overview

legislation

colorization

Europe

N America

Australia

online

landmarks

























related
Guides:

Intellectual
Property





related
Profiles:

Identity
Crime

Forgery
& Fraud

     colorizations and circuses

This page considers moral rights aspects of films and television programs, addressed in Europe under moral rights law and in the US under 'passing off' provisions or as the unauthorised creation of a derivative work.

It covers -

• introduction - film as an exemplar of moral rights disputes?
• colourisation - litigation about digital recolouring of b&w masterpieces
• interruptions - damage to integrity through ad breaks on tv
• editing - does slicing, dicing and bowdlerising film and video programming destroy its integrity?
• repudiation - Alan Smithee and friends

     introduction

In discussion elsewhere on this site regarding communications revolutions we have commented that film can lay claim to being the art form of the 20th century. It is one that lies at the intersection of individual creativity, industrial production and major capital investment in a distribution chain that stretches from the scriptwriter's desk to the remainder bin outside the local DVD rental shop and the vaults of the film archives.

Disagreement about the moral rights of the makers of film is thus not very surprising. That disagreement illustrates different attitudes to rights principles and practice in Europe and in the US. It has centred on -

• digital 'colorization' of black & white feature films
• 'letterboxing' and other formatting changes to feature films
• editing by broadcasters, distributors and other entities that damages the integrity of a feature film or other work
• damage through the insertion of commercial advertisements and other extraneous content during broadcasts of films and other works

It is also evident in workarounds such as US film makers attributing to 'Alan Smithee' (or another pseudonym) those works with which they do not wish to be associated, ie a disavowal of paternity.

It has resulted in film makers resorting to litigation under contract law, moral rights law and even 'passing off' provisions of the Lanham (trademark) Act in the US. Differences in legal regimes mean that auteurs such as John Huston have secured greater protection in France and Italy for films made in the US than are available in the US itself under that nation's very weak moral rights regime.

     colourisation

Arguably US perceptions of moral rights centre on 'colorization' of black & white feature films, rather than the Visual Artists Rights Act discussed later in this note.

Colorization became an issue when digital technologies gave studios the ability to edit historic films, changing them from monochrome to colour. Editing was defended on the grounds that it was necessary for contemporary television and video rental/sale markets and as a way of enhancing the balance sheets of indebted media conglomerates.

It remains contentious, however, because as film scholars have noted, both auteurist directors and some studios during the 'golden age of Hollywood' intended films to be seen in black & white. That involved judgement about such matters as lighting, editing and even film stock. Conversion to colour necessarily distorted subverted that judgement, with results that are sometimes grotesque. John Huston (1906-1987) for example, in decrying colorisation of his The Maltese Falcon, commented that

I shot it in black and white the same way a sculptor chooses between clay, bronze or marble.

As a condition of work Huston, like most of his peers in the US, had waived implicit moral rights. In the US he had no explicit moral rights as maker of a film and the copyright owner of his works - for example Ted Turner - was free to embark on colourisation of existing film libraries.

Under international law US films enjoyed the same treatment under French law as French films. In 1959 Charles Chaplin had successfully invoked his moral rights to prevent distribution in France of a version of his silent masterpiece The Kid that had been 'enhanced' through addition of a musical accompaniment (Judgment of 29 Apr. 1959, Cour d'appel, Paris, 1959 D. Jur. 402)

That precedent was reflected in 1988 litigation by Huston's heirs (including actress Anjelica Huston) against colourisation and broadcast of his The Asphalt Jungle. Turner Entertainment as colorizer of the film and French network la Cinq for broadcast of that film. The court held in 1991 that although the director had waived his rights in the US through his initial contract with the producer, in France his moral rights were inalienable and lasted beyond his death (Judgment of 28 May 1991, Cass. civ. 1re, 1991 Bull. Civ. I 113). Huston was the film's author and through his estate was entitled to assert those rights, gaining damages of F600,000. The court commented that colourisation of the film against Huston's wishes violated French law

which protects the integrity of a literary or artistic work irrespective of the jurisdiction in which it was first published, and recognizes that the author is invested with the droit moral in that regard by virtue of the sole fact of his creative effort.  

