UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY OCT 20 Ij22 ^^^ ^^ NBW YOKk« 1^1! THE lAW OF MOTION PICTURES INCLUDING THE LAW OF THE THEATRE TREATING OF THE VARIOUS RIGHTS OF THE AUTHOR, ACTOR, PROFESSIONAL SCENARIO WRITER, DIRECTOR, PRODUCER. DISTRIBUTOR. EXHIBITOR AND THE PUBLIC. WITH CHAPl^ERS ON UNFAIR COMPE- TITION. AND COPYRIGHT PROTECTION IN THE UNITED STATES. GREAT BRITAIN AND HER COLONIAL POSSESSIONS BY LOUIS D. FROHLICH AND CHARLES SCHWARTZ MtMBERS OK THE NEW YORK. BAR NEW YORK BAKER, VOORHIS AND COMPANY 1918 0.6 ^Y Z Copyright, 1917, bt LOUIS D. FROHLICH AND CHARLES SCHWARTZ THia BOOK IS AKFECTIONATELV DEDICATED TO NATHAN BURKAN TO WHOM WE OWE OUR ENTRANCE INTO THE FIELD OF MOTION PICTURE AND THEATRICAL LAW PREFACE So rapid has been the growth of the motion picture in- dustry that within a (juarter of a century after its birtli, it ha.s taken its place among the five foremost business enterprises of this country. Litigation between the different parties associated with the business has been frequent and has resulted in a large body of case law on the questions peculiar to the industry. Notwithstanding the growth of this branch of the amusement life of the nation and of the importance of the law peculiar to it, no attempt has been made, so far as we know, to collect the decisions and to point out the general principles of law which have been developed by the courts with reference thereto. To give such a statement of the motion picture law has 'been our object. We have collected every available decision of the State and Federal Courts, as well as of the Courts of England and Canada relating to motion pictures. We have also collected all the more important decisions with reference to tiie theatre and literary property in general, as many of the principles estal)lished in those branches of the law apply to motion pictures. V VI PREFACE If this work will assist the Bench and the Bar in clarify- ing the numerous legal questions constantly presented in Utigation of this nature, we shall feel amply repaid for our efforts. Thanks are due to William Leonard Berk, Esq., for assistance on the proofs. Louis D. Frohlich, Charles Schwartz. 165 Broadway, New York. December 1, 1917. TABLE OF CONTENTS CHAPTER I THE AUTHOR Rights in his Literary Works Paok Sec. 1. Where the motion picture is based upon a dramatic composition 1 2. Where the motion picture is based upon a novel or his- torical work 11 3. Where the motion picture is based upon a short story, sketch, poem, lecture, sermon or other kindred work . . 15 4. Where the motion picture is based upon an original scenario, tliat is one not based upon any other work. . V.) 5. Where the motion picture is l)ased upon a news item . . . 23 6. Where the motion picture is based upon a work in the public domain 24 7. Where the motion picture is produced in serial fonn.. . . 25 8. Where the relationship is that of employer and om- I)loyc 2() 9. Where the motion picture material has been written by more than one person 35 10. Nature of the contract of co-authorship 45 11. Whore music has been written specially to accompany the exhibition of the motion picture 51 12. Where the motion picture producer has not followed the text of the work upon which the motion picture is based 53 13. Criticism of the work 63 vii VIU CONTENTS CHAPTER II THE AUTHOR (CONTINUED) Miscellaneous Questions Page Sec. 14. On the question whether the contract existing between the parties is a personal one 67 15. Where the contract contains a negative covenant 71 16. Where the work is to be to the satisfaction of the pro- ducer 73 17. Where the contract provides for the writing of a Hbelous, immoral or seditious work 73 18. Where the Hcense granted is a sole and exclusive one. ... 73 19. Where the contract contains limitations as to methods of exploitation 74 20. Where the work is to be produced at a definite time. ... 75 21. Where the payment to the author is based upon a per- centage of the gross receipts or net profits 77 22. Where the amount to be paid to the author is guaranteed 79 23. Wliere the payment to the author is a stipulated amount per performance or per period 80 24. Where the amount of damages in the event of a breach is stipulated 83 25. Wliere the contract provides for a forfeiture upon failure to pay the royalties due 84 26. Where the manuscript is lost or converted after submis- sion to the producer 87 27. Where the work is secured by means of a prize contest. . 88 28. On the (juestion whether an outright purchaser is re- quired to reproduce the work 89 29. On the question whether the producer is entitled to a re- fund of advance payment 90 30. On the question whether the contract may be rescinded vfho.rv tlic author made a poor bargain or where fraud is involved DO CONTENTS IX Pa(jk Sec. 31. On the question whether the contract may be rescinded wliere tlie producer made ii poor bargain or where frtiiui is involved 'Jl 32. On the question whether a contract to write will be specifically enforced 92 lili. On tlio question whether the licensor may maintain an action against third parties 92 34. On the question whether courts grant injunctions pen- dente lite more readily in actions of this nature 92 CHAPTER III THE PRODUCER The Actor Sec. 35. In general 95 36. Injunction for breach of- contract where services are special, unique and extraordinary 95 37. Injunctions pendente Hte 108 38. Services to be ".satisfactory" 112 39. Length of engagement 117 40. Two weeks' custom and other customs 119 41. Contracts for work on Sunday 125 42. Services "actually performed" • 131 43. Substantial performance 133 44. Anticipatory breach 135 45. E.xposure to obscenity, ridicule, degradation, etc 136 46. Renewal of contract — modification 142 47. How many causes of action for breach 145 48. Actor's remedy for breach 146 49. Profits as a basis for damages 149 50. Producer's offer of re-employment after breach 154 51. Grounds for discharge 156 52. Actor's breach of the contract — damages 166 53. Changing motion jjicture 169 X CONTENTS Page Sec. 54. Contracts with infants 173 55. Inability of producer when studio closed by the authori- ties 176 56. Questions of travel 177 57. Booking agencies 178 58. Workmen's Compensation Acts 180 59. Garnishment 184 60. Serial stories 185 61 . Escrow agents 186 62. Where joint venture 187 63. Royalties in addition to salary 190 64. Law governing validity of contract 190 65. Contract labor and exclusion laws 191 66. Performance in unlicensed theatre 192 67. Contracts for transportation — damages 193 68. Power of company's officer to contract — agency 195 69. Costumes 197 70. Enticement of actor 198 71. Libel of actor 202 CHAPTER IV THE PRODUCER (CONTINUED) His Other Employes Sec. 72. Scenario \\Titer » 205 73. Director and other employes 209 CHAPTER V THE DISTRIBUTOR AND THE EXHIBITOR Sec. 74. Distributor — in general 214 75. Exhibitf)r -in general 225 76. Adverti.sing matter, programs, bill-posters 228 CONTENTS XI Paob Sec. 77. What are fixtures 232 78. Replevin of film and machine 235 79. Theatre lea.ses 237 80. Theatre a nuisance 2.51 81. Franchise and booking agreements 2.'>6 82. lienefit performances — private exhibitions 258 83. Interstate commerce 260 84. Bankruptcy 261 85. Libel 264 CHAPTER VI THE PUBLIC Right of Privacy Sec. 86. In general 267 87. When liable under statute 274 88. When not liable under statute 278 89. When use of name or picture is libelous 282 90. Weekly news motion pictures 284 CHAPTER VII THE PUBLIC (continued) Theatre Proprietor's Duty Sec. 91. Right to exclude patrons 291 92. Liability for injuries sustained by patrons — In general. . 299 93. Falling over balcony 303 94. Seats and floors ^^-^ 95. Tripping in darkened theatre — aisles — steps — exits 306 96. Articles dropping 311 97. Wild animals 313 98. Crowds 318 « XU CONTENTS Page Sec. 99. Hurt by performer 319 100. Miscellaneous accidents 322 101. Acts of strangers 325 102. Assault 326 103. Who is liable 331 104. Property lost in theatre 335 CHAPTER VIII THE PUBLIC (continued) License Sec. 105. What is "Motion picture" "Theatrical performance" "Theatre" 337 106. Necessity for license 345 107. Power to license discretionary — Revocation 349 108. Extent of discretionary power 351 109. Right to license on condition 358 CHAPTER IX the public (continued) Regulation Sec. 110. Buildings— Distances 362 111. Standees — Aisles — Closing 365 1 12. Operator and booth 367 113. Firemen — Fire-escapes — Exits 368 1 14. Admission of children 370 115. Hogulation amounting to prohibition 371 116. Proliibition — Imniorahty 372 117. Wlio is liable for penalty 379 118. Ticket "Scalping" 381 119. C:enHorHhip 383 120. Sunday performance 391 CONTENTS Xm CHAPTER X UNFAIR COMPETITION Titles — Marks and Devices "^ " Paob Skc. 121. Using same or similar titles 402 122. Use of title after copyright in work expires 4.'i8 123. Infringement of titles— Titles held to infringe 440 124. Infringement of title.s— Titles held not to infringe 445 125. Acquiescence and abandonment 449 126. Relief 4.5;j 127. Marks and devices 400 12.S. Transferability 463 129. Parties 467 130. Actions at law 468 131. Trade-mark in title of cartoon 469 CHAPTER XI UNFAIR COMPETITION (CONTINUED) Miscellaneous Matters Sec. 132. Right to use or a.ssign one's own name 477 133. Limitations on use — price fixing 481 134. Restraint of trade 487 CH.VPTER XH COP"iTlIGHT In General Sec. 135. Common-law rights 491 136. What is ."Secured by ecqn'right 499 137. How copyright is secured 500 XIV CONTENTS Page Sec. 138. Publication 503 139. Notice of copyright 510 140. Licensee's failure to insert notice 519 141. False notice of copyright 520 142. Title— Changing title 521 143. Who may secure copyright 524 144. Belligerent aliens 527 145. In what name copyright may be taken out 532 146. Subjects of copyright — in general 534 147. Immoral and seditious works 535 148. Gags, stage business, contrivances, cartoons, advertise- ments 536 149. Burlesques, parodies, inferior copies 541 150. Copyrighting revised edition of work 543 151. Works in pubhc domain 544 152. Component parts 544 153. Term of copyright 546 154. Renewal of copyright 547 155. Assignment of copyright 550 156. Difference between assignment and license 557 CHAPTER XIII COPYEIGHT (continued) Infringement Sec. 157. Tests— What is protected 559 158. Primary test 561 159. Common sources 568 160. Substantial similarity by coincidence 574 161. Who may maintain action — Misjoinder of parties — Joinder of causes of action 577 162. Where action may Im; brought 585 lf)3. Who is liable— Intent 586 CONTENTS X\ Page Sec. 164. "Wliat must be alleged and proved 593 165. Bill of particulars 599 CHAPTER XIV COPYBIGHT (continued) Remedies Sec. 166. Actions in equity— In general 602 167. Preliminary injunction 602 168. Final hearing 608 169. Injunction as to part 619 170. Writ of seizure 621 171. Accounting 623 172. Actions at law 626 173. Actions purporting to be brought under the Copyright Act 628 174. Willful infringements 634 175. Statute of limitations 636 176. Construction of forfeiture and penalty clauses 636 177. Appeal 638 CHAPTER XV COPYRIGHT (continued) Miscellaneous Matters Sec. 178. Return of copies depo.sited 630 179. Pr()liil)ition of importation of piratical copies 640 180. Ad interim protection 641 181. Bankruptcy— Title in trustee 643 182. Selling secondhand copies 646 183. Taxal)ility 648 184. Music in theatres 649 XVI CONTENTS Page Sec. 185. Co-authorship 653 186. Employer and employe 653 187. Restraint of trade — Price fixing — Monopoly 653 CHAPTER XVI COPYRIGHT (continued) British, Colonial and International Copyright Sec. 188. Copyright in United Kingdom and Protectorates 654 189. Copyright in Newfoundland 658 190. Copyright in Commonwealth of Australia 658 191. Copyright in Dominion of New Zealand 659 192. Copyright in Union of South Africa 660 193. Copyright in Dominion of Canada 660 194. International Copyright 672 APPENDIX United States Copyright Act of 1909 as amended by the Acts of 1912, 1913 and 1914 677 Tahulatod List of Presidential Proclamations conferring copyright l)r()tccti()n upon foreign citizens or subjects 710 Rules of the Supreme C'ourt of the United States for practice and procedure under section twenty-five of the United States Copyright Act of 1909 714; Presidential Proclamation of April 9th, 1910 719 C()i)yright Convention botwoen the United States and Hungary. . 722 Copyright Convention between the United States and other American Republics 725 Order in Oiuncil of dreat Britain of February 3, 1915 732 Presidential Proclamation of January I, 1915 735 Staf<-in('nt of Register of C^opyrights with respect to copyright of l:il)cls and jirint.s 739 CONTENTS XVU Page Rules and Regulations for the registration of claims to copyright, as revised and issued in November, 1917 740 British Copyright Act of l'.)ll 762 Previous British Copyright Acts not repealed by the British Copy- right Act of 191 1 801 Canadian Copyright Act 812 Rules of the Canadian Department of Agriculture under the Copyright Act 833 Convention creating the International Copyright Union, known a« the Berne Convention of 1908 and commonly referred to as the Berlin Convention (text in English) 836 (text in Frencli) 858 TABLE OF CASES CITED Page Aaron v. Ward 291 Ahorii ('. Janis lOfi, 174, 175 Ahramovitz v. Tenzer. . .360, 312 Actiongescllscliaft v. Arnberg 450 Adams v. Burke 481 Adams r. (Irossmith 88 Adams r. Fellers 224, 236 Adams r. Fitzpatrick 143 Adams /•. Folger 460, 585 Adler, Matter of Samuel. ... 183 Adier c. Miles 241 Agawam Co. v. Jordan 630 A. G. V. Shoreditch Corpora- tion 362 A. G. r. Vitagraph Co., Ltd. . 260 Ahlstrand r. Bi.shop 315 Akinr. Meeker 592 Albera v. Sciaretti 126, 127 Albert r. Interstate Amuse- ment Co... 178, 191, 196, 256, 258, 261 Albrifiht ('.Teas 553, 632 Aldcn r. .\rnsky-\Vilson 445 Alexander r. Potts 162 \lexander r. Manners Sutton 88 Allen V. Flood 202 Allen r. Walker 452, 465 Allen Hillposting Co. v. King 229 .\lmind v. Sea Beach Ry. Co. 281, 288 Page American Acad, of Music r. Birt 124 American Clay Mfg. Co. v. American Clay Mfg. Co. 441, 46;i American Hungarian Pub. Co. v. Miles Bros 151 American Law Book Co. v. Chamberlayne 27, 54, 55 .Vincrican League c. Chase 96 American Malting Co. v. Kcitel 54, 603 American Music Stores r. Kussell 113 American Pre.ss Ass'n v. Daily Story Piib. Co 520 American Tobacco Co. v. Werckmeister 505, 623 American Trotting Reg. r. Gocher 603 American Waltham Watch r. U.S. Watch Co 163 Amoskeag Mfg. Co. v. Spear 452, 459, 460 Anderson r. Jjong 19S Andre r. Mertens 307, 308 Andrews r. Chandler 233 Andrews v. Kilgour 315 Andrus v. Berkshire Co 610 xix XX TABLE OF CASES Page Angers v. Leprohon 55 Angle V. Chicago & St. Paul Ry. Co 202 Anti-Vice Motion Picture Co., Inc., V. BeU 373 Appleton V. Welch 336 Appollinaris v. Scherer 468 Apthorpe v. Neville 73 Archbold v. Sweet 55, 65 Archer v. Willingrice . . . 343, 348 Arden v. Lubin 84 Arena A. C. v. McPartland. . 103 Arkansas Smelting Co. v. Belden 645 Armstrong v. Majestic Mo- tion Picture Co 196 Armstrong v. Savannah Soap Works 468 Armstrong v. Stair 329 Arnold v. State 321 Aronson v. Fleckenstein 44, 406. 417, 429, 438, 443, 492, 497, 531, 570, 581 Aronson v. Orlov 628 Ashley /•. Dixon 202 AspinwuU Mfg. Co. v. Gill. . 38 Associated Press v. Interna- tional News Sers'ice 23 Astor V. W. 82 St. Realty Co. 437 Atcliison-Kly r. Thomas. . . . 189 Atkin.Hon v. Dohcrty. . . .2iY.), 272 Atlantic Milling Co. v. Rol)in- son 466 Atla.s Mfg. Co. V. Street & Smith. 