How ‘Kane’ Triumphed Over Turner in B&W; : Orson Welles’ RKO contract was too good for its time, and too tough for the colorizers to break

In an interview Orson Welles gave to two Spanish journalists in 1965, not long after his “Citizen Kane” had been acknowledged in a critics’ poll as the greatest film ever made, Welles both boasted about and bemoaned the unprecedented personal power that had allowed him to make his masterpiece.

“My problems with Hollywood started before I got there,” Welles said. “The real problem was that contract. . . . Never has a man been given so much power in the Hollywood system. An absolute power. And artistic control.”

Welles, who was 23 and had never been on a sound stage when he was signed by RKO Pictures in 1939, said he regretted having so much power so soon and felt that the relative commercial failure of “Citizen Kane” assured his never having such creative freedom again.

But if he lost his power, the language of that RKO contract was still pumping out enough voltage last week to jolt officials at media baron Ted Turner’s Los Angeles-based Turner Entertainment Co. into reversing their decision to colorize “Citizen Kane.”

Whether that reversal is a singular setback in a program that has already seen such classics as “Casablanca” and “The Maltese Falcon” go from black-and-white to a rainbow of computer-ordered colors, or a harbinger of tougher times ahead, it was cause for momentary rejoicing among colorization foes.

“Winning (this fight) is the first successful shot in a war I think we can now win,” said independent film maker Henry Jaglom, a protege of Welles and a member of the Directors Guild of America committee set up to combat colorization. “I was feeling defeated until this.”

Jaglom said he had read Welles’ contract, as well as letters between the late director and RKO executives, and that the creative control was “total.”

“He had control over the look of the picture, the sound, the music, cinematography--it was a sweetheart contract nobody at that time had,” said Jaglom, adding that he called Turner officials several weeks ago to threaten a law suit if they sent “Citizen Kane” to the paint shop.

Other Alterations

Now that the film’s black-and-white integrity seems preserved, the question is whether it can be useful in the directors’ long-range fight against colorization and other commercially expedient alterations routinely made on films that are not contractually protected against them. The alterations include “time compression,” the process of speeding up a film to squeeze it into a tighter time period, panning and scanning, by which wide-screen images are “squared off” for TV presentation, and post-release editing, where films are actually re-edited for television or video release.

Arnold Lutzger, the DGA’s Washington-based attorney, said he has mixed feelings about the “Citizen Kane” “victory.” He said he had had his eye on “Kane” as a possible test case to determine the extent of various state and federal laws protecting the rights of artists and he is sorry to lose it.

“Without knowing the details of (the RKO/Welles) contract, ‘Citizen Kane’ would have been an ideal test case,” Lutzger said. “You have one of the undisputed classic American films and you had a director who made living testament that he didn’t want it changed.”

Still, there will be other candidates for a test case, Lutzger said. The fact that Turner reversed itself “counts as a significant recognition from the primary mover on colorization that there are legal headaches ahead.”

One headache that Orson Welles may have prompted from the grave is other kinds of creative controls that might be built into hundreds of old contracts by principals other than directors. Lutzger said that if an actor, for instance, had approval of lighting for close-ups built into his or her contract, there is a question of whether those artists or their heirs could argue legally that colorization violates that agreement.

But that’s just one of many legal possibilities being considered by the DGA since it lost two key battles: One to get the U.S. Copyright Office to rule that colorized films cannot be copyrighted (the office said they can); the other was to get Congress to include a “moral rights” clause in the 1988 Berne Convention Implementation Act (Congress did not).

The 103-year-old Berne Treaty grants global copyrights to literary and artistic works. Last fall, the United States became the 77th nation to sign on, but in ratifying the treaty, Congress rejected the clause that currently protects film makers in 76 other countries from having their films altered in any way by the legal owners.

The campaign to get Congress to ratify Berne had the Motion Picture Assn. of America and its president, Jack Valenti, pushing and pulling at the same time. The MPAA, in its right-minded war against film piracy around the world, wanted the protection of Berne copyrights. But as the representative of the film establishment, it also was anxious not to have a moral rights clause that could end colorization and other technological means of commercial exploitation of American-made movies.

