal rights, that is imbedded in natural law,32and that are distinct from his economic rights in the work he has produced. In fact, the American copyright law is "not primarily designed to provide a special private benefit" to creative artists, rather it aims, so we are told, at encouraging the dissemination of these works to the public.33
Considering these differences, the question then becomes one about the nature of these personal rights. Looking at the character, and the source of such thinking, two distinct philosophies become apparent in their endeavor to justify the presence of such a personal right.
Subjective v. Objective
The Subjective view of a personal right, attaches this right to the person of the artist and his subjective feelings.34Under such a view, the artistic worth, or the value of the art, whatever that may be and however that may be defined, is deemed irrelevant.35What is considered relevant, is the feelings of the artist, and the hurt that would be felt by such a person when his work has been distorted of defaced.36In essence, it purports to give an artist a right of action when his feelings have been hurt. Considering the fact that in life, one's feelings are constantly hurt, then such a view gives an over broad right of action to an artist. Indeed, the fact that this view concentrates on the subjective feelings of an artist, then it stands to reason that such a view would give an artist a right of action against an unkind art critic. Or, the new owner of a house would be enjoined from re-arranging furniture or the architecture of his dwelling because the previous owner of the architect's feelings could be hurt.37In sum, this view disregards the object of the artist's attention and focuses on the person of the artist and not the fruit of his endeavor.
The other more pragmatic approach is to view the personal right of an author and the process of his creation as a process in which the artist has externalized, for all to view, his personal experiences, ideas, feelings and soul.38Thus viewed, then the work of the artist becomes part of himself, presented outside of his self in an object that represents him. Thus, any affront to the work, becomes a direct affront to the artist.39Viewing the artist's personal rights in such a manner, one then can realize that it is perfectly normal for such a right to continue even after the death of the artist. Because, if the work is part of the artist, then the artist will live through his art, and even after death, any alteration to the art is an unwelcomed assault on the artist.40
The French view of the personal rights created under droit moral is somewhat similar to the Objectivist view of the personal right bestowed upon the artist by virtue of creation. Indeed, France is normally held up as a model for moral rights law41and generally is considered the birthplace of droit moral.42
To Woody Allen, "colorization" of films "is a `monstrous,' disgusting,' horrible,' `sinful,' `absurd,' `humiliating,' `preposterous,' and `insulting' mutilation and defacing of genuine works of art, in which computers are used to `doctor' and `tamper' with the `great originals,' thereby creating `degraded,' `cheesy,' artificial symbols of one society's greed."43To others, colorization is simply another new technological process that can be used for innovative purposes which includes colorizing films.44
In technical terms there are two process to bring into color that which has been shot in black and white. They are the Chromoloid process, which produced three prints of the film in red, blue and green and then combines these prints into a single color film; and the colorization process which generally involves the use of a computer to distribute hand picked colors through out each frame of a film.45
The way in which one views colorization and its legitimacy is effected by the way one views the process itself. In fact, if a person looks at the colorization process as simply a "painting by number" and basically as in coloring a coloring book, a mindless activity, then that person will subsequently view colorization as an activity not worthy of credit and void of any artistic effort.46
On the other hand, computers cannot act without the input of humans. Thus, if one is to view colorization as a process of choosing, assigning and applying color to a film then artistic decision making of the computer artist engage in such an application becomes apparent. Indeed, even with the use of sophisticated computers, colorization is a painstakingly slow47and very expensive process.48As such, if one is to view it, then the artistic judgment in the assignment of colors and hues reflects an artistic judgment worthy of credit.
Thus a controversy has been born between those who advocate strong moral rights, namely the right of integrity, and those who advocate their rights to derivative work of what has entered into the public domain. The European view, being true to the value to art and artistic rights, has been one of strong protection to the artists integrity right. Since such a right, as we saw above, is a personal, permanent and inalienable right, then, it does not matter if a work has entered the public domain. As far as the right of integrity of the artist is concerned, he still has a control upon what changes can be done to his work.