404,418.410,424, 134, 439, 447, 522, 534 Page At\\nll V. Ferrett 594, 596 Auckland & Brunetti v. Col- Uns 179 Aughtrey v. Wiles 322, 323 Aunt Gemima Mills Co. v. Rignay Co 458 Authors & Newspapers Ass'n I'. O'Gorman Co 486 Avery v. Langford 102 Babicz v. Riverview Sharp- shooters 331 Bachman v. Belasco 572 Baghn v. Cusenier Co 450 Bainbridge v. City of Min- neapolis 355, 357, 379 Baker v. City of Cincinnati . . 359 Baker v. Selden 560 Baker z?. Taylor 514 Baldwin ?'. Baird 632 Bald\vin v. Burrows 47 Ball V. Broadway Bazaar 417, 433 Bancroft v. Scribner 645 Banker v. Caldwell 492 Banks Law Pub. Co. v. Law- yers Co-operative 552 Banks v. Manchester. . . .511, 593 Barber i;.Penley. . .252, 253, 344 Barclay r. Barclay 37 Barnes v. Miner 537 Barnes v. Stern Bros 336 Barnett v. Q. & C. Co. .6, 74, 85 BarnswoU v. National Amuse- ment ('o 297 Baron v. Placidc 13'.> TABLE OP^ CASES XXI Pa(;k Barrett r. Lake Ontario Beach Imp. Co 302, 'AZi liartlette r. Crittenden 50G Bartsch r. Hcrndon 51, 09 Bass Furnace Co. v. Glass- cock 1G2, 1(53 liassett 7". Frencli 147 Batchelder r. Standard Plun- Rcr El. Co lG.i Batty r. Melillo 178 liauer /'. O'Coiinel 4S2 Bauineister r. Markhani .... 137 Baxter r. Billings 48, 49 Baylies /•. Bulloch 592 Baylies /•. Curry 298 Beck r. Carter 302 Bccknian v. CJarrott 156 Beer r. Canary 229 lieiford ;■. Scrihner. .19, 532, 590, 598, 010 Jielknapp v. Ball 03 Bell, ex parte 344 liell r. Locke 440 Bell r. Mahn 340 Bellamy v. Wells.. .252, 254, 344 Bellis V. Beale 344, 349 Bcllis r. Burghall 343 Beltinck r. Tacoma Theatre Co 230 Bender /'. Kins 232, 234 Benn v. Ix; Clerq 411 Bennett r. Carr 037 Benson /-. McMahon 383 Bentley r. Tii)l)als 544, 010 Benton r. Pratt 202 Benton ;•. Van Dvke 003 Pagk Benyaker r. Scherz 79, 190 Bergen; r. Parker 129, 190 iiernstein r. Aleech 79, 149 Besozzi V. Harris 313 Betterton's Case 252 Bettinir. Gye 157, 166 Bien r. Abbey 228 Bierce v. Stocking 6^i0 Billiken Co. v. Baker & B. Co. 455 Bilordeaux r. Bencke Lith. Co 120 Binns /•. \'itagraph Co.. .274, 280, 286, 2SS, 290 liinns ('. Woodruff 590, 619 liiograph Co. r. International Film Traders.. . .224, 225, 236 Bird i\ Everhard 336 Bird r. Thanhau.scr 591 Bird V. Welsh 592 Bishop r. Viviana & Co. ..20, 537 Black V. Allen 524, 550, 596, 608 Black V. Ehrich.. . .403, 405, 438 Black t'. Imperial Book Co. 557, 661, 671 Blackledge r. Weir. . . .38, 42, 43 Blackwell v. Dibrell 4.50 Blakely v. Sousa. .46,48,67, 479, 480 Blakely v. Wliite SUir Line. . 332 Blank i\ Mfg. Co (M) Bleistein r. Donald.son. .27, 32, r)0(). 539, 541, 574 Bli.'^s /'. Xegus 630 Blitz v. Toovey 139 Block r. City of Chicago 337, 356, 372 XXll TABLE OF CASES Fage Bloom V. Nixon 19, 537 Bloomer r. McQuewan 481 Blovmt V. Societe Ill Blumei'. Spear 511, 516, 522 Bobbs-Merrill v. Equitable. . 573 Bobbs-Merrill Co. v. Snellen- berg 486 Bobbs-Merrill r. Strauss 486, 496, 560 Bobbs-Merrill Co. v. Univer- sal Film Mfg. Co 78 Boisseau v. Scola Am. Co. 337, 344 Bole ;^ Pittsburgh A. C 318 BoUes V. Outing Co 513, 516 Bong V. Campbell Art Co. . . 527 Boosey v. Empire 607 Booth r. Jarrett 480 Booth V. Lloyd 63 Booth r. Richards 67 Borman v. City of Alilwaukee 317 Borthwick v. The Evening Post 404, 448 Bosselman r. Richardson 594, 595, 598 Bossner, Inre 397, 398 Bo.ston Glass Mfg. v. Binney 202 lioston Traveler Co. v. Purdy 637 liosweli r. Barnum 292, 2<)4 iioucicuult V. ( 'hatterton. . . . 568 lioucicault V. Delafield 526 Boucirault V. Fox. . .29, 492, 506 HoucicauU r. Hart. .492,497, .-)0(;, 511. .568, 593, 594 Bf.iicicaiih r. Wood 492, •>96 Page Bourlier Bros. v. Macauley. . 200 Bowden v. Amalgamated Pictorials 274, 281 Boyd V. Dagenais 272 Boyl V. Midland Lyceum Bureau 117 Bracken v. Rosenthal 539 Bradbury, Agnew v. Day. . . . 538 Bradbury v. Beeton 448 Bradbury v. Dickens 467 Bradner v. Mullen 336 Brady v. Daly 563, 568, 638 Brady V. Reliance 12, 14, 552 Branch v. Klatt 306, 308 Brand v. Godwin 113, 159 Brandreth v. Lance 266 Brandt v. Goodwin 157, 159 Brearley v. Morley 341, 342 Brennan v. Fox Film Corp. 206, 210 Brewer v. Wynne 357, 372 Bridgeford v. Meagher 114 Briscoe ?j. Litt 120, 140 British-Ajnerican Tobacco Co. I'. 13nt. Am. C. S. Co 424, 463 Broadhurst v. Nichols. .405, 410, 445 Broder v. Zeno Mauvais Co. 536, 616 Broemcl v. Meyer 449 Brooks V. Taylor 314 P/rown ?'. Baldwin tt (Sleason 141, 163 Ikown V. liatcliellor 320, 332 Brown ;'. Nugent 349 TABLK OK CASES XXlll Pack lirowii r. Rotsoff Mfg. Co. . . Ill Brown r. St Clyne r. Helmes 'Mi Cobb r. Knapp 197 Cocks /'. Purday 6Go Coffeen v. Brunton 461 Coghlan v. Stetson 133 Cohen v. Mutual Life. . .528, 5.30 Cole r. Rome Sav. Bank . . 320, 333 Coleman r. Wathen 497 Coles i\ Sims 102 Colgate V. Wliite 27S, 607 Colles r. Manp;ham 179 Collier r. Imp. Films Co.. 435, 522 Collier v. Jones 442 Colliery Engineer Co. v. United Corresp. Schools Co 27, 32, .34, 20S Collins T. Public Ledger Co 61 CoUister v. Ilayman. .291, 293, 294 Columbia Mill Co. r. Alcorn 410 C()luml)ian Lyceum Binvau ('. Sherman 134 Colyer r. Fox Publ. Co. .281, 284, 287 Comerina r. Comerma 6.33 Page Commercial Advertising A.ss'n r. Hoques 446 Commonwealth r, Alexander 259, 260, 398 Commonwealth r. Cincin- nati 255 Commonwealth v. Donnelly 340, .342 ( 'on mion wealth v. George. . . 299 Commonwealth v. Keoler. . . .345 Commonwealth i\ Kneeland 210 Commonwealth r. McGann 345, 346, 349 Commonwealth r. Powell. . . 329 Commonwealtli r. Ray 383 ComnKjnwealth v. Spiers 338, 342 Commonwealth r. Twitchell .346 ComuKjnwealtli v. Wcidner. . .392 Com.stock V. Lopokowa. .93, 96, HI Coney Island v. M'Int>Te- Paxton Co 245 Connor r. The Princess Theatre 316 Ccmrad v. Clauve 321, 3.32 C\)nreid Metrop. Opera Co. r. Brin 83, 167 Cooper r. Stone 64, 65 Cooper V. Stephens 554 Coojx*r r. Whittingham .56 Corbett r. Purdy..403, 42*), .522 Corelli ;•. (Jray .576 Corelli r. Wall 270, 277 Corliss i\ Walker 272, 27S Corsi r. Maretzek 157, 1«)7 XXVI TABLE OF CASES Page Cort r. Lazzard 99, 100 Cortesy v. Territory' 391 Cosby V. Robinson 355 Cotton V. Sounes 123 Cousineau v. Muskegon. . . . 325 Cox r. Coulson 320 Cox V. Cox 33, 55 Cox r. Sports Publishing Co. 448 Cramer v. Klein 255 Crane v. Kansas City Base- ball 322 Craxvford v. Mail and Express Pub. Co 104, 112, 208 Cream Co. v. Keller 477 Cremore r. Hul)er. .298, 325, 327 Crepps v.. Burden 391 Croasdale v. Tantum 64 Cronin v. Bloewecke 255 Crookes v. Petter 56, 212 Crossman v. Gr'ggs 465 Crotch V. Arnold. ..404, 449, 522 Crow V. State 397 Crowe V. Aiken. . . .492, 584, 586 Crowley v. Rochester Fire Works 301 Crown Feature l-'ilm r. Betts 594, 622 Crown Feature Co. v. Levy 595, 596 Crutcher v. liig Four 269 Cuervo r. Henkell 450 Cuml)erland /•. Copeland. .. . 552 Curran r. Birdsall 38 Currier r. Boston Music Hall 325 ("luricr /'. Tlonderson 312 Page Curtis & Dodd v. Struthers. . 144 Cutting V. Miner 149 D'Altomonte v. N. Y. Herald 274 Da Prato Statuary Co. v. Giuliani Statuary Co. .541, 545 Dailey v. Super. Court 266 Dale Rejaiolds v. Trade Pa- pers Publ. Co 448 Dallas V. Murry 121 Dalton V. Hooper 309 Daly V. Brady 567, 568 Daly V. Palmer. . 20, 538, 562, 567, 569, 587 Daly V. Smith 96 Daly V. Stetson 80 Daly V. Wabash 61 Daly p. Walrath 496, 507 Daly V. Webster. . . .20, 524, 540 Dam ?'. Kirk La Shelle..l3, 17, 22, 546, 556, 558, 566, 614, 626, 627 Dana v. Fielder 125 Dann, In re 644 Danville Press v. Harrison. . 210 Daversa v. Davidson's Sons Co 114 Davies v. Bowes. .23, 24, 598, ()16 Davis V. Dodge 140, 147 Davis V. Epoch Producing Co. 224, 228 Davis r. Foreman 100 Davys v. Douglas 364 Day r. Klaw 134, 178 Day V. Luna Park 251, 264 Day ;;. Siniijson 339, 344 TABLE OF f'ASER XXVll Pace Day r. Webster 455, 463 Day r. Wood worth 469 I)e Hegnis ;•. Artnistead. . . . 192 DeHekkcr r. Stokes 57. 212 DeCarltuii r. (ihiMT.. . .120, 125 De Francesco r. Barinuii..l()7, 175 De Gellcrt v. Poole. 121 , \VA, 1(11 De (!ray v. Murray 316 De Jons r. Hehrinan 202 De.JoiiK r. Hnicker 541, 593 De Koveii r. Lake Shore & M. Co 110 De Loniz r. McDowell. .155, 150 DePol /'. Sohlke 98 De Sando r. X. Y. Herald Co 283 De \'eliii r. Swanson 311 De N'ere r. (Sihnore 122 De Witt r. l-:iinira Nobles MfK. Co 38,39,43,46 De Zeidmer r. Lamm 157 Dean /•. lunerson 479 Dcariiii^M-. Pearson. 148, 155, 156 Decatur r. Porter 325 Decker r. Ktchison 513, 611 Delmour r. Forsythe 336 Delaney v. Hoot 40 Dennison r. Aslidown 28 Dennison Mig. Co. r. Thomas Mfg. Co 461 Denny r. Wright it Cobb . ... 181 Densmore v. l^vergreen 365 Denver r. Hallett 249 Deubert v. City of New York 599 Development Co. v. King 140, 15() Pa(;k Devlin v. Devlin 477 Deyo r. Kingston Consol. R. R. Co .301 Diamond r. Mendelsohn. ... 114 Diamond Match Co. v. Roe- ber 102 Diixlin r. Swan 202 Dick V. Yates 4a3, 404, 522 Dickey v. Linscott 157 Dickey v. Mctnj Pictures Corp 421, 444, 457 Dickey v. Mutual Film Corp. 411, 418, 420, 422, 424, 444, 456 Dickiii.son r. Callahan 48 Dick.son v. Waldron 301, 326 Dielman v. White 27, 596 Dictze /'. Riverview Park. . . 'S^i2 Dillon I'. Pearson 448 Dis Debar v. Hoeffle 136 Distington Hematite r. Pos- sehl 528, 530 Dixey v. A. H. Woods Prod. Co 131 Di.xon v. Corinne 623 Dixon Crucible Co. i\ Gug- genheim 479 D'Ole V. Kansas City Star 505, 609 Doan ('. American Hook Co. 486, 647, 64S Dockerell t\ Dougall 270 Dock.'^tader v. Reed 108, lOi) Dodil /•. Smith 486 Doherty r. Allman 100 Donaldson c. Hecket 495 XX vm TABLE OF CASES Page Donellan, In re 398 Donnell}'^ v. Ivers 523 Douglas V. Merchants' Ins. Co 143 Douglas V. Stokes 272 Dow V. Henderson 334 Dovvling V. Livingstone 63 Drake P. Hall 42 Drayton v. Reid 162 Dressier v. Keystone Film Co. 190, 221 Drew V. Peer 328 Dreyfus v. City of Mont- gomery 365, 372 Drummond v. Altemus. . .58, 212 Drummond v. Atty Gen'l . . . 140 Du Pont Powder Co. v. Mas- land 213 Du Puy V. Post Telegram. . . 540 Du Tremble v. Poulin 316 Duck V. Bates 343 Duckr. Mayer 593 Dudley v. Abraham 311 Duff I'. Russell 99, 136 Dugan V. Anderson 147 Duff V. Russell 162 Dunham v. The Indianapolis R. R. Co 39, 43 Duniway Publ. Co. v. The Northwest Printing & Publ. Co 446 Duiilop V. United States. . . . 535 Dunn r. Agricultural Soc. .. 332 Dunning r. Jacobs 304 Dunton r. Derby De.sk Co... 144 Dutton r. ('iip|)l(!H 457, 475 P.\GE Dwyer v. Hills Bros 311 Dyckman v. Valiente 40 E. C. T. Club V. State Racing Com 355 Eaton V. Lake 30 Economopoulos v. Bingham 338, 339, 348, 392 Eddy V. American Amuse- ment Co 145, 195 Edelsteini'.Bell.. . .357, 376, 379 Edelstein v. Edelstein. . .461, 469 Eden v. People 396 Eden Musee Co. v. Bingham 373, 393, 400 Edison v. Am. Mutoscope Co. 490 Edison v. Edison Polyform Co 61,269,273 Edison v. Lubin 338 Edison Storage Battery, v. Edison 460 Edling V. Kansas City Base- ball 322 Edwards v. Cissy Fitzgerald 97 Edwards v. Cotton 558 Edward v. McCIellan . . 337, 338, 393 Edwards v. N. Y. & H. R. R. Co 302, 304, 319, 333 Egan V. San Francisco 249 Egbert r. Sun Co 165 lOichel k Colligan v. Woods. . 573 luseman v. Schiffor 465 Eisfeldt V. Campbell 566 Elen V. London Music Hall 124, 204 TABLL OF CASES XXIX Pack Elgin Nat. Watch ("o. r. Ill- inois VVtitch Co 455, 463 Kliot V. Jones 275 lllkin & Co. V. Francis, Day it Iluntor 438 Ellis r. Marshall 539 Ellis V. No. AmericanTheatres 361 Ellis c. Ogden 539 I'^llis /'. Thompson 79 Ellslcr r. Hrooks 150, 153 Emerson v. Davies 502, 570 Emerson v. Nash 283 Empire City Am. Co. v. Wil- ton 538, 580, 593 Encyclopedia Britannica v. American Newspaper Ass'n 608 Engcl V. Shubert 143, 190 Ejjstein r. Cordon 327, 335 l">nst r. (Irand Rapids Engr. Co 162 Ervin v. Woodruff 317 Estes r. Leslie 439, 442 Estesr. Williams 403, 4;59 Estes V. Worthington. .439, 442, 591 Evans c. Morris 665 I'^vcrson c. Powers 145, 148 lCve.s.s()n ('. Zi(>gfeld 148 Ewen's Colonial Stamp Mar- ket, Ltd., V. Federal Stamp Co 445 Ewing r. Chase 309 ]']wing /'. Oshaldiston 192 I'Acolsior V. Pacific 582 Exchange Telegraph Co. r. Howard 23 Page Pagan r. Aborn 122 Fairbank Co. c. Windsor. . . 421 Fairbanks v. Luckel 4.52 Fairbanks v. Montreal St. Ry. Co 325 Fairfax r. Hunter 528 Fake v. Addicks 316 Falk r. Donaldson 564 Falk V. Cast. .505, 517, 623, 637 I'arlcy v. Evening Chronicle Puijl. Co 283 Farmer v. Calvert 594 Farmer r. Elstner 564, 620 Farmers' Handy Wagon Co. V. Beaver 460, 584 Farndalc v. Bainbridgc 348 Fay r. Bignell 342, 649 Fay V. Harrington 264, 265 Fechter r. Montgomery. . 105, 207 Feinstein r. Jacobson 102 Fennar r. Atlantic Am. Co. . . 324 Penning Film Service v. Wol- verhampton 225, 587 Fenstcrmaker r. Tribune Pub. Co 270, 284 Fenton v. Clark 156 Ferguson, Ex parte 396 Ferris v. Frohman 509, 618 Fichtel r. Barthel -608 Fichtenberg r. .\tlanta 392 Filburn r. Peoples P. & A. Co 317 Finney's Orchestra i\ Fin- ney's Famous Orchestra . . 465 Fire Department r. Hill. .369, 380, .587 XXX TABLE OF CASES Page Fire Department v. Stetson 369, 380 Fishel V. Lueckel.. .564, 591, 610 Fischer v. Automobile Supply Co 600 Fischer v. Blanch 459 Fisher r. Monroe 121, 156 Fisher v. Star Co. .474, 475, 631 Fitch V. Young. . 17, 498, 557, 558, 582 Fitzgerald v. George Newnes 162 Flagstaff Silver Co. v. CuUins 391 Flanagan v. Goldberg. . .311, 326 Fleron v. Lackaye 92 Fletcher v. New Orleans .... 636 Florence Co. v. J. C. Dowd. . 454 Folsom V. Marsh 564 Forbes r. Howard 232 Ford V. Blaney Amusement Co.. 13, 16, 17, 22, 546, 556, 557, 594, 595 Ford V. Hcaney 275 Forsythe v. McKinney 162 Foster-Milburn v. Chinn 273, 283 Foster's Agency, Lim., v. Ro- maine 179 Fountain Sq. Theatre r. Evans 130, 397 Fowler v. Holmes 301, 327 Fox V. Buffalo Park.. 300, 302, 312, 332 Fox V. Dougherty 322 Fox V. McClollan. .351, 373, 394, 398 Francis v. Cockrcll 302, 303 Francis v. Flynn 273 Page Francis v. Oliver 582 Francis Day & Hunter v. Feldman & Co 506, 656 Frankenstein v. Thomas .... 499 FrankUn Film Corporation, Matter of 355 Fraser v. Barrel 586 Fraser v. Berkeley 65 Fraser v. Edwardes 591 Fraser v. Yack 526 Frazee v. Edeson 104 Frazer v. Frazer 477 Fredericks v. Howie 344 Fredericks v. Payne 340 Freeman v. Trade-Reg. .593, 595 Freligh v. Carroll 538 French v. Day 588 French v. Gregory 590 French v. Jones 358 French v. Kreling 498, 632 French v. McGuire 492 French v. Quincy 250 Frohman v. Fitch. .2, 3, 8, 75, 418 Frohman v. Mason 149 Frohman v. Miller. .404, 447, 459 Frohman r. Morris. .407, 419, 429, 443, 456 Frohman v. Pay ton. .417, 419, 429, 443, 456 Frohman Amusement Co. v. Blinkhorn 225 Frowde n. Parish 32 Fniit Cleaning Co. v. Fresno Homo Packing Co 532 Fry V. Bennett 264 TABLK OF CASES XXXI Pack Fullorr. Bomis 20, .WS Fuller V. Brown 15(i Fuller V. D(»\viiinK ll-t Fullerr. Hull 457 Fuller V. McDonnott 2S() Gabriel r. McCabe 72, 172 Ciaiety Tlietvtre v. Cissy iWtus KX) Gaittin v. Searle 158 Gale r. BiiiKliam 300 Gale I'. Lockie 70 Gallagher /•. lludd 307 Galliher v. Cachvcll 008 Gallini v. Laborie 192 Gannert v. Rupert 442 Garrett v. Messenger 340 Gast V. Falk 010 Gates I'. Fraser 38 Gath V. Interstate Amuse- ment Co 138, 178 Gaumont r. Hatch 578 Gause V. Knapp 599 General Film Co. v. Kalem (ieiu'sce l^ecreation Co. v. lOdgorton. .351, 354, 355, 350, 373 George r. Smith 410 George r. I'liiv. of Minn. . . . 