Turner was fined some US$74,000 plus costs, with the broadcaster being ordered to pay US$37,000 (22 International Review of Industrial Property & Copyright Law, 1991). The decision was upheld in 1994 (Judgment of 19 Dec. 1994, Cour d'appel, Versailles, 1995 D.S. Jur. (IR) 65).

Fred Zinnemann (1907-1997) similarly protested the 1996 broadcast by Italian network TV Internazionale (TeleMontecarlo) of a colorized version of his 1944 The Seventh Cross. He had appeared before Congress in 1988 to urge adoption of moral rights legislation, commenting that

exist laws which protect all sorts of work by all sorts of artists: writers, painters, composers, sculptors, photographers. Why are filmmakers not protected in the same way? Films are not just the property of the copyright holder; they are part of our heritage. Future generations must have the right to see them in the original form.

The colorized version was aired again in 1997. In 1999 his son sued the network for breach of Zinnemann's moral rights. In November 2005 an Italian court ruled in his favour, prohibiting further broadcasts. It found that the director had chosen to film The Seventh Cross in black and white (Technicolor was available at that time) and that colorization clearly harmed his artistic integrity.

The station was ordered to pay damages and destroy its colorized copies. The order was not, of course, binding on bodies outside the court's jurisdiction and a colorized version of the film could be legally broadcast in the US.

Zinnemann was supported by the Artists Rights Education & Legal Defense Fund Council, legal advocacy arm of The Film Foundation (founded by Martin Scorsese in 1990 to preserve classic films ).

For an overview of the EU regime see in particular Pascal Kamina's Film Copyright in the European Union (Cambridge: Cambridge Uni Press 2002), Jane Ginsburg's cogent 'Colors in Conflicts: Moral Rights and the Foreign Exploitation of Colorized U.S. Motion Pictures' (36 Journal of the Copyright Society, 1988), Raphael Winick's 1997 article on Intellectual Property, Defamation & the Digital Alteration of Visual Images and the forthcoming Moral Rights (London: Sweet & Maxwell 2006) by Kevin Garnett & Gillian Davies.

Debate in the US features in Michael Landau's 'Colourization, Copyright & Moral Rights: A US Perspective' (5 Intellectual Property Journal, 1990), Gary Edgerton's 'The Germans Wore Gray, You Wore Blue: Frank Capra, Casablanca, and the Colorization Controversy of the 1980s' (27 Journal of Popular Film & Television, 2000) and Ron Renberg's 'The Money of Color: Film Colorization and the 100th Congress' (11 Hastings Communications & Entertainment Law Journal, 1989).

Other works include Ysolde Gendreau's 'The Continuing Saga of Colourisation' (7 Intellectual Property Journal, 1993), Janine McNally's article on Congressional Limits on Technological Alterations to Film: the Public Interest & the Artists' Moral Right, the 1989 Library of Congress (Copyright Office) report on Technological Alterations to Motion Pictures: Implications for Creators, Copyright Owners, and Consumers, Craig Wagner's 1989 'Motion Picture Colorization, Authenticity and the Elusive Moral Right' (64 New York University Law Review, 1989) and Elise Bader's 'A Film of a Different Color: Copyright and the Colorization of Black and White Films' (5 Cardozo Arts & Entertainment Law Journal, 1986).

     interruptions

Auteurs have gained less attention in criticism of broadcasting practice, in particular claims that the integrity of feature films and other works such as documentaries is eroded by the insertion of advertising breaks during release on free-to-air and pay-per-view television. Does recurrent interruption constitute distortion of and disrespect for the author's creativity and for that of any performers?