What is perfectly acceptable in the United States, Turner Corporation has found, may not be so acceptable in an environment where an artist has been given the respect he deserves, and the opportunity to preserve the integrity of the work he has created regardless of who or what entity financed or currently possesses the economic rights of the work. For many years, prior to the advent of color emulsion,49film makers and photographers used a silver emulsion that could only lead to monochromatic picture. In this, the artist had no choice since, black and white was the only choice technology could provide. This lack of choice was present until sometimes in the early 1940's when color films were introduced and the choice of color was added to the choices a director of a motion picture could make.
Color film is neither better nor worse than black and white, rather it is an esthetic choice a director makes to present his art form.50Indeed, black and white films present more than just the fact that there is no color, but, it represents a very distinct rules of lighting, contrast, framing and camera use.51Indeed, these difference and the fact that a movie may have been shot in black and white in an era where the choice of color had been available can strongly attest to a conscious decision made by a director to make use of the unique mood and aesthetic character possible only with the use of black and white film.52
Turner Entertainment Company (TEC) acquired the rights to "Asphalt Jungle," a 1950 John Huston movie, when it merged with Metro Goldwyn Meyer (MGM).53Once TEC so acquired the movie, in keeping with its policy, proceeded to add color to Huston's black and white movie; and entered into an agreement with the French television channel, La Cinq, to broadcast the modern version of the movie.54Subsequently, Huston's heirs and the screenwriter, moved to prevent the broadcast of the altered work.55
In ruling in favor of the Plaintiffs, the Supreme Court held that the "integrity of a literary or art work cannot be affected in France, regardless of the state in whose territory the said work was made public for the first time."56The Court noted that the Section 6 of the Law of 11th March 1957, is the textual support for the right of integrity.57It provides that "the author enjoys the right to respect for his name, his status, his work--this right attaches to his person and may be transmitted to the author's heirs after death.58
Further the Court made much of the fact that colorization is not an adaptation or an original work in an of itself both in expression and composition, rather it is a modification of the original work, that adds a new element of color to the work--an element that was not part of the original artistic conception.59Moreover, the fact that the black and white movie was made at the time when color was available to the artist, and therefore, the motion picture in question was filmed in black and white (and not in color) following a deliberate aesthetic choice, which the author considered to be the best for the work.60Therefore, the Court concluded, the colorization was indeed a violation of the moral right of the author, and its use without the agreement of the Plaintiff caused damages.61
The French Court upheld public policy, and prevented an abuse to the detriment of third parties and emphasized the fact that, even though economic rights may be granted, and given away, the moral rights, and specifically the right to preserve the integrity of work will not, in the absence of an express agreement to do so, be transferred to another person or entity. It is interesting to see that the French Court, in reaching its decision used the French Law and not the US law. Indeed, the Court expressly cited the Section I of Law 64-689 whereby it is recognized that even thought French law may not apply to works not released for the first time in France, such laws are still applicable as far as the integrity of the author is at issue.62Thus, even thought TEC may hold the economic right to exploit the movie and rip an economic benefit from its existence, the French law, and the morality it represents, prevents TEC from changing, mutilating and defacing a great work in order to maximize TEC's profits.
"If it ain't broke, don't fix it" said Jimmy Stewart on the process of colorization.63The problem with this process is two fold. First, adding color cannot make a film better, or improve its content. Second, it is an assault on the every single aspect of a black and white production: the lighting, sets, costumes, make-ups and photography.64In fact, it is an assault against all the artistic choices a filmmaker has made. This assault is even more of a butchery when a black and white movie was made during a time when the choice of color film was available to the director.
In essence, it is a process that is offensive to the moral rights of an artist whether it is recognized in the laws of a country or not. In France, such a right has been recognized, and has been interpreted to protect the artist and to prevent him to be humiliated when an entity, which through time has come to own the economic rights of a work, decides to "get creative" at the expense of the original artist. The right to exploit a work in a pecuniary fashion, does not equate itself to the right of exploiting an artist's "being."