325 "George, the Count Joannes" v. Burt 05 Gerald r. Inter Ocean Pul). Co 204 (Jibson /'. Carruthers Kx- chcquer ()0, 70 Pa(;k Gilbars v. Jefferson 132 Gilbert r. The Star (507 Gilbert r. Workman 57 (Jill f. United States. .27, 32, 5.50 Ciillett V. Bate 044 Gilligham i?. Ilay 223, 228 Ciilman r. Lamson Co 113 Giim r. AppoUo 625, 648 Ginsberg v. Friedman. . .114, 103 Gilmore v. Anderson 590 Glaser v. St. Elmo. .403, 429, 439, 447, 522, 571, 573 Glen & H. Mfg. Co. v. Hall 418, 407 Glenny v. Lacy 115, 208 Glenville v. Selig Polyscope Co 589 Glinseretti v. Rickards 161 Glyn V. Miner 116 Glyn V. Western Feature Film Co 535, 542, 599 Cilynn v. Lyceum Theatre Co 303, 306 (joddard v. Morrissey 135 Goelet V. Frohman 239 Goldberg v. Popular Pictures Corix)ration.l53, 187, 216, 219 Golders Green Am. & Dev. Co. V. Relph 167 Goldmark i\ Krcling. .400, 500, 583 Goldstein v. Levy 311 GoUansz v. Dent 77 (Jonsolis r. Gearhart 103 Gooding r. Chutes 314 Goodrich c. Busse 305 xxxu TABLE OF CASES Page Goodyear Shoe Mfg. Co. v. Jackson 634 Gordons. Barr 99, 175 Gottt-. Pulsifer 64, 264 Gottsberger v. Aldine 504 Gould V. Banks 550 Gould V. Springer 232 Goulds;. State 398, 400 Gould's Case 181 Graddon v. Price 157 Graham v. McKimm 65 Graham v. Payne 316 Grannan v. Westchester Rac- ing Ass'n 296 Grant v. Maddox 105, 124 Grant Richards, In re. . . .69, 647 Gran v. McVickar. . 135, 196, 237, 251 Graves v. Garrie 672 Gray v. Russell 564 Gray v. The 0.xford, Lim . 164, 192 Gray?;. Wulff 118 Greater N. Y. Film Rental Co. V. Biograph 490 Green v. Botheroyd 344 Green v. Chapman 203 Green v. Luby 503, 543 Green v. Minzenshcimer. . . . 542 Green v. Savanali 365 Cireenburg v. Early 70 Grccnburg v. West. Turf 292, 296 Groono r. Bishop 621 Greene r. Seattle A. C 304 Greonhali Theat. C'irc. v. M:irkr)\vitz 135, 1 16 Page Greenough v. Allen Theatre 363 Gregory v. Brunswick 331 Gregory v. Tavernor. .342, 343, 649 Gregory r. Tuffs. .343, 344, 348 Griffin y. Brooklyn Ball Club 165 Griffith V. Tower Pub. Co. 51, 67, 68, 69, 646 Griggs V. Perrin 571 Grimston v. Cunningham,. 96, 105 Grinnell v. Kiralfy 160 Griswold v. Ringhng 319 Grocers Journal Co. v. Mid- land Publishing Co 446 Gross V. Seligman 539 Gross V. Van Dyke. . 590, 618, 619 Grossman v. Canada Cycle Co 506, 665 Grotev. C.,etc.,n. R 302 Gunter r. Astor 202 Gustin V. Record Pub. Co . . . 623 Haag V. Rogers 121, 162 HaasiJ. Feist..519, 533, 592, 613, 614 Ilackctt r. Walter 91 Hagan and Dodd Co. v. Rigbers 469 Haggard v. Waverly 519 Ilahn r. The Concordia So- ciety 101 Haines v. Thompson 120 Haiiuiue v. Cyclops Iron Works 161 Ihilcrofl r. West Kml Pliiy- iiou.'^c, \jU\ 17G TABLE OF CASES XXXlll Pa(;k Hall ;•. Aronson \'2{) Hall /•. CrcfMi :i42, 'M.i, (H'.( Hall r. Pritclu'tt \S\ •Halloii r. Tliompson 120 Hallcy V. Alloway 2;« Hallyhurtoii r. Burke Co. . . . 321 HaliKTii r. Manhattan Ave. Theatre Curp 2")! Halstead v. Grinnan 608 Haiiiilton Shoe Co. v. Wolf 409, 403 Hamlin r. Bender 255, 396 Hainmerstein, Matter of 351, 380, 398, 588 Harnnierstein v. Belasco. . . . 238 Hainmerstein v. Mami. .100, 108, 110, 175 Hammerstein v. United Book- ing Offices 257 Hammond r. Melton 315 Hammond Publishing Co. v. Smy the 486 Hanfstaengl v. Smith 543 Hanlin v. Walters 138 Haimeton v. ICno 65 Hanover Milling Co. v. Met- calf 458, 475 Hanson r. Jaocard 583 Hap(>lman r. Poole 1S3 Hardacrc v. Armstrong. .552, 5!)2, 596, 613 Hardie v. Balmain 176, 177 Har](\v /'. Henderson. .. .158, 100 Harms r. Stern 33, 20S, ()15 Harper v. Donohue. .495, 496, 554, 577, 649 Vm.k Harper r. Holman ()03 Har|)er r. Klaw 2, 3, H, 9 Harper r. Lare 140 Harper r. Ranous. .403, 40 J, 437, 522 Harper r. Shopix'll 587, .589 Harrington, ex parte 352 Harrington r. Stillman 599 Harris r. Carstens Packing Co 315 Harris v. Crawley 323 Harris v. Commonwealth . . . 537 Harrison v. Baltimore 369 Harrison r. Conlan 70 Harrison v. Maynard-Mcrrill, 486, 632, 047 Hart V. Aldridgc 202 Hart V. City Theatres 244 Hart V. Cort. .6, 73, 124, 125 Hart r. Fox 82, 493, 592 Hart V. Tliomp.^on 119 Hart ('. Townsend 65 Hart V. Wall 203 Hart V. Washington Park. . . 325 Hart V. Woodbury Dermat. Institute 28.3 Harter. De Witt 57, 58 Hartford Fire Ins. Co. r. Wil- cox .50 Hartford Print Co. r. Hart- ford Directory 609, 026 Harvey r. Tivoli, Manchester Ltd KW Ha.skell p. 0.sborn 110 Hathaway v. Sabin 197 Hatton r. Kean 2S, .")2 XXXIV TABLE OF CASES Page Haven v. Russell 73 Hawkes v. Whaley, Royce & Co 671 Hayes v. Smith 316 Hays V. Eldor Am. Co 324 Hays?>. MiHer 314 Hay ward v. Hay ward 184 Hazzard v. Hoxie 230 Heap V. Hartley 71 Hearne v. Stowell 283 Hefel V. White Land Co 516 Hegeman v. Hegeman 479 Hegeman v. Springer 637 Hcin V. Harris 576 Heine v. Applcton 27 Heineman v. Smart Set 26 Hcndershott v. Modern Woodmen 310 Henderson v. Tompkins. . 534, 535, 594 Hendricks v. Thomas Pub- lishing Co 617 Hene v. Samstag 538 Heneky v. Stark 85 Hennessy v. Herrmann 467 Henry v. Cherry 269 Henry ». Dick 46, 484 Henry Bill Pul)l. Co. v. Srnythc 647 Herbert v. Fields 39, 40, 52 Herbert v. Shanlcy . . . 340, 341, 348, 392, 649 I Icrbert r. Universal Talking Machine Co 277 Herbert v. Weber 52 Hereford (Hislu.p) r. Cridin 29 Page Heme v.. Liebler 41, 68, 75 Herrick v. Wixon 322 Herring v. Gas Consumers Ass'n 45 Herzog v. Heyman 633 Heye y. Tilford 47 Hicks V. Maxton 181 Hier v. Abrahams 456 Higgins V. Franklin Co 325 Higgins V. Keufel 518 Higgins V. Lacroix 358, 371 Hillzj. Gibbs 44 Hill V. Haberkorn 105 Hill». Lockwood 468 Hill I'. Whalen 542, 582 Hillis & Co. ?^. Hoover 623 Hillman v. Star Publ. Co . 269, 275 Hills V. Austrich 516 Hills t'. Hoover 516, 623 Hilson V. Foster 411 Hinton v. Locke 125 Historical Publishing Co. v. Jones 582, 584, 602, 620 Homng,Inre 192 Hodges V. Mayor 359 Hodkins v. McDonald 191 HofTman v. Bond 349 Hoffman v. LeTraunik. .535, 603 Hole V. Bradbury. . . .51, 67, 646 Hollenback v. Clemmer 307 Hollis V. Kansas City Assoc. 332, 334 Holmes?'. Hurst.. 13, IS, 496, 507, 546, 556, 560, 561 Holmes v. United Theatres. . 311 Home Fire Ins. Co. v. Barber 144 TAULK OK CASES XXXV PA(iK Homo (tf Iii('l)iiat('s r. San Francisco 21'.) Hopkins Amuse. Co. r. I-'roli- inan 417, IM Horner r. (Jtiardian Mut. Life Ins. Co N;i Homey r. Nixon.. .2i)2, 293, 294 Il'jstetter v. Hrueggenian. . . . 461 Houck r. Ingles ;J9.J Howard /•. Carlton 455 Howard r. Daly 147, 14S Howard v. Ilenriciucs 41S Howard r. Lovett 443, 477 Howard v. Woodward 102 Howe V. Rohin.son 120 Howell V. Miller 591 Howley Dre.s.ser Co., In ro 040 Hoxey i\ Chaney 400, 47!) Hoyt r. Hates 553 Iloyt V. Fuller 99 IIul)l)ar(l /'. Mathews 530 Huijhard v. Miller 102 IIul)l)anl r. Taunton 21!t H'.ihhanl r. 'V\un\\\)s{)\\ (iO? Ilubheil ('. Koyal Paslinic Amusement Co ('».") 1 Hubges /'. Helasco 505 Hud.son Bldff. Co. /-. Coin- pa^iiic CliMi. Tninsatlaii- ti(iue 143 Hubinger v. Kddy 401 Huebsch v. Crist. .5!)4, 59S, 013, OlS Hughes r. Stratham 479 Hull, Re C. W 395, 397 Hull I'. 86th St. Amusement Co 298 Humiston v. Universal Film Mfg. Co 28.5 Humphrey J". Sea Gull Sjx?- ciahy Co K2 Humphries v. Armstrong.. . . 605 Humphries r. Tiiompson.. .50, 57 lluneckc /•. W. lirighton Am. Co 300, .323 Hunt r. Bennett 209 lluntington v. Claflin 143 lluist ;•. Picture Theatres, Ltd 297 Hyde r. Toronto Theatre .32S Hydecker /•. Williams 110 lekes V. State 210 Ide r. Brown 104, 175 Iliodor Picture Corp. v. Mich- ailoff 431 Illinois Central v. Byrne. . . . 195 Iiuperial Curtain Co. r. Strauss 22!> Imperial Film lOxchange, In re 202 Inchbald r. Robinson 253 Indian Rubber Co. r. Ruljber Comb. Co 450 International Cheese Co. r. Pluenix Cheese Co 450 Interstate Amusement Co. r. Albert. 17S, 191, 190, 2.50, 2.5S, 201 Interstate Am, Co. v. Martin 322, 32S Investor Pul)lisliing Co. of Ma.ss. /'. Dobinson I }.> XXXVl TABLE OF CASES Page lolanthe Case 61 Isaacs r. Daly 408, 447 Ivan Film Productions r. Bell 356, 377 Jackel V. Nixon & Zimmer- man 259 Jacko V. State 537 Jackson, Matter of. . : 489 Jackson v. Baker 317 Jackson v. Moore 44 Jackson v. Walkie 511, 519 Jacob V. Schiff 271 Jacobson, Ex parte 392 Jacobson v. De Mille 573 Jacoway v. Young 465 Jaeger's Co. v. Le Boutillier . . 473 Janney v. Pan-Coast Ventil- ator Mfg. Co 413, 449 Jaques v. Natl. Exhibit Co.. . 254 Jeffries v. N. Y. Evening Journal 280,281, 284,287 Jeffrys v. Boosey. . . 492, 560, 662 Jenkins v. Jackson 255 Jerome v. Queens City Cycle 156 Jeup V. State Fire Marshal . . 369 Jewelers' Mercantile Agency V. Jewelers 496, 505, 506 Jewel Theatre Co. v. AN'in- ship 362 .Jewish Col. Ass'n r. Sf)lomon 468 .loliiison r. Donaldson. .560, 57)}, 574 Jolinson /'. lluiui)lirey Pop- ("(.rn Co 340 Jdliiison Co. r. IlunI 97 Page Johnson v. Sparrow 298 Johnson v. Wilcox 310 Johnson v. Wilkinson 292 Johnston Harvester Co. v. Meinhardt 202 Johnston v. Orr-Ewing 461 Jolhe V. Jaques 403 Jones V. American Law Book Co 62 Jones V. Sandford 250 Jones V. Van Zandt 593 Joseph V. Bidwell 298 Joseph V. Elliott 396 Journal Pub. Co. v. Drake. . 637 Joyner v. Moore 298 Julian V. Hoosier Drill Co. . . . 450 Jung Brewing Co. v. Com- monwealth 255 Jurgens r. Woodberry 466 Kaiser v. (Jinberg 245 Kaiser Wilhelm Second 529 Kalem v. Harper.. 2, 338, 418, 431, 587, 610 Kalisthenic Ex. Co. v. Em- mons 379, 389, 390 Karnor.PatheFreres. . .537, 589 Karst r. Prang Educational Co 86 Kathreiner v. Pastor-Kneipp 456 Kay-Tec Film Exchange, In re 227, 263 Kcanc r. Wheeler 144 Kecne v. Wheatley 582 Keener v. Moslamlcr 21 1 Keith?'. Kellrrman. 101, 16S, 1>S7 TABLE OF CASES XXXVli PA(iIO 'Keith & Proctor r. Bingham 393, 400 Kolly V. Hylcs 44.S •Kelly /'. Cakhvoll 123, 140 Kelly r. London Pavilion. . . l.'iO Keiulull /'. West 113, 208 Kennedy r. J'rcss Pul). Co.. . 65 Kennedy r. Holfe SI Kenyon r. \Vei.> 581 Menendoz r. Holt . .450, 452, 450 Merivale v. Carson. . . 204 Merle V. Soc. Research* .200, 272, 280, 282 MerivU r. Tice 593, 598 Merriam Co. v. Famous S. & C. Co 438, 439 Merriam Co. r. Halloway Pul). Co ". 438 Merriam Co. v. Ogilvie. .438, 439, 442 Merriam Co. r. Strauss 438 Merriam Co. /•. Saulficl(1.430, 438 Merriam Co. r. Texas Siftings Co 438 Merriam Co. r. United Dic- tionary Co 517, 593 Message Photoplay Co. r. Bell 354 Messenger r. Press Publ. Co. . 281 Messenger r. State 280 Messer r. Fadettes 400, 478 Metropolis Theatre Co. r. City of Chicago 352, 359 Metropolitan Opera Co, r. llammerstein 210, 201, 489 V.KC.K Mctroptjlitan Ex, Co. r. Ward 100 Metts p. Charleston Theatre 3^11 Mctzlcr r. Wood 440 Meyer v. CJrand llapids Chair Co 311 Meyer r. Rcdmund 197 Meyers r. Walton 179 Michelstree r. Stair 310 Mifflin V. Dutton. .13, 18, 511, 540, 5.^)0 Mitiliiir. White. 13, 18,511, 540, 550 Miles Medical Co. v. Park & Sons 202 Millar r. Taylor 490, 018 Miller v. Lawrupcc •143, 248 Millington v. Fo.x 401 Mills r. Standard Music Roll Co 545, 019 Mines v. Scrilmer 490 Ming n. Pratt 150 Miracle Co. v. Danziger. .413, 443, 4.54 Mirsky /•. .\dler 333 Mitchell r. Hawley 481 Molloy V. Starin 315 Monaiian v. Taylor 587, 588 Montague r. Flockton. . . 123, 143 M(jntgomery r. Ladjing 330 Montgomery r. Water- bury 592 Moore V. Coyne 80 Moore r. Edwards 21 Moore r. Owen 398 Moore r. Rugg 590 Morang r. Lo Sueur. .58, 89, 207 xlii TABLE OF CASES Page Morang v. Publishers' Sj'^n- dicate 671 Morasse v. Brochu 283 Morgan v. Roberts 50 Morgan v. Rogers 466 Morgan v. Walton 455 Morgan Envelope Co. v. Al- bany Paper Co 587 Morosco V. Fendall 574 Morris v. Briggs 144 Morris v. Colman 72, 96 Morris v. Kelly 497 Morrison v. Belcher 63, 203 Morrison v. Hurtig & Seaman 136, 162 Morrison r.'Pettibone 623 Morrison v. vSmith 283 Moshier v. Kitchell 50 Moss V. Donahue 529 Moss Motion Picture Corp. v. Ivan Film Prod., Inc. 426, 447 Mo.ss V. Tompkins 150, 247 Motion Picture Patents Co. v. Universal Film 485 Motorboat Pub. Co. v. Motor Boating Co 440 Mott Iron Works ?'. Clow. . . 541 Moul V. The Coronet Theatre, Ltd 588 Mu(konfa.ss, Ex parte.. .392, 397 Mulicr V. M(;Kess()n 315 Mullor V. Rittersville Hotel. . 235 Mundcn v. Karris 273, 278 Munro v. Tousey. .405, 406, 433, 4 17 Page Murray v. Gast Lithographic Co 269, 270 Murray v. Walter 203 Murrellz;. Smith 318 Muser v. Robertson 599 Mutual Film Corp. v. City of Chicago 387 Mutual Film Corp. v. Hodges 387 Mutual Film Corp. v. Indus- trial Commission Ohio. 288, 384 Myers v. Callaghan 519 Nahser v. City of Chicago 255, 365, 371 Nash 2). Krieling 141, 213 National Car Brake Co. v. Terre Haute Co 457 Nat'l Cloak & Suit v. Kauf- man , 532, 541 Nat'l Cloak & Suit Co. v. Standard Mail Order Co. . . 541 Naulty V. Bulletin Co 64 Ncet, E.\ parte 397 Neher v. Viviani 242 Neilson v. Horniman 578 Nelson v. A. H. Woods Prod. Co 127 Nelson Theatre Co. v. Nelson 242, 247 Neplilor V. Woodward 309 Nethensole v. Bell 567 Neucndorff v. Duryea 395 Neufeld v. Chapman 82 New Castle v. Cicnkinger. . . . 381 New Fiction Co. r. Star Co. 26, 5:51, 545, 553, 577, 578, 580 TABLK OF CASES xliii Pack New Theatre r. Ilartlove. . . 30S New Tivoli v. Happy Fanny Fields lOG New York v. Eden Musec. . . 398 New York City r. Pine 610 New York r. Williams '.VM't New York, Matter of 396 New York Academy of Music r. Hackett 79, 150, 242, New York Bank Note Co. r. Hamilton Engraving Co. 624, 625 New York Herald r. Ottawa 475 New York Herald r. Star Co 475 New York Life Ins. Co. r. Allison 233, 234 N. Y. Motion Picture Co. v. Universal Film 489 N. Y. Phonograph Co. v. Davega 67 N. Y. Star Co. v. Sun Print- ing ife Pub. Ass'n 598 N. Y. Times v. Star Co. .502, 597, 598 Newcomer r. Blaney 120 Newhall r. .\ppleton 125 Newman r. (latti 105, 141 Newman v. Zachary 202 Nichols r. Amalgamated Press 82 Nill.son V. De Haven 82, 592 Nillson r. Lawrence. .37, 39, 42, 44 Ni.sbet V. Golf Agency 32 Nixon V. Doran. .93, 569, 570, 603 Pagk Nixr)n & Zimmerman v. Ijco. LiLsh Co ZU) N. K. Fairbank-s Co. r. Wind- sor 4.'i5, 4.')6 Noack r. Wo.'^slick 299 Noebius r. De Jong & Co. . . . 453 Norton v. Hudner 311 Nottage r. JacLson 596 Oakes v. Tonsmierre 480 Oakland r. Bingham. . . .301, 327 O'Brien r. Jones 592 O'Callaghan r. Dellwood Park Co 323 O'Connor r. Amicmr Packing Co 139 Oellers v. Horn 343 Oertel r. Jacoby 506 Oertel r. Wood 492 Ogilvie V. Merriam Co. . .438, 442 Old Colony Trust Co. r. Du- buque Co 608 Oldknow r. City of Atlanta . . 367 Oliver r. Lansing 232, 235 Oliver r. Rumford 67, 646 Oliver r. State 397 OUendorf r. Black 662 Olympic A. C. v. Bingham ... 400 Oneida Community v. Oneida 455, 459 O'Neill V. General Film Co. 2.'), 492, 493, 498, 573, 574, Oriental Society, In re 262 O'Rourke, Matter of 371 Orr V. John.son 457 Orton V. Brown 359 xliv TABLE OF CASES Page Osborne v. Schenck 40, 41 Osgood V. Allen. . . .403, 446, 455 Osgood V. Aloe Instrument Co 513, 593, 595 Outcault V. Bonheur 91, 592 Outcault V. Lamar. .405,417, 443, 474 Owen V. Partridge 279 Owens V. Assoc. Realties 301, 308 Oxford ^'. Leathe 334 Pagano v. Beseler 539 Paige V. Banks 548, 618 Palace Theatre v. Clency. .99, 104 Palestine v. Minor 255 Palmer v. De Witt. .21, 492, 493, 494, 496. 497, 504, 583, 580 Palmer v. Nat'l Sporting Club 270 Palmer v. Snow 391 Pankhurst v. Kinsman 47 Pappas V. Miles 151 Paris V. Commonwealth .... 255 Park V. Morgan 359 Park & Pollard Co. v. Kellcr- strass 620 Parker v. Cushman 315 Parker v. Hyde & Behman Amuse. Co 113 Parkinson v. Lasellc 511 Parry ». American Opera Co. 145 Parsons r. Manser 315 Partlow V. Ilaggerty 314 I'arton v. Prang. . .492, 506, 554, .59() Page Pastor V. Solomon 167 Patrick v. Wood 345 Patterson v. Ogilvie Publ. Co.. 523, 554, 594, 618, 619, 638, 644, 645 Pattison v. Hammerstein .... 335 Pattison v. Li\nngston Am. Co 308 Paulton V. Keith 197, 345 Pavesich v. New England 273, 283 Pearce v. Spaulding 292 Pearson, Ltd., v. J. P. O'Con- nor 448 Peck V. Tribune Co 269, 283 Peerless Feature v. Fields 98, 110 Penrose v. Nixon 254 People ex rel. Edison v. As- sessors 648 People ex rel. Rota v. Baker 354, 375 People ex rel. Bonfiglio v. Bingham 350 People ex rel. Park Circle Am. Co. V. Board of Police 350 People V. Brown 393 People V. Busse 371 People V. Campbell 341^ 342 People V. Coleman 359 People ex rel. Lodes v. Dept. of Health 354 People V. Dixf)n 399 People V. Doris 357, 373 People r. Dunford 395 P(!