Some have simply refused to allow release of works for viewing on television, forgoing revenue and some recognition. Others have sought to impose conditions on broadcasters - a tactic that does not appear to have been particularly successful and thus not widely adopted - or have simply hoped that a carefully cultivated mood would not be shattered by recurrent raucous interruptions from vendors of hamburgers, automobiles, aluminium cladding and other consumer ephemera.

There have been few law suits in Europe, typically attributed to the cost of litigation (in time and money) and broader inconvenience. As one contact commented to us, litigation over moral rights requires a certain bloodymindedness - most film makers concentrate on making the next film rather than spending time in court or a lawyer's office.

In 2006 a Swedish appeals court ruled in favour of film makers Vilgot Sjöman (1924-2006) and Claes Eriksson, who had taken dominant commercial broadcaster TV4 to court for infringement of their moral rights through inclusion of ad breaks in broadcasts of their films. Prior to 2002 the Swedish Radio & Television Act prohibited commercial breaks during broadcast of films or other programming. TV4 took advantage of changes to the legislation by placing ads in broadcasts of films by Sjöman and Eriksson, rather than clustering them at the end of the broadcast. The film makers, with support from creator rights organisation KLYS, gained an initial judgement in the City Court of Stockholm during 2004. The Court agreed that under the Berne Convention the makers of a film have the right to object to any distortion, mutilation or other modification of the work which would be prejudicial to honour or reputation.

TV4 appealed, arguing that breaks were in accord with European practice. In April 2006 the Appeals Court ruled in favour of the film makers, awarding them costs of around 476,000 Krona. It noted that rightholders "must be prepared to accept unimportant changes which do not affect the general view of the work" but went on to comment that "addition of commercial breaks to the films has meant a violation of the creators' moral rights".

the interests that lie behind the commercial breaks are not of such a nature that, when establishing what objectively should be seen as acceptable, they should take precedence over the interests of the rights' holder that his work should not be shown in a form that he considers a violation. ... it is obvious that the commercial breaks treated of here not only have interrupted the continuity and the dramaturgy of the cinematographic works but have also introduced settings that are alien and unmotivated. In one case, the commercial breaks have further meant that the sought-after dramatic effect of switching between two scenes has been removed.

The decision is not binding on courts across Europe but may have persuasive value. It follows acceptance in Italian law that insertion of ad breaks in a broadcast of a film might infringe the director's moral rights, depending upon frequency of those breaks, their length and their placement.

     editing

Other authors have objected to inept editing of their works.

The landmark case in the US is also an isolated one, with little if any discernable effect on broadcasters in that country. In 1976 the US Federal 2nd Circuit held, in Gilliam v American Broadcasting Company (538 F.2d 14, 1976) that the ABC television network had created an unauthorised derivative work through editorial removal of almost a third of running time of episodes in the UK comedy series Monty Python's Flying Circus.

The series had been developed for broadcast by the BBC, with an agreement specifically prohibiting any substantial edits without express permission from the makers. The agreement enabled the BBC to license the series to other broadcasters, an option taken up by Australia's ABC and by the US Time Life group, which in turn licensed the programs to the US ABC commercial network. The BBC and Time Life were not able to authorise 'material changes' to the series. The network, however, heavily edited the programs to make room for commercials in two 90 minute specials and to delete what was claimed to be " offensive or obscene matter". That slash and burn approach, although consistent with butchery of some past UK imports, meant that punch lines were omitted and sketches became meaningless rather than zany.

The Pythons, led by Terry Gilliam (later responsible for works such as Brazil) took action under section 43(a) of the Lanham Act, claiming that the broadcaster had falsely represented the origin of the series. That claim reflected the severity of the editing - characterised by Gilliam as a "mutilation" - and ABC advertising of the series as Monty Python's Flying Circus without an indication that it had been "butchered". They sought damages, along with prohibition of rebroadcast and any further editing by ABC.