The French law acknowledges the fact that even though a person received some benefits in exchange for transferring the economic rights to the intellectual property, this does not in and of itself eliminate all the rights that the person has against the transferee.65Indeed, the right of seeing his work remaining intact is one that will stay with the artist, at least, throughout his life.
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1 Professor William MacGrath's lecture, International Copyright Law, April 24, 1998.
2 G. Brent Sims, Droit Moral in Motion Pictures, available on-line at <http://www.lowyzucker.com/page2/copyr.html>.
3 Herbert R. Lottman, Copyright: Europe's Extension of Protection Keeps Lawyers Busy, 242 Publishers Weekly 12, May 15, 1995.
4 John Henry Merryman & Albert E. Elsen, Law, Ethics, and The Visual Arts, 144 (1987).
5 Daniel McRendree Sessa, Moral Right Protections in the Colorization of Black and White Motion Pictures: A Black and White Issue, 16 Hofstra L. Rev. 503 (1988).
6 G. Brent Sims, Droit Moral in Motion Pictures, available on-line at <http://www.lowyzucker.com/page2/copyr.html>.
7 Daniel McRendree Sessa, Moral Right Protections in the Colorization of Black and White Motion Pictures: A Black and White Issue, 16 Hofstra L. Rev. 503, FN30, (1988).
9 G. Brent Sims, Droit Moral in Motion Pictures, available on-line at <http://www.lowyzucker.com/page2/copyr.html>.
11 Daniel McRendree Sessa, Moral Right Protections in the Colorization of Black and White Motion Pictures: A Black and White Issue, 16 Hofstra L. Rev. 503, FN31, (1988).
14 Id FN 32.
15 G. Brent Sims, Droit Moral in Motion Pictures, available on-line at <http://www.lowyzucker.com/page2/copyr.html>.
18 Anthony D'Amato, et.al., International Intellectual Property Anthology, 120 (1996).
20 Anne Marie Cook, The Colorization of Black and White Films: An Example of the Lack of Substantive Protection for Art in the United States, 63 Notre Dame L.Rev. 309, FN50 (1988).
21 In 1985 writer and director Terry Gilliam screened his black comedy Brazil in violation of contractual terms with MCA-Universal in order to lobby to keep the original dark ending. Id. Indeed, Brazil's ending as shown in movie theaters in Europe, and in movie houses in U.S. is somber and tragic. It shows happiness which has ensued from an escape from the torture chambers has been nothing but a dream, and that in fact the torture is about to begin. In the television version, that ending has been changed. The movie "ends" with the escape, leaving the viewer in the false impression that the protagonist has escaped the dark torture chambers. This new "ending" in fact changes the entire meaning of the movie.
22 Most movies shown on television and/or rented from leasing rental houses are modified to fit the format of one's television. This practice has led to protests by directors to a practice known as "panning and scanning" in which the original wide scene is cut in several scenes. This method was introduced around 1961 as a result of the network television's refusal to show the equivalent of letterbox films, based on a belief that viewers prefer a picture that fills the entire television screen. This method translates itself in a process whereby the wide screen image is successively recomposed by a camera which scan the width of the image possessing full height but missing the sides. The rule of thumb is for panners to follow the action, which is holding on whoever is speaking or following the movement of a particular character. See, Technological Alteration to Motion Pictures and Other Audiovisual Works: Implication for Creators, Copyright Owners, and Consumers, 10 Loy. Ent. L.J. 1, 37 (1990).
23 Anthony D'Amato, et. al., International Intellectual Property Anthology, 114 (1996).
26 Id at 115.
31 Id at 125
32 Carl H. Settlemyer, Between Thought and Possession, Artist's "Moral Rights" and public Access to Creative Works, 81 Geo. L.J. 2291, 2203 (1993).
33 Id at 2308.
34 Lawrence Adam Beyer, Internationalism, Art, and the Suppression of Innovation: Film Colorization and the Philosophy of Moral Rights, 82 Nw. U.L. Rev. 1011, 1085 (1988).