()ple V. lOwcr 176 TABLE Ol' CASES xlv Page IVcplor. Finn 393, 31)5 IVopIc ox rcl. .Jacques r. Flalierty 370 IVople ex nl. liurnliani r. Flynn 2<)1, 2% I'eople ex rel. Valensi v. Flynn 393 People ex rel. Moses r. Clay- nor -.308, 301 People ex rel. Schwab v. C;rant 3.'>0,3.")4 l'eoi)le V. Ilammcrstein 398 People r. Hart 294 People r. Ilaym 398 People r. I lemleb 393, 394 I'tMtplo V. Jensen 370 Pcoplo ex rel. Bender v. .Joyce 394 People r. Keller 341, 348 I'coplc V. Kennedy 340 Pcoi)Uw. Kins 292, 298, 341 People r. Kingston 400 Peoi)lc r. Klaw 489 Peojile ex rel. United States Aluminum Co. r. Knight. . G18 People ex rel. Kicley r. Lent 3.">!), 300, 307, 39.5 People ex rel. \'alensi v. Lynch 393 People V. Marks 382 People V. Martin 341, 348 People ex rel. McXulty r. Maxwell 3.-)0 P(M)pl(> (>x rel. Armstrong v. Murphy 37.") People ex rel. Keller /'. Oak Park 303 Page People t. O'Gorman .396 Pf'ople ex rel l^mge p. Palmitter 36.'), '.iXi I'eoplcex rcl. Klingerr. Hand .394 People ex rel. John.son v Roberts 048 People r. Royal 341, .342 People V. Samwick 370 People ex rel. Jacques v. Sheriff 381 People r. Steele 382 People V. Stevens 1 76 People V. Trippi 370 People r. Wacke 34 1 People ex rel. Ritter r. Wal- lace 340 People ex rel. Schau v. Wil- liams 3.30 People ex rel. Cumiskey v. Wurster 349, .352, 3^ Pepl(; V. Corastock 68, 75 Pepper r. Labrot 466 Perley v. Shubert 258 Perris r. llexamer 560 Perry v. Bates 117 Peters v. Borst. . 27, 34, 36, 208 Pettes V. American Clock Co. 463 Pevely r. Poole 114, 208 I'hila. Ball Club v. Lajoie 96,109 Philii);'. Pennell 493 Philipp Co. r. New York Staats-Zeitvuig 260 Pliillil)s r. Alhaitibra Palace 101 Phillips r. Inez 391 Phillips V. Wisconsin State. . 325 xlvi TABLE OF CASES Page Phoenix Ins. Co. v. Continen- tal Ins. Co 102 Photo Drama Motion Pict. Co. V. Social Uphft Film Corp.. 2, 5, 9, 11, 12, 48, 110, 496, 553 Pierce v. Werckmeister . .505, 511, 513, 593 Pierpont v. Fowle 548 Pieschel v. Miner 313 Piexotto V. Board of Educa- tion 355 Pike V. Nicholas 570 Pitts zj. Hall 37, 46 Placide v. Burton 166 Planche v. Braham 562 Planch6 v. Colburn 77, 90 Pointer v. Mountain R. C. C. 323 Polkr. Daly 147 Pollock i». Shubert 131 Pollard V. Photographic Co. 272, 596 Popplewell V. Pierce 314 Porter v. Freudenberg 530 Posen V. Schvvarz 425 Posner Co. v. Jackson 202 Pott V. Altemus 604 Potter V. McPherson. .406, 441, 506 Potter ?'. Watt 366,380 Pou.ssard r. Spiers 157 Powell I'. Head 37, 39 Powers r. O'Neill 336 Pratt V. Montegriffo 105, 106 Pratt V. Paris (Jasliglit r. l]nglish Illustrated Magazine 56 Ridgway Co. v. Amalgamated Press 409,448 Riddle r. McFadden 278 Higiioy r. Dutton 521 Rignoy r. Rapliael 521 Ritchie v. Sayres. 608 Ritter v. Wallace 354, 355 Roherson v. Rochester Fold- ing Box Co 2()S, 273, 277, 280, 290 Ro!)erts v. Myers 30, 581 Robertson v. Berry . .61, 404, 441 Rohorts r. Sheldon 4^8 Rohey r. Arnold 145 Robcy r. Stratton 145 Robinson r. Davison. 156, 157, 161 Robin.son v. Illustrated lAm- don News 552 Robinson r. Textile Publ. Co. 278 RobI V. Palace Theatre. . .571, 576 Rock r. Lazarus . . . , 5.32 Hodgors /•. N.)\vill 469 H.ulwcll r. Rotlgo 193 Rogers /'. l-A'arts 202 xlviii TABLE OF CASES Page Rogers v. Rogers 313 Rogers v. International Silver Co 468 Rolfs V. Pooley Furn. Co. . . . 156 Romeike v. Romeike 481 Root t'. Railway 582,609 Roquemore, Ex parte 397 Rosbach v. Sackett & Wil- helms Co 163 Rose Ball v. The Tribune .... 283 Rose V. McLean Publishing Co 412,440 Roseneau v. Empire Circuit . 257 Roserie v. Kiralfy 139 Rosenwasser v. Amusement Enterprises 247 Ross V. Raphael 521 Roumfort Co. v. Delaney .... 369 Rosenberg v. Arrowsmith . . . 397 Rothenberg v. Packard 144 Routledge v. Low. .661, 662, 665 Roy Watch Co. v. Carman Roy Watch Co. . 459 Royal Albert Hall v. London Council 344,347 Royal Aquarium Soc. v. Park- inson 360 Royal Baking Powder v. Ray- mond 450,453 Royle V. Dillingham 56, 59 Roys V. Johnson 193 Rudge-Whitworth, Ltd., v. Houck Mfg. Co 110 Hugglfs?'. Eddy 582 I{upi) & Wittgenfcld v. ElUot 587 Page Rushbrook r. Grimsby Pal- ace Theatre 183 Russell V. Briant 588 Russell V. Notcutt 204 Russell V. Smith 339, 340 Russia Cement v. LePage. . . 466 Russo V. Orpheum Theatre 327,331 Saake v. Lederer. . .531, 583, 593, 598 Saltus 1'. Bedford 592 Salvation Army v. Salvation Army 455 Sampson & IVIurdock v. Seaver-Radford Co. . . 1 1 1 , 609, 620 Sanborn v. Dakin 610 Sands v. N. Y. Life Ins. Co.. 528 Sargent v. McLeod 48, 50 Sarony v. Ehrich 637 Sarpy v. Holland. . .348, 587, 649 Savage v. Hoffman. . .20, 496, 536 Savage v. Kerkcr 420 Savage r. Nccly 85 Savery v. Ingersoll 150, 151 Sawyer v. Kellogg 452, 468 Saxe /'. Shubert.. ....... 114, 208 Saxlchner v. Eisner. 449, 450, 456, 468 Saxlchner v. Siegel-Cooper Co 421,456 Sayrc v. Moore 561 Scarano v. Leinlcin 164 Schimkcvitz /'. Hiiighani .... 400 Schlcuter v. Billiagheimcr. . . 255 TABLE OF CASES xlix Page Schmidt Case 182 Schnizer v. Philips 300, 312 Schlesingcr r. Bedford 022 Scldotz r. AnuLsis 500 Schoclkopf, Matter of 237 Scliofield i\ Wood 304 Schonberg v. Cheney 81 Schreiber i\ Sharpless. . .591, 637 Schulz V. Raiines 530 Schuinachor r. Schwciickc 27. 32, 550, 590, 627 Schuyler v. Curtis 270 Schwab V. Anderson Steam- boat Co 323 Schwab r. Mullcr 126 Schwartz v. India Rubber.. . 180 Schwarz v. WyUe 574 Schweitzer v. Hamburg, etc., Gescllschaft 182 Scott V. McXaughton 193 Scott r. University of Mich- igan 325 Scribncr v. Allen Co 532 Scribncr v. Clark 532 Scribner v. Kelly 310 Scribncr v. Strauss 46, 486 Scrivcn v. North 459 Sea Gull Specialty Co. v. Humphrey 82 Sebeck v. Plattdentsche Volk- fest 332 Security Trust Co. v. Temple Co 233.234,235 Selchow I'. Baker 409 Selig Polyscope Co. r. Mutual Film Corporation 432, 444 Selig Polyscope Co. r. Uni- corn Film Service Corp. 421, 422, 425, 441, 451, 454 Selinas v. Vonnont State. . . . 325 Sclwyn r. Waller 189 Serrena r. JefTerson. . 19, 538, 572 Sharplcss v. Lawrence 421 Shaver v. Holler & Herz 403 Shaw's Jewelry Shop v. X. Y. Herald 253 Shaw V. Collins 449 Shaw V. McCreary 313 Shechan v. Railroad Co 38 Sheets r. Sunbry 311 Shelley r. Bethel. .260, 344, 347, 348 Shelby V. Emerson 381 Shephcard v. Whitaker 283 Shepherd v. Bingham 400 Shepherd v. Conquest 31 ,37 Sherman v. Marinolli 538 Sherwood v. Crane 117 Shook V. Daly 492 Shook I'. Rankin 25, 492 Shook V. Woods 429, 459 Shubert v. Angeles 1(X) Shubert v. Coyne 10."] Shubert v. Laughlin 245 Shubert v. Nixon 292, 294 Shubert v. Sondheim 243 Shubert v. Woodward. . .111,246 Shutt V. Lewis 343 Sigmon v. Goldstone 164 Silver r. Holt 632 Singer Mfg. Co. r. June Mfg. Co 439 1 TABLE OF CASES Page Singer Mfg. Co. v. Long 457 Simmons v. Mansfield 461 Sims V. Marryat 557 Simms v. Stanton 571 Simplex Automobile v. Kahn- weiler 438 Sizer v. Ray 592 Skinner v. Oakes 479, 480 Slingsby v. Bradford Truck Co 615 Sloan V. Williams 67 Smiles v. Belford 671 Smith V. Benick 332 Smith V. City of Raton . . . 248, 350 Smith V. Clinton 65 Smith V. Cumberland Soc. . . 332 Smith V. Daily News, Ltd. . 591 Smith V. Dodd 647 Smiths. Dunn 47 Smith V. Herring-Hall-Mar- vin Safe Co 178 Smith V. Robson 113 Smiths. Utley 209 Smith r. Wilcox 127 Snow V. Laird 637 Snow V. Mast 516 Snow V. McCracken 314 Snowden v. Noah 446 Soane v. Knight 64 Social Register Ass'n v. How- ard 408 Social Register Assoc'n v. Murphy 446 Society V. Ncusbach 341 Sociological Research v. Waldo 350,372 Page Solman v. Arcaro 103, 175 Solomon v. United States ... 27 Sosman v. Coulon 233, 234 Southern v. How 469 Southern Ry. v. Myers. . . 194, 195 Southey v. Sherwood 492 Spahn V. Winter Garden 118 Spain V. Manhattan Street Co. 113 Spaulding v. Rosa. .48, 156, 157, 159, 161 Speake v. Powell 263 Speckman v. Kreig 315 Spicer v. Waters 499 Spiegel V. Zuckerman 411 Spires v. Los Angeles 249 Spooner v. Daniels 64,209 Spooner v. State 398 vSpring V. Edgar 313 Springer v. Falk 637 Springfield v. Thame 23 S. F. Co. V. Siegel-Cooper .... 98 St. Cyr V. Sothern & Marlowe 81 St. James Hall Co. v. London County Council ,. 244 St. Joseph V. Elliot 398 St. Louis V. Fischer 365 Stair V. Kane 325 Stamp V. 86th St. Am. Co. . . . 317 Standard Am. Pub. Co. v. Methodist Concern 68 Standard Fashion Co. v. Siegel-Cooper Co 96 Standard Sanitary Co. v. United States 489 Standard Scale & Foundry Co. V. McDonald 630 TABLE OF CASES ii Page Stnndine r. Brady 142, 162 Standidpe v. Lyndc 102 Star Co. V. Press. Pub. Co. . . 103 Star Co. r. Wheeler Syndi- cate 470 Sttite r. Burnes 399 State V. Chamberlain 393 State ex rcl. Ebert v. Loden 350. 367 State V. French Opera Ass'n 380 State V. Herald 398 State V. Lynch 248 Stater. Mason 210 State r. Morris 340, 393 Stater. O'Hara 352,359 State V. Penny 393, 39G Stater. Prather 397 State V. Roscnfield 346 State r. Ryan 398 State r. ScalTor 191, 345 State r. Schonhauser,. . .352, 359 State V. State Journal Co . . . 506 State Board of Agriculture v. Meyers 144 Stearns r. U. S 637 Steelier v. Dunston 505, 517 Stein V. Bell 356, 375 Stoppachor v. Karr 459 Sterling r. Bock 133 Stern v. Laemmle 6, 71, 72 Stern r. Remick 504, 517 Sternberg r. O'Brien 98 Stevens v. Benning. .51, 67, 69, CAi) Stevens v. Cady. .496, 554, 610, 645 Page Stevens r. Chicago Feature Co 114 Stevens v. Gladding. .534, 554, 590, 610, 026, 636, 645 Stevens v. McKibbin 47 Stevens v. Morenous 396 Stevens r. Wildy 45 Stevens r. William 463 Stevenson v. Fox.. 25, 569, 573, 574, 620 Stevenson v. Glasgow 303 Stevenson v. Harris 573 Stewart v. Cobalt Curling. . . 303 Stewart v. Reuters Telegram 63 Stewart r. Thayer 129, 398 Stickel r. Riverview Sharp- shooters 333, 334 Stiff r. Cassell 72 Stimpson v. Min.sker Realty Co 250 Stockdale v. Onwhyn 535 Stokes V. Allen & White 446 Stone r. Dugan 541 Stone r. Long 88 Stone r. Oconomowoc 250 Storer v. Downey 365 Stott V. Gamble 226, 351 Stott, Ex parte 226 Stover V. Lathrop 499 Stowe V. Thomas 560, 564 Strackosch r. Strackosch 118, 156 Strafford r. Stetson 123 Straus r. Victor 48^^ Strauss r. Am. Pub. Ass'n. . . 489 Strauss v. Francis 64 lii TABLE OF CASES Page Strauss v. Hammerstein . . 127, 231 Strauss v. Notaseme Co 452 Strauss v. Pen Printing Co. 514, 617 Stringer v. Frohman 447 Strobridge Litho. Co. v. Crane 97 Stuart V. Smith 197, 590 Sturgis V. Coleman 366 Sturgis V. Grau 366 Sturgis V. Hayman 365 Sturtevant Co. v. Fireproof Film Co 196 Suburban Press v. Phila. Co. 61, 441 Suesskind v. Bingham 400 Sugar V. Monroe 250 Sutherland v. Wyer 147, 148 Swan V. Tappan 64 Sweet V. Benning 28, 550 Sweet V. Evans 28 Swezey, In re 479 Swords V. Edgar 302 Syers v. Conquest. .342, 348, 649 Tabart v. Tepper 64 Taft V. Smith, Gray & Co. . . 499 Taftv. Stevens 521 Tams V. Witmark. . .72, 583, 596 Tacndsticksfabrik.s A. Vulcan V. Meyers 455, 460 Tannenbaum v. Rehm 369 Tarling v. Fredericks. . . .340, 346 Ta.sker v. Shopliord 70 Tate?'. Full brook 21, 537 Taylor r. Caldwell 48, 241 Taylor z*. Cohn 292 Page Taylor, v. Oilman 591, 637 Taylor v. Hearst 283 Taylor iJ. Nast 443 Taylor v. Sawyer Spindle Co 608 Taylor v. Waters 292 Teichner v. Pope Mfg. Co. . . 114 Terry v. Brighton Aquarium 341, 398 Terry v. Moss's Empires, Ltd. 1 19 Te.xas State v. Britton. . .306, 332 Theatre De Luxe v. Gledhill 351, 361, 371 The King v. Dimock 352 The Mikado Case 52, 508 The Sarah 140 Thedford Medicine Co. v. Curry 469 Thill tJ.Hoyt 160 Thomas v. Abrahamson 420 Thomas v. Bayson 316 Thomas v. Beaver Dam Mfg. Co 157 Thomas v. Bradbury 63, 203 Thomas v. Gatti 263 Thomas v. Lennon 497 Thomas v. Springer. 168, 187, 335 Thomas v. Williams 298 Thoinbleson v. Black 554 Thomp.son v. Hubbard. .511, 513 Thompson v. Lowell 321, 332 Thomp.son v. Shackcll 64 Thompson v. Tillford 275 Thorne v. French 77, 80 Thornton v. Agricultural So- ciety 332 TABLE OF CASES liii Pagk ThrinR r. Lucas 170, 220 Tivoli, Manchester, v. Colley 90 Tiihacco Co. r. Hynes 401 Todd Protectogniph Co. r. Hirscliberg 213 Todd r. Koone 150, 1.5,3 Toiisoii r. Collins 492 Tonialin r. I'carson 180 Tompkins r. Ilallock. .493, 494, 504, 580 Town of Davis v. Davis 255 Trade .\uxiliary Co. r. Mid- dlcsl)()rou«hT. P.Ass'n... 37 Trailing r. Messenger 348 Tree v. Bowkett. .30, 45, 71, 224, 22S, 557 Trengrou.se v. "Sol" Syndi- cate 502 Triangle Film Corp. r. Art- craft 202 Tribune Co. of Chicago r. A.ssociated Pre.ss. .23, 540, 010 Triggs r. Sun Printing & Publishers A.ss'n 05 Trow Directory r. Boyd. . . . 590 Troy City Directory v. Cur- tin 593, 594, 030 Trustees r. Lewis 249, 350 Tuck &, Sons r. Priester 072 Tully r. Triangle.. 531, 5S0, 005 Turgeon v. Connecticut Co. 301, 300, 332 Turner v. Robin.son 500 Tuttle r. La Dow 07 Twiggar r. Ho.senberg 390 Tyler c. Tyler 40 V.KGE United Drug Co. r. Rec- tanus Co 453, 455 United (3il Co. r. Grey ICA United States v. Edgar 192 United States v. Gay 192 United States r. Greathouse 531 United States r. Motion Pic- ture Patents Co 201, 488 United States r. Taylor 280 United States v. Thompson . . 192 United States v. White 030 United Vaudeville Co. v. Zeller 390 Universal Film Mfg. Co. v. Bell 355, 350, 373 Universal Film Mfg. Co. v. Copperman . . 485, 497, 507, 555, 017, 022 Universal Talking ^Lachine V. English 97 Unwin r. Clarke 20;i Vail ('. Jersey Co 143 \'alenti v. N. Y. Theatre Co. 245 \'alentine r. Richardt 010 Valentine Co. v. Sloan. . .308, 309 Van Antwerp c. Linton 30() Van Cleef v. Chicago 319 \'anderbilt r. Mitchell 273 Van Doren r. Baity 40 \'an Xordeii v. Server Com 355 Vassar College r. Loose Wiles 272, 278 jVent r. Osgood 175 Vernon v. Shubert 507, 572 liv TABLE OF CASES Page Vernon Abstr. Co. v. Wag- goner Title Co 505 Victoria Pier Syndicate v. Reeve 367 Village of Des Plaines v. Poyer 252, 254 Violettet?. Rice 140 Virginia Hot Springs v. Hege- man 452 Vitagraph v. Swaab 224, 236 Vitascope Co. v. U. S. Phono- graph Co 648 Vogel V. St. Louis Museum 196, 210 Von Thadorovich v. Franz Joseph Beneficial Ass'n. . . 273 Vredenburg v. Behan 315 Wade V. Hefner 162 Wade V. Rob't Arthur Thea- tres Co 117, 144 Wade j;. Waldon 204 Wagner v. Conried 506 Wagner v. Wilson 586 Wagstaff V. Edison Bell 253 Wahle-Phillips Co. v. Fitz- gerald 233 Wahle-Pliillips v. Fifty- Ninth St. & Madison Ave. Co 234 Waite V. Aborn 189 Waite !•. O'Xcil 610 Wakeman v. Wheeler. . . .79, 150 Waldo t). Seel ig 366, 380 Wales?'. Baily 125 Walker, In re 363 Page Walker v. Brewster 253 Walker v. Crown 202 Walker v. Fuhrman 358 Walker v. Globe Newspaper Co 496 Walker v. Tribune 63, 64 Wall t;. Bailey 120 Wallt>. Gordon 506 Wall V. Taylor 348, 587 Wallenstein v. Herbert 52 Wallick V. Society 345 Walsh V. Hyde & Behman. . . 331 Walter Baker Co. v. Dela- penha 411 Walter v. Emmott. .404, 448, 455 Walter v. Howe 28 Walter v. Steinkopff 23 Walton V. Godwin 160 Walton V. Mather 118 Wamser v. Browning-King. . 336 Wandt V. Hearst's Chicago- 340 American 283 Ward V. Beeton 72 Ward Lock & Co. v. Long 28, 33, 76 Warheit t'. The Day Pub. Co. 71 Warne v. Routlcdge 7 Warner v. Brighton Aquarium 340 Warner v. Roehr 469 Warner v. The Rector and Trustees 139 Wash. Luna Park v. Good- ricli 323 Waterman v. McKenzie 582 jWaterman v. Shipman. .69, 74, 406, 633, 646 TABLE OF CASES Iv Page Waters r. Leech 369 Watkins v. Thurraan 114 Watson V. Cowdrey 499 Watson V. Russell 122, 1G5 Watts V. Fraser 209 Watts V. Unione 528, 529 Watts V. Van Ness 391 Waycross v. Sossman. . . .234, 235 Weatherby & Sons v. Intern'l Horse Agency 591 Weaver v. Klaw 115, 208 Weber r. Freed 379, 389 Weber v. Mapes 85 Weber-Stair t>. Fisher. .. .329, 331 Webb r. New Haven Theatre 234 Webb V. Powers 594, 621 Webber v. Chicago 340 Webster v. Daly 568 Weil V. Xevin 209 Weiner v. Scherer 305, 318 Weiss V. Skinner 293, 329 Weistblatt v. Bingham. .337, 339, 348, 392 Welcome v. Thompson 409 Weld V. Fruhling 529 Weldon v. Dicks. . .403, 521, 532 Wells r.Haflf 157 Wells V. Minn. Baseball 299 Wells Am. Co. v. Means 331 Welty V. Jacobs 247 Wendell v. Baxter 302 Wendelb. Conduit Mach. Co. 281 Wentworth v. Riggs 336 Wentworth r. Whitney 158 Werckmeister v. Am. Litlio- graphic Co 486, 505, 513 Page Werckmeister r. Springer Lith. Co .532 Werner r. Encyclopedia. . . . 