Associating the authors with such a distorted version of their work - a distortion that was not authorised under the BBC agreement - was of particular concern as US audiences, being unfamiliar with the work and UK reviews, would presumably judge the series and its authors unfairly. The Court agreed, holding that ABC falsely attributed authorship of the edited work (a "false designation of origin") and thus misrepresented the series in violation of federal trademark law. It also found that Monty Python's reputation suffered damage from the edited version, which "did not fairly represent the artists".

Perceptions that the Lanham Act could provide an effective moral right of attribution for film were however shaken by the Supreme Court's 2003 decision in Dastar v. Twentieth Century Fox (539 S.Ct. 23, 2003) (PDF).

Video company Dastar had blithely repackaged a Twentieth Century Fox documentary series, relying on registration quirks in US law. The Supreme Court, in reversing a decision by the Ninth Circuit that had awarded substantial damages to Fox, held that 'origin' under the Lanham Act related to the producer of the tangible goods offered for sale rather than to the author of the idea contained or otherwise embodied in those goods (ie the initial video content).

It commented that the Act serves to protect consumers from confusion in the marketplace caused by false claims from manufacturers, in contrast to protection of authors under copyright law, and does not provide a right of paternity to filmmakers whose work was unregistered.

Dastar is discussed in Justin Hughes' cogent 2004 paper American Moral Rights and the Dastar Decision and Jane Ginsburg's The Author's Name as a Trademark: A Perverse Perspective on the Moral Right of 'Paternity'? (PDF).

Other film makers have objected to bowdlerisation by video rental groups and distributors. The Utah-based CleanFlicks group for example boasted in 2002 that it had excised all potentially offensive language, violence and immodesty from Hollywood films, blithely explaining that there was no problem because studios received an upfront payment and that

Once you create a product and put it out there for sale, you are essentially giving up your rights. You don't own that copy anymore.

The Directors' Guild of America unsurprisingly disagreed, with suit and countersuit in that year involving directors such as Robert Altman, Martin Scorsese and Steven Spielberg. Action by the DGA provoked a charge of directorial hypocrisy: "this lawsuit comes from those who will change the beginning, middle, end and every other part of a book they turn into a movie".

Copyright gadfly Siva Vaidhyanathan sniffed at laments about censorship, claiming that

We're seeing massive empowerment at the ground level, the sort of empowerment that frightens the elite. It messes with artistic integrity, but allowing people to make their own artistic decisions in their homes can only help to deflate the artistic pretensions that guide too much of our gut reactions to copyright.

Others were less supportive, questioning whether censorship by a commercial intermediary was empowering and noting that it privileged bowdlerisation over the moral rights of the film makers and performers.

In July 2006 US federal judge Richard Matsch apparently agreed, commenting that the court

is not free to determine the social value of copyrighted works ... What is protected are the creator's rights to protect its creation in the form in which it was created.

Matsch's decision in favour of the film makers will presumably be appealed, further extending six years of litigation.

Techniques such as lexiconning and letterboxing have also attracted criticism.

Letterboxing was developed to accommodate the difference between the shape of rectangular movie theater screens and most television screens. Through editing the size of the original rectangular image is reduced, with dark bands above and below the picture filling out the square shape of the television set to maintain the original aspect ratio of the film and thereby respect its theatrical composition.

In contrast, panning and scanning involves recomposition of a widescreen image, excluding characters at the edge of the screen image and substantially altering some compositions. Lexiconning increases the speed of a film (typically in hundredths of a frame per second) and thereby enables reductions in running time of around 7%.

     Alan Smithee

Some film makers have sought to disassociate themselves from works that they consider have been mutilated by studios. That denial of paternity has often taken the form of use of a pseudonym - such as the prolific Alan Smithee or Allen Smithee ('active' between 1968 and 1999) - although studios have sometimes used contract provisions to prevent disavowal by a director, screenwriter, composer or other figure.

The Smithee phenomenon is explored in Directed by Allen Smithee (Minneapolis: Uni of Minnesota Press 2001) edited by Jeremy Braddock & Stephen Hock.

   next page  (moral rights in Europe)