37 There are several major flaws to this view. It is too broad because it would justify the protection of all innovations and not just artistic or culturally veneered ones. Thus, is it right to allow artists to hurt the feelings of the general population, as they constantly do, but to protect them against being hurt by the public in return. Moreover, if the protection is for the artist's feelings, then what happens after the artist dies? Is it then permitted for his work to be defaced? Would worrying about the after death events during his lifetime permits an artist to sue someone? All this are illustrative of the flow of this view of personal right of the artist. Id at 1086.
38 Id at 1090.
39 Objectivists views of author's personal rights, to the extent they suggest that authors' work are extensions or embodiments of authors' persons, overcomes in theory some of the basis flaws of subjectivist notions. [...] Id. at 1091.
40 Lawrence Adam Beyer, Internationalism, Art, and the Suppression of Innovation: Film Colorization and the Philosophy of Moral Rights, 82 Nw. U.L. Rev. 1011, 1090 (1988).
41 Anthony D'Amato, et. al., International Intellectual Property Anthology, 120 (1996).
42 Waiver of Moral Rights in Visual artworks, March 1, 1996, at 38.
43 Lawrence Adam Beyer, Internationalism, Art, and the Suppression of Innovation: Film Colorization and the Philosophy of Moral Rights, 82 Nw. U.L. Rev. 1011, 1019 (1988).
44 Id at 1028.
45 Id at FN87.
46 Michael Sissine Wantuck, Artistic Integrity, Public Policy and Copyright: Colorization Reduced to Black and White, 50 Ohio St. L.J. 1013, 1014 (1989).
47 A computer artist has to initially color a single frame of a film, assigning one of some 50,000 available hues to each of the 525,000 pixels, or dots, which my comprise any given frame. Once this frame has been colored, then the computer keeps track of each object as it moves from frame to frame, but only until the scene changes. At that point the whole process must be repeated. I is not unusual to spend several hours to complete just one minute of film. David J. Kohs, Paint Your Wagon--Please!: Colorization, Copyright, and the Search for Moral Rights, 40 Fed.Comm. L.J. 1, 4 (1988).
49 Emulsion is the light sensitive chemical ingredient placed upon a thin layer of film. In color, there are three such layers each representing one of the three primary colors. In black and white, only one layer of silver coating is present. (NT)
50 Daniel McRendree Sessa, Moral Right Protections in the Colorization of Black and White Motion Pictures: A Black and White Issue, 16 Hofstra L. Rev. 503, FN22, (1988).
51 David J. Kohs, Paint Your Wagon--Please!: Colorization, Copyright, and The search for Moral Rights, 40 Fed. Comm. L.J. 1, 7 (1988).
53 Turner entertainment Co v. Huston, 16 Ent. L. Rptr 10:3 (Versailles s1995).
56 Id. (171)
57 Daniel McRendree Sessa, Moral Right Protections in the Colorization of Black and White Motion Pictures: A Black and White Issue, 16 Hofstra L. Rev. 503, FN32, (1988).
58 Turner entertainment Co v. Huston, 16 Ent. L. Rptr 10:3 (Versailles 1995).
59 "Colorization" is a technique based on the use of computers and laser and it makes it possible, after transferring the original black and white tape onto a videographic media, to give color to a film which did not originally have color, the application of this process is no vent to be considered an adaptation, defined as "an original work both in its expression and its composition," even it if borrows formal elements from the pre-existing work; [...] Id.
62 Section I of Law No-64-689 reads: "subject to the provision of the International Conventions to which France is a party, in the event that it is noted, after consultation of Minister of Foreign Affairs, that a State does not provide adequate and effective protection for works disclosed for the first time in the territory of the said state shall not benefit from the copyright protection recognized by the French law. However, the integrity or authorship of such works may not be violated (Emphasis added).[...] Id.
63 Jimmy Stewart, In Black & White, available on-line at <http://220.127.116.11/stewart.htm>.
65 Sheri Lyn Falco, The Moral Rights of Droit Moral: France's Example of Arts as the Physical Manifestation of the Artist, available on-line at <http://www.degrees.com/melon/archive/moral.html>.
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