610 West Publ. Co. V. Lawyers' Co-op .590 West Publishing Co. v. Thompson 496, .>13, 609 Westermann v. Despatch 612, 638 Westwater v. Rector 146 Wheaton v. Peters. .495, 496, 506, 511 Wheeler v. Cobbey 636, 638 Wlieeler r. Wheeler 40 Wheeler v. Woods 144 Wheeler Syndicate v. Star Co. 474 Whistler v. Ruskin 64 White V. Constable & Co ... . 78 White V. Geroch 493 White V. Henderson 125 White V. Osborn 40 White V. Shapiro 541 Whiter. White 281 White Dental Co. r. Sibley. . 574 White-Smith v. Apollo. . .550, 560 White-Smith v. Goff 548 Whittaker v. Howe 102 Whitten, ^L'\tterof .350, 368 Whit well, E\ parte 252, 344 Whit wood r. Hardman 92, 99 Wichita Falls Co. r. Adams 333, 334 Widmer r. Thompson 6, 74 Wigan r. Strange 21 • Wilder ;•. Kent 554, 645 Willard i\ Tayloe 109 Ivi TABLE OF CASES Page Williams v. Butler 157 Williams v. Davenport 203 Williams v. Feldman 11 Williams v. Mineral C. P. A. 312, 325 Williams v. Moray 314 Williams v. Wright 348, 391 Willis V. Lowery 163 Willis t>. Tibbals 73 Winter German Opera, Ltd., In re 263 Wirth V. Calhoun 129, 398 Witkop & Holmes Co. v. Boyce 107 Witmark v. Peters 103 Witmark v. Standard Music Roll Co 545 Wm. Rogers Co. v. Rogers. . . 98 Wolf Cigar Stores v. Kramer 140 Wolfe 0. Howes.. 48, 50, 133, 156, 165 Wood V. Butterworth 61 Wood V. Cunard Steamship Co 499 Wood V. Leadbitter 292 Wood /'. Miller 143 Wood V. Saiidow 203 Woodbridge v. Marks 314 Woodman v. Lydiard-Peter- soii Co 611 WoodrutT 77. Painter 336 Woods V. Brodcr 251 Woods Prod. Co. t. Chicago 261, 396 Woodside v. Tonopah Ill , Woolcolt D. Shubert 295 Page Wooster v. Crane.. 67, 531, 578, 582, 614, 618 Worden v. New Bedford .... 249 World Film Corporation v. Foy and N. Y. Motion Pic- ture Corporation 110 Worthen v. Love 316 Worthington v. Batty 579 Wright?;. Eisle 505 Wright V. McCampbell 50 Wright 27. Tullis 24, 616 Wyatt V. Burnard 26 Wyatt V. Hall's Port Studio. . 278 Wyatt V. McCreery . 275, 278, 281 Wyatt V. Phipps 125 Wyatt V. Rosherville Gar- dens 313 Wyatt V. Wanamaker. .278, 281 W. W. V. Co. y. Black 292 Yale & Towne Mfg. Co. v. Adler 475 Yearaans v. Tannehill 76 Yerrington v. Greene 50, 69 Yorkvillo v. Bingham 361 Young V. Am. Opera Co. . 157, 159 Younger /-. Judah 299, 328 Yuengling v. Schile 526, 527 Zamco V. Hammerstein 161 Zenatello v. Hammerstein 128, 162 Zcrralin o. Dltson 248 Zicgfeld V. Norvvorth 97, 112 Ziegfeld Follies, Inc., v Gus Hill 445, 454 Zuccaro, Kx parte 397, 398 THE LAW OF MOTION PICTURES CHAPTER I THE AUTHOR Rights in his Literary Works Sec. 1. Where the motion picture is basoiluponaclramaticcomposition. 2. Where tlie motion picture is l)ased upon a novel or liistorical work. 3. Where the motion picture is based upon a short story, sketch, poem, lecture, sermon or other kindred work. 4. Where the motion i)icture is based upon an original scenario, that is one not based upon any other work. 5. Where the motion i)icture is based upon a news item. 6. Where the motion picture Ls based upon a work in the public domain. 7. Wliere the motion ])icture is produced in serial form. 8. Where the relationship is that of employer and employe. 9. Where the motion picture material has been N\Tittcn by more than one person. 10. Nature of the contract of co-authorship. 11. Where music has been written specially to accompany the cxhil)ition of the motion i)icture. 12. Where the motion picture producer has not followed the text of the work upon which the motion picture is based. 1.3. Criticism of the work. Section 1. — Where the motion picture is based upon a dramatic composition. We shall consider first the various rights and liabilities that are croatod when the author or pro])riotor of a })lay grants producing rights with respect to the same. 1 THE LAW OF MOTION PICTURES Where the author or proprietor of a play grants to a play producer the exclusive license for the dramatic pro- duction of that play by living actors upon the stage he may not thereafter grant to another the right to produce that play in motion picture form. This seems to be the accepted rule even where, at the time of the granting of the play rights, neither of the parties contemplated the production of the play by means of motion pictures.^ The reason for this rule is founded on the principle that the prior exclusive grant conveys a valuable property right. Inasmuch as a motion picture reproduction of such play is a dramatic work,^ the exhibition of such motion picture constitutes an invasion of the exclusive dramatic rights originally granted to the producer of the play upon the stage with living actors.^ Were this not so, the anomalous situation would arise ^Frohman v. Fitch (1914), 164 A. D. (N. Y.) 231; 149 N. Y. Supp. 633, in which Clyde Fitch granted to Frohman in 1900 the exclusive producing rights to "Captain Jinks of the Horse Marines." Nothing was then contemplated or mentioned by the parties as to motion pictures. Thereafter, on the death of Fitch, his father granted to the American Play Company, the motion pic- ture rights. It was held that Frohman was entitled to an in- junction restraining the moving picture production. See also: Klein V. Bcnrh (1910), 232 Fed. ,(D. C.) 240, opinionby Mayer, J.; aff'd 239 Fed. (C. C. A.) 108, opinion by Hand, J.; Harper Bros. V. Klaw (1916), 232 Fed. (D. C.) 609. ^Knlcm V. Harper (1911), 222 U. S. 55; 32 Sup. Ct. 20. 3 Frohman v. Fitch (1914), 164 A. D. (N. Y.) 231; 149 N. Y. Supp. 633; Photo Drama Motion Pict. Co. V. Social Uplift Film Corp. (1915), 220 Fed. (C. C. A.) 448; Klein v. Beach (1916), 232 Fed. (D. C.) 240; aff'd 239 Fed. (C. C. A.) 108; Harper Bros. v. Kkiw (1916), 232 Fed. (D. C.) 609. WHERE BASED UPON A DRAMATIC rOMPOSITION 3 whoroin the author could grant the exclusive dramatic riglits to j)roduce the play upon the stage and simul- taneously with its production on the stage, could grant a license to reproduce the play in motion pictures to third parties, the exhibition of which would seriously interfere with, or even destroy, the production upon the stage with living actors. This situation was imminent in the recent case of Harper Brolhers & ano. v. Marc Klaw & ano^ In that ♦ Harper Bros. v. Klaw (1916), 232 Fed. (D. C.) G09, Hough, J.: " If by the jiRreement of 1S99 the defeiuhint had been granted the exchisive right of dramatizing 'Ben Hur' or producing any play or plaj's tiiat might be made out of 'lien Ilur,' there would be no doubt at all as to their right to make a ' mo\'ie plaj' ' as well a.s the kind of play that has heretofore been produced. . . . But the grant made l)y that agreement wa.s far more limited. The right conferred wa.s to produce one version only, and that in a par- ticular manner, and in places limited in cities of a certain size. The contract prohibits any change in the manner of performance or text, and contains provisions as to royalties and their computation confes.sedly incapable of applica- tion to any method of producing photo-plays in commercial use or known to witnesses or coun.sel. It is unnecessary to expand this thought, the whole arrangement made between the parties in 1899 is not only inconsistent with but repugnant to the thought of mak- ing 'movies' out of 'Ben Hur.' "This differentiates the ca.se at bar from Frohman v. Filch (1914), IW A. D. (X. Y.) 231, with which I fully concur, but these defendants never got so ample a grant as did Mr. Froh- man. "It follows, since the copyright covers a photo-plaj' and Klaw &. Erlanger got no licen.se to make or produce one, they would in- fringe if their threat were carried out — therefore they must be en- joined. "Plaintiffs assert and almost a.ssumo that since defendants cannot make a 'moN-ie' out of 'Ben Hur' and such right must THE LAW OF MOTION PICTURES case Klaw & Erlanger had acquired from Harper Bros. the exclusive right to produce a dramatization of the novel ''Ben Hur." Klaw & Erlanger claimed that under the contract they had the right to reproduce the drama- tization in the form of motion pictures. Harper Brothers contended that they had granted Klaw & Erlanger a license solely to produce the play upon the stage with exist somewhere, it is in them, — the copyright estate to the delri- as being an unconveycd portion of the copjTight estate where- from was carved defendants' limited license. "In strictness of law, I think this is true, hut it does not always follow that because one oions a certain thing he may xise it to the detriment of another especially if the owner is under contractual obligations to such other. "The 'movie' rights to 'Ben Hur' undoubtedly existed in 1899, but in nubibus or (what is frc(iucntly the same thing) in contemplation of law only. As a matter of fact they are an accre- tion or unearned increment con- ferred of late years upon the copy- right owners by the ingcMiuity of many inventors and mechani- cians. "It is my opinion tlicrc is im- plied a 7icgalivc corcnanl on the part of the plninliffs {the grantors of dcfendnnla' restricted license) not to use the ungrantcd portion of ment, if not destruction of the licensee's estate. "Admittedly if Harper Bros, (or Klaw & Erlanger for the mat- ter of that) permitted photo-plays of Ben Hur to infest the country, the market for the spoken play would be greatly impaired if not destroyed. "This being the fact, the law is analogous to that which implies from a covenant to make a cer- tain use of property, a covenant negative against doing anything else with it (High on Injunction, 4th Ed., Section 1151a, and cases cited). "The result is that plaintiffs may take the injunction jK-ayed for against the defendants, and the defendants may have the same relief against plaintilTs. The meaning of such double injunction is that as long as the contract of 1899 exists, neither parly thereto can produce n photo-play of Hen Hur except by bargain with the other." WHERE BASED ITON A DRAMATIC COMl'OSl TION O living actors, and sought to restrain tiicm. The latter countcrclaiiiu'd that even assuming they had nothing but tlie riglil of stage i)ioducti()n, nevertheless they were entitled to enjoin the plaintiff from making a motion pic- ture version of the i)lay during the term of the license. While the court found that the defendants Klaw & Erlanger had been merely granted a license to produce the play upon the stage with living actors and restrained them from making a motion picture version thereof, yet it granted judgment on the counterclaim, enjoining and restraining the plaintiffs, Harper Brothers, from making a motion picture reproduction of the play during the hfe of the license. However, the original grant to produce the play upon the stage with living actors, does not divest the author of his right to produce the play in motion pictures. His right to produce the play in motion pictures is merely suspended during the term of the license granted by him to the producer of the play upon the stage. ^Mien the agreement granting the exclusive license is silent on the question as to whether the play is to be pro duced with living persons upon the stage or fails to men- tion any other specific method of production, — in other words, where the author grants "all dramatization rights," the licensee secures not only the exclusive right to pro- duce the play upon the stage with living actors, but he secures as well the exclusive right to make motion picture reproductions of such play.^ ''Photo Drama Motion Picture 448, Lacoml)c, J.: "Oir" Kauf- Co. V. Social Uplift Film Corpora- man wrote a novel entitled ' Tlie tioti (191')), 220 Fcil. (C. C. A.) House of Bondage' He assiRncd THE LAW OF MOTION PICTURES The licensee secures the sole right to produce or repro- duce the play and with it the accompanying right to restrain invasions of his Ucense,^ only when his grant is exclusive. Where no mention is made in the agreement of the exclusiveness of the grant, the court will assume that the grant is not exclusive, and the author may grant the same rights, for the same period, to third parties/ question of fact might depend on whether the performance was substantially one appealing to the his right to copyright the same to MofTatt-Yard & Co. Moffatt- Yard & Co. duly secured copy- right. That gave them exclusive rights to publish and sell the novel; also to make dramatiza- tions of it, whether in the usual form for acting on the stage of a theatre or in the more recent form of a motion picture play. Moffatt-Yard & Co. assigned «/^ dramalization rights to Kaufman. He then had exclusive right to make dramatizations of either kind." See generally in this connection : London Theatre of Varieties v. Evans (Eng.) (1914), 30 T. L. R. 258. An actor agreed that he would not give or permit the giv- ing of any colorable imitation, representation or version of his performance within a specified area. Held that it was a cjuestion of fact wlu'thor a motion picture reproduction f)f the act was in fact a colorable imitation, repre- sentation or version of the same; that the determination of the eye which could be reproduced or to the ear which could not be re- produced. The court also stated that a reproduction of an operatic performance would not as a rule be a representation of the opera, the singing of which was the primary feature, while in the case of a music hall sketch it could be such a representation as to amount to a representation thereof. ^Widmer v. Thompson (1878), 56 How. Pr. (N. Y.) 91; Barnett V. Q. & C. Co. (1915), 226 Fed. (C. C. A.) 935; Stern v. Lnemmk (1911), 74 Misc. (N. Y.) 262; 133 N. Y. Supp. 1082. ' Hart V. Cort (1913), 144 N. Y. Supp. 627; 83 Misc. (N. Y.) 44: A contract was made granting a license to the defendant to jkm'- form "LaTosca." The contract contained terms of limitation respecting time and place but no WHERE BASED UPON' A DUAMATIC COMPOSITION 7 Whore, instead of a license for a limited period, there is an absolute sale, by the author or proprietor of the rij^iit to produce the play upcjn the stage, the right of tlu- author or ])ro])rietor to rejiroduee the same play in mo- tion pictures is forcN'er suspended. Hence, in such a case, neither licensor nor hcensee would have the right to make a motion picture reproduction of the play, nor grant such a right to third parties, except by mutual consent, — unless the play comes into the pu))lic domain. In each instance where the question arises as to whether the grant is one of all the dramatic rights or merely of the motion picture rights or the right to produce the play upon the stage with living actors, it is a question of law for the court as to whether or not, from the context of the contract, the parties intended to convey an un- limited or limited grant. It has been held in Klein v. Bcacli that the phrase "presentation on the stage" construed in connection with other provisions respecting production of a play by stock companies, stage scenerj'', &c., had reference only to the production of the spoken play in theatres, and that as statement that tlie license was publisher for the publication of exclusive. It was held that un- her work. Before the sale of all less the term "exclusive" or the copies of the edition is-sued "sole" or other words expressing by the first publisher she entered an intention to grant an exclusive into a new contract with another license were used, there was no ])ul)lisher for a second edition of exclusive grant. the same work. Held, that since Warne v. lioiitlalgc (Eng.) .she had granted no cxchisicc right (1874), 43 L. J. Ch. GOt; L. U. IS to the first publisher she was at Eq.4n7;:«)L.T.S.