restricted access From Colorization to Orphans: The Evolution of American Public Policy on Film Preservation
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From Colorization to Orphans
The Evolution of American Public Policy on Film Preservation

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The National Film Preservation Act (NFPA) of 1988 was a pivotal decision focusing federal public policy on motion picture preservation. This legislation created both the National Film Preservation Board (NFPB) and the National Film Registry (NFR). However, the original 1988 legislation was not concerned primarily with preserving physical films in the archival sense; instead, the law was drafted in response to controversial, contemporary efforts to colorize classic black-and-white motion pictures.1 The term preservation, as used in the law, was primarily concerned with the preservation of original motion picture content without significant visual alterations. The NFPB and NFR were designed mainly as enforcement mechanisms for the preservation of motion picture content; archival preservation was an afterthought.

The laws that followed the original 1988 act, however, moved toward preservation in the physical, archival sense, with each subsequent piece of legislation that was passed as a continuation of the NFPA of 1988 increasing the government’s commitment to this goal. This was due to the efforts of the Library of Congress, film archivists, and their allies, who saw the very public formation of the original NFPA as a means of increasing the visibility of preservation issues to Congress and the general public. The creators of the NFPA of 1992 and the legislation and reports that followed altered the primary purpose of the NFPB and NFR to deal with the problem that “motion pictures of all types are deteriorating faster than archives can preserve them.”2 This article argues that the staff of the Library of Congress and other stakeholders in the film preservation community worked deliberately and thoughtfully to redirect federal legislation from the controversial, ineffective copyright compromise in 1988 to an effective public policy plan that provides strong federal support for the physical preservation of motion pictures. Additionally, this future legislation—particularly the NFPA of 1996—guided preservation priorities for noncorporate archives away from a focus on commercially released feature films and toward the preservation of orphan works.

Colorization and the Moral Rights of Motion Picture Artists

Congressional attention toward the so-called preservation of motion pictures began with the controversy surrounding colorization of classic, black-and-white motion pictures in the late 1980s. New computer technologies during this decade made it possible to add color to classic films, which made the works more appealing to audiences who preferred modern, colorized motion pictures.3 Media moguls such as Ted Turner were buying classic films and using the new media of cable television and video to commercially exploit these works, and in some cases, they were finding that colorized versions earned several times [End Page 130] as much through cable and video as the original, unaltered versions. Other modifications, such as panning and scanning to fit widescreen films on standard televisions, editing for commercials, censoring for broadcast standards, and time compressing films to fit into shorter programming blocks (lexiconning), were also standard practice and done to make films more commercially viable, but colorization was done to make films more appealing to certain audiences rather than to fit technological and commercial broadcast standards. Therefore, despite the popularity of these colorized works among portions of the public, the original filmmakers and stars of these films argued that the colorization process altered these works in an artistically unacceptable manner, presenting them in a way that defaced their original intentions. These creators of the original motion pictures—who were not the copyright holders—attempted to argue that they should have moral rights over works they created, with moral rights being limited control given to artists to prevent the legal owner of their work from altering it substantially without their permission. Such rights are meant to prevent copyright owners from taking actions that may damage the original artists’ reputations by misrepresenting their contributions to their work. While moral rights for films and other arts have been a standard part of European law, as outlined in the Berne Convention, no such explicit protections existed within American copyright law. With this situation, the Hollywood creative community began to lobby Congress for moral rights protections against digital alterations to...