Treaty Compromise

The bill to ratify the treaty eventually included the moral rights language, said Lutzger, but a compromise was worked out so that the MPAA got its anti-piracy benefits without the moral rights clause.

Oddly, under the Berne Convention Implementation Act, directors without Welles-type contracts can still have their work altered, even though it will be protected in other Berne countries. Meanwhile, the films of foreign directors continue to be protected in their countries, but not here.

“We are trying to do something that hasn’t been done in 200 years,” said veteran director Elliott Silverstein. “We’re trying to get artists’ rights acknowledged in copyright law and give artists in America the same rights as artists in 76 other countries.”

Silverstein and Lutzger think one of their best hopes rests with the Lanham Act, a federal trademark law that was designed, among other things, to protect consumers from misrepresentation of products or services in interstate commerce.

Their argument, very simply, is that people buying or watching films that have been altered are not getting the product advertised.

Lutzger cited the case of Gilliam vs. ABC, which he said was won through Section 43A of the Lanham Act. In that case, Terry Gilliam, the lone American member of the British TV’s Monty Python’s Flying Circus, sued ABC over its editing of Python episodes that had been produced in conjunction with the BBC.

Gilliam, on behalf of the whole troupe, argued that ABC’s editing was so severe, it was no longer accurate to present it as Monty Python.

“It’s the first case that referred to the notion of ‘moral rights’ under U.S. law,” Lutzger said.

Besides basic property rights, producers and other owners of film libraries argue that film authorship is a fuzzy issue, not comparable to the artistic works of painters, sculptors and novelists. The directors maintain that their collaborators on films--the actors, writers and craftspeople--all support their claim for moral rights.

The responsibility for success and failure in films is often disputed. Even in the case of “Citizen Kane,” critics have questioned how much of that story was Welles’ and how much was contributed by his co-writer, Herman J. Mankiewicz.

In any case, it seems fitting that Welles and “Citizen Kane” have managed to raise a speed bump for the Turner juggernaut. Turner, a mogul with the self-confidence and resources of Charles Foster Kane himself, said he was colorizing “Citizen Kane” as much to rub his critics noses in it as to make money from it. And there was Welles to stop him.

How Welles slickered RKO out of that remarkable contract (and slickered Turner 40 years later) is the footnote that became a chapter in Hollywood history.

Welles was a 23-year-old wunderkind of New York stage and radio when struggling RKO’s chief, George Schaefer, reportedly at the urging of board member Nelson Rockefeller, offered Welles the contract he couldn’t refuse. It promised him $150,000 plus 25% of the profits for each of six films that he would write, direct and star in. It also offered him total creative control over the projects, once the script and budget had been approved.

“Citizen Kane” was the first film Welles completed for RKO and the only one where he was able to exercise all that power. He chose his own cast from his stable of Mercury Theater actors, none of whom had worked on a movie before. He picked his entire crew, including the renowned cinematographer Gregg Toland, who shares Welles’ credit for the vaunted look of “Kane.” He even supervised the marketing, including the self-indulgent five-minute trailer that preceded its release.

Welles didn’t have “absolute” control, though. A brothel scene was cut at the insistence of the Production Code Office, and a butler’s line (“He was a little gone in the head”) was cut at the insistence of RKO lawyers who were concerned about a lawsuit coming from William Randolph Hearst, upon whose life the film was so obviously based.

But when RKO began to sag at the knees over pressure from Hearst, from his papers, and from his cronies in Hollywood, Welles threatened to cash his contract in court and the studio relented and released the movie.

“Citizen Kane” was an instant critical hit, but audiences outside New York and Los Angeles found it easy to resist and the movie barely recovered its $842,000 cost.

Welles was in Brazil working on an ill-fated documentary when RKO ripped up both his contract and “The Magnificent Ambersons,” and Welles was a 26-year-old visionary that no one wanted to hire, let alone invest with unlimited power.

But for a moment, he had it, and what he did with it was to make one of the greatest films in history. He could have made it in color, but for reasons that are apparent on the screen, he chose to do it in black and white. And now, three years after his death, he has managed to insure that it will stay that way.