-)7;22W. IJ.7r)0: lil)erty to contract with other An authoress contracted with one parties. 8 THE LAW OF MOTION PICTURES at the time the contract was made, the production of motion picture plays was a well-known business, it was not intended that the contract should carry the exclusive right to dramatize for that purpose, but that such right remained in the author.^ In Harper & Bro. v. Klaw, the preamble of the contract recited that the defendants were to obtain "the exclusive right of producing such dramatic version on the stage" and the body of the contract contained a provision that Klaw & Erlanger were granted the sole right of ''pro- ducing on the stage" or "perfonning" the "dramatic version" thereof. It was there held that that portion of ^ Klein v. Beach (1917), 239 Fed. (C. C. A.) 108, Hand, J.: "The actual words of grant are these: 'tlie sole and exclusive right to dramatize the said book for presenfaUon on the stnge.' The plaintiff insists in view of Kaleni Co. V. Harper, 222 U. S. 55, 32 Sup. Ct. 20, and Frohman v. Fitch, 164 App. Div. 232; 149 x\. Y. 'kipp. 633, that dramatic rights include motion picture rights. If used alone that is doubtless true, especially if the contract antedate the commercial use of motion pictures. Yet Judge Hough in Harper v. Klaic, 232 Fed. (D. C.) 609, held on a contract dated in lcS99 that the words 'the exclimire right of pro- dvcing such dramatic rrrsiori on the stage,' did not give to the grantee any motion picture rights, al- though it is true, he also held that such a grant raised by impli- cation a negative covenant against destroying the effect of such a grant by motion pictures. That decision would avail the plaintiff here, if the date of this contract had been so early; it will hardly serve at the end of November, 1911, long after motion pictures had become common and the distinction between them and the stage proper had for all pur- poses become well fixed. There is no basis for an implied nega- tive covenant, because tlie situa- tion has not changed since the contract was made so as to create an unexpected situation if tlie terms be strictly inter- preted." WHERE nASF.I) rrOX A DltAMATIC COMl'OSITION' <) the preamble and body of the contract, taken in conjunc- tion with tlie fact that at that time (1899) the motion picture art was m its infancy, did not pass the motion- picture rights to the Ucensee.® In Photo Drama Picture Co. v. Social Uplift Film Co., comphxinants claimed that by securing all dramatization rights, complainants' assignor possessed the exclusive motion picture rights. This construction of the grant was admitted by the answer,"' and was acquiesced in l)y th(» courts ' The situation may arise where the author or proprietor of a play before the play has been produced upon the stage, grants an exclusive license to reproduce the play in motion pictures, and subsequently thereto attempts to produce the play liimself or grants to a third party the right to produce the play upon the boards. This may be the case with plays, which after being reproduced in motion pictures, become well known to the public. Query: Has the motion picture producer the right to enjoin any stage production of such play upon the theory followed by the courts in FroJiman v. FitcJi- While the question has not yet arisen before the courts, there seems to be good reason for believing that the rule laid down in the Frohman case will be followed. ■' Harper A Bros. v. Klaw & No. 102, Januarj-, 1915, also /WflMf/cr (1910), 232 Fed. (D. C.) known under the designation 009. SoooxcorptofJiids^oIIough'.s Record No. oloO, ir. S. Circuit opinion on pages o antl 4. Court of Appeals — Southern Dis- '" Photo Drama Picture Co. v. trict of New York. Social Uplift Film Co., United ''Photo Drama Picture Co. v. States Circuit Court of Appeals Social Uplift Film Co. (1915), for the Second Circuit, Record 220 Fetl. (C C. A.) 448. 10 THE LAW OF MOTION PICTURES The decision in that case is based upon the theorj^ of unfair competition. Where all the elements of unfair competition exist, it would be only reasonable to assume that it makes no difference which is first granted and produced — the motion picture or the play. Since they are both in the same class, the production of each being a dramatic performance, the courts must protect him who was first given the grant and who first produced the work. Because I own a play and sell you the motion picture rights, I have no right thereafter to exploit my play to the detriment of your rights. To avoid that situation, the author or proprietor of the play may provide in liis contract with the motion picture producer that he expressly reserves to himseK or his assigns, during the period of the motion picture grant, the right to perform the play with Uving actors upon the stage. Then again, we may be confronted with a case wherein the proprietor of a successful and well-known play, after its performance on the stage for several years, finally grants an exclusive Ucense for its reproduction in motion pictures. May he then, during the term of such grant, continue to perform his play with hving actors upon the stage? Here, a contrary situation is disclosed. The proprietor of the play was the fu-st user of the property — the pro- prietor of the motion picture rights, the second user. The latter knows of the prior user. He makes his bargain with that in mind. If he wishes to have the exploitation of the play upon the stage suspended (hiring the period of his license, he should Jiot only bargain for the motion WHERE HASED UPON A NOVEL OU HISTORICAL WOUK 1 1 picturo rit:;hts, l)ut also obtain a covenant from tho licensor, i:i which tlie latter agrees to refrain from continuing the stage performances during the period of his license. Section 2.- Where the motion picture is based upon a novel or historical work. With the coming in of the so-called "feature films" film producers soon found that then- chief source of material for such films, to wit: dramatic compositions, was rapidly becoming exliaustcd. They naturally turned for new material to novels and historical works; and these have now become a prolific source of motion picture feature film material. The question at once arises as to who may grant the motion picture rights to such works. A motion picture reproduction of a novel being a dramatization, the mo- tion pictui'e rights are vested in the owiier of the dj-amatic rights. ^- As between the author and the publisher it is always a question of contract in each case whether the author has retained or parted with his dramatic rights. A mere license to publish does not give any performing rights to the publislier.'"' Under the Copyright Law the owner of the copyright >* Photo Drama Motion Picture tion of the novel witli liviiiR Co. V. >^ucial Uplift Corp. (1915), actors upon the stage, and tiie 220 Fed. (C. C. A.) 448, which right to reproduce the novel in holds that the grantee of the ex- motion pictures, elusive dramatization riglits to a " iri7//(/m.s' ct al. v. Fildman, novel accjuires two distinct rights: (Eng.) (1913), Times, Oct. IS. the right to make a play produc- 12 THE LAW OF MOTION PICTURES in a novel has the exclusive right to dramatize the work." Hence, where the pubhsher of a novel copyrights the work of an author, a third party purchasing the motion picture rights to such novel, without notice of the rights of the author, buys them free from any claims which the author may have as against the pubhsher. If the record in the copyright office shows that the pubhsher is the owner of record of such copjTight, the purchaser is not bound to inquire what relationship exists with respect to the work between the pubhsher and the author. ^-^ As a matter of fact the pubhsher may be holding the copyright as trustee for the author; his rights may be limited to the extent only of reproducing the novel in copies for sale. But if the copyright record does not dis- close any such relationship a purchaser for value without notice buys free and clear. If the author wishes to retain his rights it is advisable " Copyright Act of 1909, Sec- have suspected, although an ex- tion 1, subdivision (b). Photo amination of the record title Drama Motion Picture Co. v. provided for by law shows good Social Uplift Corp. (1915), 220 title. This, to my mind, would Fed. (C. C. A.) 448. place a duty upon a person dcal- ^^ Bradij \. Reliance Co. (1916), ing with the owner of a copy- 232 Fed. (D. C.) 259, Mayer, J.: righted work which the law "Where a publisher copyriglits a never contemplated, and which work of an author tlicre must of from the standpoint of com- necessity exist some arrangement mercial requirements would be between them, and that, per- unjust, and seriously hamper legit- chance the author may have re- imate dealings." See also: Photo served something undisclosed Drama Motion Picture Co., Inc., which the person dealing witl; v. Social Uplift Film Co. (1915), the owrur of tl»c copyright should 220 Fed. (C. C. A.) 448. WHERE BASED UPON A NOVEL OR HISTORICAL WORK 13 for him to file an instrument in the copyright office setting forth the fact that the copyright is held by his pubUsher as a trustee merely, subject to specified limita- tions. Anything which would put the prospective pur- chaser of the motion picture rights upon incjuiry would probably be sufTicient. The author, by faiUng to have some notation made in the copyright office of his rights against the publisher, does not, however, lose his remedies against the publisher for the breach of the trust. The registration of the copy- riglit in the name of the assignee (publisher) does not confer the dramatic rights upon the assignee whore they had been retained by the author. Under such an ar- rangement the assignor (author) becomes the proprietor of the dramatic rights secured by the copjTight in the name of the pubhsher.^^ There arises the querj', where motion pictures are produced by assignees both of the author who originally retained the right, and of the third party who purchased the rights from the publisher, as to who may enjoin, if at all, the exhi])ition of the motion picture of the other. It would seem to follow, from a reading of Judge ^Mayer's •« Ford V. Blaney Amusement of the magazine and that the Co. (190G), 14S Fed. (C. C.) dramatization rights remained in 642: Tlie work was published in the autlior. See also: Mifflin v. a magazine wliich was copy- White {lim), 1<)0 U. S. 200; 23 righted by the magazine pro- Sup. Ct. 709; Mifflin v. Duttun prietor. It was held that by (1003), 190 U. S. 205; 23 Sup. Ct. selling his right to copyright but 771; Holmes v. Ilurd (1S99), 174 reserving to himself the drama- U. S. 82; 19 Sup. Ct. GOG; Dam v. tization rights, the work was Kirk La Shelle (1910), 175 Fed. copyrighted by the copyrighting (C. C. A.) 902. 14 THE LAW OF MOTION PICTURES decision in Brady v. Reliance Co., that the publisher's assignee has the exclusive right to the production of the picture, and that the right of the author's assignee is suspended during the term of the grant from the publisher to his assignee. If there is an outright sale to the third party by the publisher of the motion picture rights, the author loses such rights forever. Many of our most popular novels are based upon his- torical events. There is no question that these events are within the public domain. Let us take the case of a historical novel written to-day and based upon some familiar historical subject, the development of the theme adhering closely to the sequence of the events as they actually occurred. Let us assume that this novel is duly copyrighted, and that the author or proprietor of the novel grants away the motion picture rights. Will the licensee acquire such rights in the arrangement and de- velopment of his theme as will preclude another from producing a similar picture? Q\0^ We do not think so. ;^ The arrangement and develop- ment of a well-known historical theme cannot strictly be said to be original, and while the novel as a whole may be the subject of copyright, yet those portions of it which treat of things within the public domain cannot acquire the protection of copyright. Anyone may make an independent dramatization from the common source but must not make use of or resort to the liconsoo's dramatization or the novel from which the dramatization was made. For the same reason a motion picture based directly WHERK PICTURE IS BASED UPON A SHORT STORY, ETC. 15 upon a well-known historical episode, instead of upon a novel and duly e()i)yriglited can acciuire no exclusi\e ri^ht, and the proprietor may not enjoin the reproduction of another i)icture portraying the same historical event or sequence of events. This rule is, of course, sul)ject to the limitation that in the original novel or motion picture the events spoken of are purely historical, ^^^len these events are so inter- spersed with imaginative fiction as to constitute a com- plete story in themselves, the treatment may then be said to be original and a reproduction of the work with the imaginative fiction contained therein, constitutes an infringement. Historical events are themes in the pubhc domain. Wliat is accorded protection in the case of themes in ', sketch, poem, lecture, seniion or other kindred work are identical with those of a novelist.'^ The rights and liabilities which arise upon the sale of such work by the author or proprietor " See cases of iiifrinp;cmcnt " Copyright Act of 1909, See- under Sections 157 to IGl. tion 1, subdivisioix3 (a), (b), (d). 16 THE LAW OF MOTION PICTURES to a motion picture producer are the same as those which arise between a novehst and motion picture producer. ^^ It is customary for the pubUsher of a periodical or newspaper to copyright the entire work in his own narne. If he has been authorized by the author or proprietor of the work to secure copyright, but the rights granted to him are solely that of pubUcation of the work, the maga- zine or newspaper proprietor holds the copyright as trustee for the author or proprietor of the work."