RULING ON COLORIZING A BLOW TO DIRECTORS

In the federal government’s first major action on the controversial issue of “colorizing” classic black-and-white movies, the Library of Congress’ Copyright Office ruled Friday that some of the new versions of the films may be copyrighted.

The decision, a significant blow to the Hollywood creative community that has resisted the new colorizing technology, appears to clear one legal hurdle for further color conversions of older motion pictures, including such classics as “Mutiny on the Bounty” with Clark Gable, “Destination Tokyo” starring Cary Grant, Jimmy Cagney’s “White Heat,” Humphrey Bogart’s “Casablanca,” Katharine Hepburn’s “The Philadelphia Story” and Gary Cooper’s “Sgt. York.”

Copyright officials said they expect to register between 50 and 100 colorized motion pictures and television programs in the next year.

“Now the major obstacle to legal acceptance of color conversion has been overcome,” said Charles Powell, executive vice president of Marina del Rey-based Color Systems Technology Inc., a firm that has pioneered the new color-conversion process. “We’ve known all along that nobody likes the decision (to colorize) but the public. The public is asking to choose, and the Copyright Office has said, ‘Go right ahead.’ ”

Noted film director John Huston, who made a rare personal appearance earlier this year to criticize the coloring of his classic “The Maltese Falcon,” said: “My only comment is any four-letter word you can think of.” And, said director Woody Allen: “It is a manifestly unfair thing to take somebody’s work, color it and take it as your own. . . . We’ll have to continue to fight against it.”

The Copyright Office said in its ruling Friday “that certain colorized versions of black-and-white motion pictures are eligible for copyright registration as derivative works.”

According to the decision, copyright protection will be granted as a “derivative work” if the new colorized versions contain “a certain minimum amount of individual creative human authorship and are produced by existing computer-coloring technology.” The new copyrights will be in effect for 75 years.

The Copyright Office also said that registration will be denied for films in which only a “relatively few” colors are added to an existing black-and-white motion picture and for films that are multiple color versions by the same firm of the same basic work.

“The general standard for determining whether color added to a black-and-white motion picture is sufficient to merit copyright protection is the same statutory standard that already applies to all derivative works,” the office said in a 14-page ruling signed by Ralph Oman, register of copyrights and Daniel J. Boorstin, the Librarian of Congress.

The colorization of films has become a highly controversial one that has pitted directors and actors against media entrepreneur Ted Turner and other film library owners who want the new colorized versions for a new generation of television and video viewers. The controversy even became the subject of a Senate hearing last month that drew Woody Allen, Sydney Pollack, Ginger Rogers and others to complain about the colorized versions.

Rep. Richard A. Gephardt (D-Mo.) has introduced legislation that would give screenwriters and directors the rights to control what happens to their films.

A spokesman for Turner said: “Obviously, we’re delighted. We think it’s a real victory for color conversion.”

In its decision, the Copyright Office noted that the registration for copyright protection will cover only the new material--the selections of color that are added to the original black- and-white film.

The copyright status of the original film is unaffected, the ruling said, adding that the original black-and-white film will remain in the public domain “as dictated by its own copyright term.”

“When an underlying work is in the public domain, another party is free to use that work to make a different color version which may also be eligible for copyright protection,” the office said.

In the case of films not in the public domain, officials of the Copyright Office said, permission to make colorized versions of films would have to be authorized by those who hold the copyright for the original black-and-white version.

As part of its ruling, the Copyright Office will seek public comment for 30 days on a proposal that those seeking copyright protection for the new colorized versions be required to deposit one copy of the computer-colorized film as well as one copy of the original black-and- white print from which the colorized version was made.

The Copyright Office began reviewing the colorizing controversy after it received the colorized versions of 10 motion pictures and one television program between 1985 and 1986 from companies including Hal Roach Studios, Walt Disney Productions and 20th Century Fox Studios.

The office then issued a notice of public inquiry on the subject and received 46 comments.

In their filings, supporters of the the computer-colorization process maintained that the new color-enhanced films satisfied the copyright protection requirements and they argued that the creation of a computer-colored version is a process that involves individual creative human authorship and requires an amount of technical or artistic judgment that meets copyright law standards of original, creative expression.

While a number of the comments opposed the new colorized versions for aesthetic reasons, the opponents also argued that colorization is a technical process that does not have sufficient human authorship to merit copyright protection.

An existing Copyright Office regulation specifies that the use of mere variations of color does not qualify for copyright protection. However, the regulation does not preclude registration “where the work contains some other elements of originality such as the original arrangement or combination of colors,” the office said.

To qualify for copyright protection, the Copyright Office has specified the following criteria for the new colorized films:

--Numerous color selections must be made by human beings from an extensive color inventory.

--The range and extent of colors added to the black-and-white work must represent more than a trivial variation.

--The overall appearance of the motion picture must be modified; registration will not be made for the coloring of a few frames or the enhancement of color in a previously colored film.

--Removal of color from a motion picture or other work will not justify registration.

In addition, the decision reaffirmed its existing prohibition on copyright registration based on mere variations of color.

The ruling applies only to films where the color has been added through colorization process used by Colorization Inc. and Color Systems Technology. In this process, a computer operator colorizes one frame in a scene and a computer colors the remaining frames. The process requires operators to color scenes when ever changes occur, such as the appearance of a new character.

The Copyright Office said its decision does not apply to the chromoloid process for colorizing films because no films colorized using this process have been submitted to the office for registration.

In the chromoloid process, a fine grained black-and-white positive print is reproduced by an optical printer in three distinct prints of red, blue and green. The prints are then combined into a single full color film.

The Copyright Office, a part of the Library of Congress, handles more than 500,000 claims for copyright registration annually, including books, motion pictures, videotapes of choreographed works and cassette recordings. The office also is responsible for keeping the records of fees paid by jukebox operators and cable-television owners for their use of copyrighted works.

Also contributing to this article were John Voland and Times interns Carrie Yoshimura of USC and Julie Tilsner of San Jose State University.