° " Section 2, upon the sale of the book , which ^Ford V. Blaney (1906), 148 is alleged in the complaint in Fed. (C. C.) 642: "I think, under this provision (referring to Section 4952 of the U. S. Re- vised Statutes) it is not necessary that the author himself should have taken out the copjTight of a book, in order to preserve the right of dramatizing it, but that the author can sell the copyriglit of the book to a per- son, wlio, as proprietor, can take out the copyright, while the author, at the same time, retains the right of dramatization. If a copyright of a book has been obtained by anybody entitled by law to obtain it, I think that the author of the book or his assigns, a term which as used in Section 4952, means in my ojjinion an assignee of the riglit of dram- atization, has the exclusive right to dramatize the work, if he reserved the right to dramatize this case. The object of the statute seems to have been to provide that the author's right of dramatization of a book shall not be protected unless the book be copyrighted; but / do not see anything in the statute which re- quires that the author shall take out the copyright of the book." In Drone on Copj'right, at page 260: "A person who is not the author or owner of a work may take out the copyright in his own name, and hold it in trust for the righlful owner. Thus, when an article has first been published in a cyclopjcdia, magazine, or any other publica- tion, the h^gal title to the copy- right, if taken out in the name of the publisher, will vest in him. But it may be the property of the author, and held in trust for him. And the same is true when WHKRE Py'TlUE IS HASt:D UPON A SHOUT STORY, ?:TC. 17 Here, as in tlie case of a novel,'-' care must be exercised by the author or i)roprietor of the work, if he has re- tained any riglits therein, to have something placed upon the copjTight record to show what rights have been granted to the publisher and what rights have been retained. Where the author or proprietor of the work wishes to resers'e the dramatic rights, the usual arrangement is for him to make a contract with the publislier granting the exclusive publication rights to the publisher and au- thorizing him to copyright the work. The pubhsher on his part agrees to assign the copyright when secured by him to the author or proprietor of the work. This enables the publisher to copyright the entire periodical or news- paper and at the same time obtain the benefit of a first publication. The publisher then assigns his copjTight to the author or proprietor of the work, who now becomes possessed of all the rights incidental to copjTight, in- cluding, of course, the right to dramatize. In this way there is no dedication, the magazine ])ub- lisher is the first one to publish the work, and the author or proprietor of the work now has the dramatization rights which include the motion picture rights.-- the copyrlRht of a l)0()k wliich and Express v. Life Pitbl. Co. belongs to the author is entered (1912), 192 Fed. (C. C. A.) S99. in the name of the pubhsher. *' Section 2. In such case, a court of ecjuity, ^' Ford v. Blawy (190G), HS if called upon, may decree a Fed. (C. C.) 642; Dom v. Kirk transfer of the copyrip;ht to be La Sheik (1910), 17.') Fed. (C. C. made by the owner." See al.so: A.) 902; Fitch v. Young (1911), Dam V. Kirk La Shellc (1910), 2.30 Fed. (D. C.) 743; aflf'd 239 175 Fed. (C. C. A.) 902, and Mail Fed. (C. C. A.) 1021. 18 THE LAW OF MOTION PICTURES If the author or proprietor of the work wishes to secure the copjTight in his own name he may do so by placing the proper notice of copyright immediately after the title of his work and by depositing, promptly after pub- Ucation, two copies of the periodical or newspaper in which his work is contained together with an apphcation for copjTight registration, and the required fee, in the office of the Register of Copyrights. -^ Finally, it must be borne in mind that if the publisher is not given the right to copyright the work contained in his periodical or newspaper, though he has been given the right to pubhsh such work, the work vnW not be protected by a copyi'ight secured upon the entire pub- hcation by the proprietor of the periodical or newspaper, and the work will fall into the pubhc domain. In that event any motion picture producer may use the work without securing the consent of the publisher, or the author or proprietor of the work.-'' 23 Copyright Act of 1909, Sec- proprietor in copyi'ighting the tions 9, 10 and 12; Rules and- magazine, secures copyright only Regulations for Registration of in those parts of the magazine Claims to Copyright, Section which belong to him or for the 33. owners of which he is acting as ^* Mifflin V. White— Mifflin v. agent. The fact that the work Dutton (1903), 190 U. S. 2G0-265; was published in serial form and 23 Sup. Ct. 709-771. Tlie publi- subseciuently coml)ined in one cation of a story in a magazine, complete work and such com- the ownership of such story re- plete work entered in the copy- maining in the author, and the right office did not validate the publisher not l)eing the agent copyright. See also: Holmes v. of th(! author in securing copy- Hurst (1S99), 174 U. S. 82; 19 right, constituted a dedication Sup. ("t. 00(). of tlie work. The magazine On tfie question wliether there is WHERE BASED UPON AN ORIGINAL SCENARIO 10 Section 4. — Where the motion picture is based upon an original scenario, that is one not based upon any other work. \Miethcr or iK^t a scenario of a motion picture play may be the subject of copyright as an unpublished dramatic composition, is an open question. The Register of Copy- rights has taken the position that Section eleven of the Copyright Act retiuires the deposit of "one complete copy of such work if it be a dramatic composition," and that a scenario is not a completed work and hence does not fulfill the requirements of that section. In this respect we bcheve that he is \\Tong. To our mind a scenario is a completed work in that it is an exact i reproduction, in words, of action upon the screen. It^ embodies witliiii itself the orderly arrangement and de- velopment of a theme that enables actors to reproduce the same before the camera. In that respect it is similar to a play, wliich is primarily a veliicle to enable actors to portray the same upon the stage. Both the scenario and tlie play have as their primary object the attainment of this end. .Vnd the fact that in the play we have dialogue should not alter the situation. The scenario frequently has what the play lacks — minute directions as to acting. And wliile it is doubtless true that mere stage directions and stage business are not entitled to protection under the Cop}Tight Law,-^ yet where the composition tells a n presumption that the magazine v. Scribner (1S92), 144 U. S. 488; proprietor acts a.s agent for the 12 Sup. Ct. 734. owner of the work in securing *^ Serrena v. Jefferson (1888), copyright. See: Pulte v. Derby 33 Fed. (C. C.) 347; Bloom v. (1852), o McLean, 328; Bdford Xixon (1903), 125 Fed. (C. C.) 20 THE LAW OF MOTION PICTURES story not in narrative form, but by words giving direc- tions as to acting and display of emotions, it is as truly a dramatic composition as a work narrating a story in the form of dialogue.-® 977; Chappell v. Fields (1914), 210 Fed. (C. C. A.) 864; Savage V. Hoffman (1908), 159 Fed. (C. C.) 584; Fuller v. Bemis (1892), 50 Fed. (C. C.) 926; Bishop v. Viviana & Co. (Eng.) (1909), Times, Jan. 5. For additional cases see Section 148. ^'^Daly V. Palmer (1868), 6 Blatchf. 256: A scenario is a dramatic composition under the description given in this case. "A dramatic composition is such a work in which the narrative is not related but is represented by dialogue and action. Where a dramatic composition is repre- sented in dialogue and action by persons who represent it as real, by performing or going through with the various parts or charac- ters assigned to them severally, the composition is acted, per- formed, or represented; and if the representation is in pul)lic, it is a public representation. To act in the sense of the statute is to represent as real, by coun- tenance, voice or gesture that which is not real. A cliaractor in a play who goes through a series of events on the stage with- out speaking if such be his part in the play, is none the less an actor in it than one who, in addi- tion to motion and gestures, uses his voice. A pantomime is a species of theatrical entertain- ment in which the whole action is represented by gesticulation without the use of words. A written work, consisting wholly of directions set in order for conveying the ideas of the author on a stage or public place, by means of characters who repre- sent the narrative wholly by action is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas." The Circuit Court of Appeals in Daly v. Webster (1892), 56 Fed. (C. C. A.) at p. 486, ap- proved of the excerpt of the opin- ion of Judge Blatchford quoted above. Fuller V. Bemis (1892), 50 Fed. (C. C.) 926: "It is essential to such a composition that it should tell some story. The plot may be WHERE BASED I'PON A.\ ORIfJINAL SCENARIO 21 A play may have greater literary \alue, yet the srenario usually possesses, for its own peculiar purposes, a greater practieal value. The author of a scenario should not l>e compelled to publish his work in book form in order to secure copyright therein. The scenario is not written for the i)urposc of l)eing reproduced in copies for sale. If our position is correct, the rights of the author or proprietor of a scenario are coincident with those of the author or ])roprietor of a dramatic composition. He has the exclusive right to make other forms of dramatiza- tions of the scenario, he may develop the scenario into the form of a short story or a novel." He may reproduce the scenario in copies for sale. An outright sale of the manuscript of an uncopyrighted scenario or of the copy- right of a copyrighted scenario conveys to the purchaser all the rights which the author had.-" simple. It vunj be bid the nana- Moore v. Edwards {Eng.) (190.3), tire or reprcfientation of a single Tiiiu's, March 3: Ilelil that a transaction; but it mitst repeat or "scenario" of a play when written viimic some action, speech, emotion, clown was the .subject of protec- passion, or character, real or tion, a.s a dramalic composition. imaginary. Ami when it does, it Wiganx. Strange (Eng.) (1865), is the idea-f thii.'i expressed which L. R. 1 C. P. 17."): A ballet was become subject of copyright." held to be a play. Tate V. FiUlbrook (Eng.) (1908) , «' See Section 1. 77 L. J. K. H. 577; 1 K. B. 821; ^Palmer v. DeWitt (1872), 47 98 L. T. 70C; 24 T. L. R. 347. X. Y. 532: "This proix-rty in a An idea or plot together with the manuscript is not distinsuishable manual and physical actions was from any other personal property, held to be "a dramatic |)iece" It is poverned by the .same rules within the meaniiiK of Section 2 of transfer ami succession and is of the English Copyright Act of protected by the same process, 1842. and has the benefit of all tlie 22 THE LAW OF MOTION PICTURES Hence in the usual transaction between a scenario writer and a film producer where the scenario is pur- chased for a lump sum of money, the author of the sce- nario divests himself of all rights in and to the same and the film producer acquires the sole right not only to make a motion picture reproduction of the scenario, but also to make any and all of the above mentioned versions of the same. Here, as in the case of a novel or drama, the author may limit the grant by express reservations in the contract of sale. Wliere there is no contract of sale, but a sale, that is, where the manuscript and money are simultaneously ex- changed, the producer acquu-es all rights in the scenario.-^ remedies accorded to other prop- author in assigning the right to erty." It follows "the person of the owner, and is governed by the law of his domicile." 29 Dam V. Kirk La Shelle (1910), 175 Fed. (C. C. A.) 901: "Now, as a matter of law, it seems pos- sible to draw only one conclusion from the facts surrounding the acquisition of the story by the Ess Ess Publishing Company, and that is that it became the pur- cha.scr, and consequently, the proprietor of the work, with all the rights accompanying owner- ship. The author offered the story. The publislier accepted and paid for it, and the author transferred it without any reser- vations whatever. "While it is probalilc tliat an publish and vend his work may retain and reserve the rights of translation or dramatization {Ford V. Blaney Amusement Co. (1906), 148 Fed. (C. C.) 642, a sale or as- signment without reservations would seem necessarily to carry all the rights incidental to ownership. And a transaction in which an author delivers his maniiscript and accepts a sum of money 'in full payment for. story' cannot be re- garded as a sale ivith reservations. The courts cannot read words of limitation into a transfer which the parties do not choose to use." Sec also: Lacy v. Toole (ICng.) (1867), 15 L. T. N. S. 512, wherein it wa,s held that a letter written by the owner of a copyright in a WHERE PICTURE IS BASED UPON A NEWS ITEM 23 It froquently happens that in vending his wares tiio scenario writer sends copies of the same work to a ninnher of motion picture producers. Several of the producers purcliase the scenario, each not knowing that some other producer has purchased the same work. The first pur- chaser in point of time will be the owner of the scenario, for at the time that the other producers accept the offer of the scenario WTiter, there is nothing that they can purchase, the author having been divested of his title to the scenario by the prior purchase of the work. Section 5. — Where the motion picture is based upon a news item. It is well settled that the facts and ideas contained Li items in the daily newspapers, and held out to be state- ments of fact, may be appropriated and used in any manner by any one of the pubUc.^° The phrase above dramatic piece to another in tcrnational News Service (1917), wuich he said: "to let you have 240 Fed. (D. C.) 983; aff'd June, my drama" assigned all the rights 1917, opinion by Hough, J. ; Walter in the drama. v. Slcinkopff (Eng.) (1892) , 3 Ch. ^0 Tribune Co. v. Associated 4S0; Springfield \. Thame (Eng.) Press (1900), IIG Fed. (C. C.) (1903), 89 L. T. 242; Press Asso- 126, and cases cited therein. In ciation v. Xorthcrn, etc., Agency Dnvics V. Bowes (1913), 209 Fed. (Eng.) (1910), Times, Dec. 8. (D. C.) 53; aff'd 219 Fed. (C. C. See in tliis connection: Ex- A.) 178, the court said: "All tliat change Telegraph Co. v. Howard wivs ever copyriglited regarding (Eng.) (1900), Times, Mar. 22. this tale was tlie form of telling, A news agency has a projx>rty the sequence and choice of words right in unpublished news, and and arrangement of sentences may prevent a rival agency from coined by the plaintiff. . . ." stealing the same. See also: Associated Press v. In^ 24 THE hAW OF MOTION PICTXJKES used ''held out" is used advisedly. Even where the news item is a creation of the mind of the reporter, and hence, an original work, yet if the work is pubhshed as news and not as fiction, the author or proprietor of the work wdll not be permitted to show that the work was one solely of his creation. ^^ Where, however, the work pubhshed in the newspaper is fiction and is presented to the pubhc as such, the same rights accrue to the author or proprietor as in the case of a work pubhshed in a magazine. ^- Section 6. — "Where the motion picture is based upon a work in the public domain. Whenever possible, motion picture producers of course make use of such works as are in the pubhc domain. Care must be taken that in making use of such works, no use is made of other works based upon those in the public domain. It frequently occurs that in making adaptations of such public literary property, the ingenuity and orig- inality of the adaptor has combined to create a new work. ^^^lere the work is a novel or short story the adaptor may make a dramatization thereof; he may novelize a dramatic composition; he may rearrange the work and in so doing use originality; he may condense such work. Those portions of such new work which are due to the "Danes V. Boiccs (101;}), 200 was a translation from a well- Fcd. (D. C.) .W; aff'd 210 Fed. known foroi^n writer, held that (C. C. A.) 178. such pretense vitiated the copy- Wright V. Tullis (EnR.) , 1 C. B. riRht. 87;i. Where a putjhshcr pre- '^ Section 3. tended that a copyrighted work WHERE PICTURE IS PRODUCED IN SERIAL FORM 2.') originality, ingonuity and literary effort of the adajjtor will be fully i)rutected. The same api)lies to translations made of foreign works in the public domain. The translator is entitled to pro- tect his translation as against everyone. No one may use his translation, although anyone may make his own independent translation of the original work and make whatever use of his own translation and the original work he sees fit.^' Section 7. — Where the motion picture is produced in serial form. A recent development of the motion i)icture industry is the production of films in which the story is told in serial form, one or two reels being shown at a time. Simultaneously with the exhibition of the film the story of the picture is published in newspapers in instalhnents. The right to publish the story in the newspapers does not necessarily belong to the film producer. It belongs to the o\Mier of the publication rights in the drama, novel, " Stevemon v. Fox (1915), 22G motion picture play was prepared Fed. {D.C.)0'M] Shook X. Rankin from and is an appropriation of (1875), Fed. Ca.s. (C. C.) No. the plaintiff's Fechtcr version and 12804; O'Neill v. General Film Co. infringes upon i)laintiff's common (1915), 152 N. Y. Supp. 599; law property riglit therein. Dc^ modified and aff'd in 171 A. D. fendant claims that the motion (X. Y.) 854; 157 N. Y. Supp. picture play was produced by 1028; but not modified on qucs- resort to original .sources, alleged tion of infrinffeinent. The de- to he open to all . . . and that fendant was leasing out a photo in .so far as there is any similarity play entitled "Count of Monte between the motion picture play Cristo." " It is claimed that such and the Fechtcr version, it is 26 THE LAW OF MOTION PICTURES story or scenario from which the film was reproduced.^* The printing of the work whether in whole at one time or in parts at different times as in a serial story, con- stitutes merely a reproduction of the work in copies for sale within the meaning of the Copyright Act. It fre- quently happens that the film producer has merely the right to reproduce the work in the form of a motion picture, the pubHcation rights having been retained by the author or having been granted to some third party. The expression ''serial rights" has acquired a secondary meaning in the pubhshing and motion picture business. Where one sells the "serial rights" the courts will con- strue the sale as a grant of ''all publishing rights, includ- ing magazine and newspaper pubhshing rights, and excepting only book, dram.atic and moving picture scenario rights." Ey book rights the court undoubtedly means the right to novehze.^^ Section 8. — ^Where the relationship 13 tliat of employer and employe. It frequently becomes necessary to decide whether the lawful and proper in that the See also Section 159. similar incidents and characters »' New Fiction Pub. Co. v. Star are found in the novel and earlier Co. (1915), 220 Fed. (D. C.) 994. versions [that is the works in the ^'' New Fiction Pub. Co. v. Star public domain]." The court then Co. (1915), 220 Fed. (D. C.) finds that the defendant has in- 994. fringed tlic plaintiff's work. See also: Heineman v. Smart See also: Byrne v. Statist Co. Set (Eng.) (1909), Times, July 15. (EnR.) (1914), 1 K. B. 622, and Defines "serial rights," "maga- Wyattw.Burnard {Eng.), 3 Y. and zine rights" and "newspaper B. 77. syndicate rights." RELATIONSHIP OF EMPLOYER AND EMPLOYE 27 relationship existing between an author and a motion picture j^roducer is that of independent contractors or that of master and servant. If the relationship is one of independent contractors then the author retains all those rights in his work which have not been expressly or by necessary implication, from the circumstances of the case, granted to the motion picture producer. If the relationship is one of master and ser\'ant there is a presumption in law that the parties bargained — one to give up the results of his mental labor in exchange for a stipend paid by the other; and unless the servant expressly reserves unto himself some rights in the work, the master will be deemed the sole proprietor thereof and entitled to all the benefits flowing out of such owner- ship.^^ In such case no formal assignment of all rights in the work is necessary.^^ ^^ Colliery Engineer Co.w. United Fed. (C. C.) 892; Press Puh. Corresp. Schools Co. (1899), 94 Co. v. Monroe (1896), 73 Fed. Fed. (C. C.) 152; Carte v. (C. C. A.) 196; Chamberlayne v. Evans (1886), 27 Fed. (C. C.) Am. Law Book Co. (1908), 163 861; Schutnacher v. Schweneke Fed. (C. C.) 858; Am. Law (1885), 25 Fed. (C. C.) 466; Book Co. v. Chamberlayne (1908), Little V. Gould (1852), Fed. Cas. 105 Fed. (C. C. A.) 313; Peters v. No.S395;2Blatchf..362;LouTe/jrc Borst (1889), 9 N. Y. Supp. 789; V. Dana (1869), Fed. Cas. No. reversed in 142 X. Y. 62; 36 X. E. 8136; Solomon v. United Slates 814; Heine v.' Applcton (1857), (1890), 137 U. S. 342; 11 Sup. Ct. Fed. Cas. Xo. 6324 (C. C.) 88; Gill V. United States (1896), ^' Lawrenec v. Ajlalo (Eng.) 160 U. S. 426; 16 Sup. Ct. 322; (1902), 20 T. L. R. 42; 1 Ch. 264; Bleistein v. Donaldson Lith. Co. 85L. T. 605. Whore the publisher (1903) , 188 U. 8. 239; 23 Sup. Ct. employed and paid one to write an 29S;Dielmany. White {1900), 102 article as part of a work which 28 THE LAW OF MOTION PICTURES Although the rule of law is clear, great difficulty has confronted the courts in arriving at the true relation the publisher was producing at his own risk and expense, the natural inference of fact — no agreement in writing or express words being necessary to the assignment of copyright — was in the absence of evidence to the contrary that the publisher ac- quired copyright in such arti- cles. Sweet V. Benning (Eng.) (1855), 16 C. B. 459; 24 L. J. C. P. 175; 1 Jur. (N. S.) 543; 3 W. B. 519. Where the owner of a periodical contracted with one to write an article on the terms that the copyright should be the property of such proprietor, such terms were not required to be expressed but might be implied in fact. Hattoji V. Kean (Eng.) (1859), 7 C. B. (N. S.) 268; 29 L. J. C. P. 20; 6 Jur. (N. S.) 226; 1 L. T. 10; 8 W. R. Where a manager of a theatre, having designed to bring out an old play, with new scenery, dresses and musical ac- companiments, hired A to com- pose the requisite music, who did so, and A was paid for his work, the sole right to the representa- tion or performance of such musical compositions, as part of the whole, became thereby vested in the former, wilhout assignment or the consent in writing of A , the terms of the contract between them being, that the compositions should become part of the entire dramatic piece, and that the manager should have the sole Uberty of representing and per- forming the compositions with the dramatic piece. See also: Bijrne v. Statist Co. (Eng.) (1914), 1 K. B. 622; Walter v. Howe (Eng.) (1881), 50 L. J. Ch. 621; 29 W. R. 776; 44 L. T. 727; Sweet v. Evans (Eng.) (1893), 1 Ch. 218; 62 L. J. Ch. 404. Dennison v. Ashdown (Eng.) (1897), 13 T. L. R. 226. Held that an assignment of the copy- right would be presumed from the conduct of the parties in dealing with each other for a long time, even though no actual as- signment could be proved. Ward Lock & Co. v. Long (Eng.) (1906), L. R. 2 Ch. 550; 75 Law Journal, Ch. 732; 95 Law Times, 345; 22 T. L. R. 798. An agreement whereby the author, in consideration of a sum of money, undertook to compose a book for the publisher, was a suf- ficient assignment of the copy- RELATIONSHIP OF EMPLOYER AND EMPLOYE 29 existing between the parties. That has been specially the case where the person was engaged to perform serv- ices other than that of writing and he has merely as an incident to his employment composed literary- works. In one instance where the contract provided that the plaintiff should write a play to be produced at defendant's theatre and plaintiff and his wife were to act therein, and the profits to be divided equally between the parties, it was held that the parties were independent contractors and as there had been no express grant to the defendant the play belonged absolutely to the plaintiff. ^^ right, and was, as such, enforcible by the publisher. See also Section 62 of the Copyright Act of 1909. But see in this connection Hereford (Bishop) v. Griffin (Eng.) (1848), 16 Sim. 190; 17 L. J. Ch. 210; 12 Jur. 255. Where one was employed to write an article for an encyclopipdia, the owner of that encyclopaedia might not publish the article in any otlior form without the author's con- sent, unless the article was written under the express agreement that copyright in it should vest in the owner of the encyclopa;dia for all purposes. And see: London University Press V. University Tutorial Press (Eng.) (1916) , 2 Ch. 601 ; 115 L. T. 301; 32 T. L. R. 698. Where examiners getting up a set of examination papers were held not to be "employes," and entitled to copyright therein. '^Boucicault v. Fox (1862), 5 Blatchf. 87. Plaintiff who was an actor and author contracted with defendant to write a play to be produced at defendant's theatre and in which plaintiff was to act. He acted in it for a week, then withdrew, although the play was continued for some weeks more. Plaintiff took out copyright of the play in his own name. A few days later he at- tempted to enjoin defendant from continuing to produce the play. The court said: "That agree- ment was that he should wTite this play and, perhaps some other plays, and that he should contribute his and his wife's services at the Winter Garden 30 THE LAW OF MOTION PICTURES In another case where the contract provided that one who was engaged at a specified compensation should, Theatre, as long as the plays would run there, and receive half the profits, as a compensation. This cannot be construed into a contract conferring upon Stuart, or anyone else, the legal or equi- table title to this drama. The title to literary property is in the author whose intellect has given birth to the thoughts and wrought them into a composition, unless he has transferred that title, by contract, to another. In the present case no such contract is proved. The most that could possibly be said, in regard to the right of Stewart, or his trustee, in the play, is, that the arrange- ment entitled them to have it performed at the Winter Garden as long as it would run. There is not the slightest foundation upon which they, or either of them, can rest a claim to the literary property in the manuscript. That property was in the plaintiff, subject, at most, to a license or privilege in favor of Stewart & Fields, to have the piece per- formed at the Winter Garden. Whether the plaintiff was guilty of a breach of that part of his agreement which l)oun{l him to bestow his own and his wife's services, we need not inquire here. Such a breach if proved, would not vest the proprietors of the theatre with the title to 'The Octoroon.' A. man's intellectual productions are "peculiarly his own, and although they may have been brought forth by the author while in the general employment of another, yet he will not be deemed to have parted with his right and transferred it to his employer, unless a valid agreement to that effect is adduced." In Roberts v. Myers (1860), 20 Fed. Gas. No. 11,906 (C. C.), it was held that where an author had contracted with the proprie- tor of a theatre to write a play to be perfor/ned at the latter's theatre, the author was the owner of the copyright. "By this agreement Stewart (proprietor) acquired no right or interest in the play to be written, except the privilege of having it performed at his theatre. All other rights were retained by the author." In Eaton v. Lake (Eng.) (1888), 59 L. T. 100; 57 L. J. ((J. B.) 227, a music conductor, while in the employ of defendant for a term of years, had composed special music for tlie Christmas holidays. RELATIONSHIP OF EMPLOYER AXD EMPLOYE 31 among other things, compile and prepare instruction and question papers, it was held that the literary works of representation can become vested ab initio in an employer other than tlie person who has actually wliich was performed. The dc- ferulant gave plaintfT a week's notice to quit, and then took with him the score of the music and subseciuently gave performances of the same. Held, lial)le, as the music was the iiulcpcndcnt com- position of the plaintiff and be- longed to him. See also: Shepherd v. Conquest (Eng.) (185G), 17 C. B. 427; 25 L. J. C. P. 127; 2 Jur. N. S. 236; 4 W. R. 283. In this case an author was en- gaged by the owner of a theatre to write a dramatic composition and he received therefor a speci- fied weekly salary and travelling expenses. The action was brought by the proprietor of the theatre for damages for infringement of the play. "The question is whether the plaintiffs by the transaction be- tween them and Courtney (the writer) became entitled to the sole right of representation of this piece in London, so as to be able to maintain the action. We do not think it necessary in the present case to express an>' opinion whether under any cir- cumstances, the copyright in a literary work or the right of composed or adapted the literary work. It is enough to say in the present case that no such effect can be produced where the em- ployer merely suggests the subject and has no .share in the design or execution of the work, the whole of which, so far as anj' character of originality belongs to it, flows from the mind of the person employed. It appears to us an abuse of terms to .say, that in such a case, the employer is the author of a work to which his mind has not contributed an idea, and it is upon the author in the first instance that the right is conferred by the statute which creates it. We cannot bring' our minds to any other conclusion than that Courtnej-, the person who actually made the adapta- tion, though at the suggestion of the plaintiffs, acquired for himself, as tiie author of the adaptation, and, so far as that adaptation gives any new charac- ter to the work, the statutory riglit of representing it; and that inasmuch as the plaintiffs have no assignment in writing of that 32 THE LAW OF MOTION PICTURES the writer belonged absolutely to the employer, the eon- tract of employment being silent in whom the hterary property was to vest.^^ Where an author is engaged by a motion picture pro- ducer at a weekly, monthly, or yearly salary and the author agrees to furnish literary work as required by the producer, the relationship of master and servant is created, and the literary property belongs absolutely to the pro- ducer unless by express contract the parties thereto have agreed to the contrary. •^^ Even where the author receives in addition to the fixed compensation a share of the profits the rule is the same.'*^ The same is true as well right, they cannot sue for an infringement of it." '" Colliery Engineer Co. v. United Correspondence Schools Co. (1899), 94 Fed. (C. C.) 152. "It seems equally clear that under his contract, which made it Ewald's duty while a salaried emploj'^e of complainant, inter alia, to compile, prepare and revise the instruction and ques- tion papers, the literary product of such work became the property of the complainant, which it was entitled to copyright, and which, when copyrighted lOwald would have no more right than any stranger to copy or reproduce." See also: Schumacher v. Schwencke (1885), 25 Fed. (C. C.) 400; Frowde v. Parish (Can.) (1890), 27 Ont. 526; Nisbet v. Golf Agency (Eng.) (1907), 23 T. L. R. 370; Chantrey, Chantrey & Co. v. Dey (Eng.) (1912), 28 T. L. R. 499. ^° Bleistein v. Donaldson Liih. Co. (1903), 188 U. S. 239; 23 Sup. Ct. 298. Holmes, J.: "There was evidence warrant- ing the inference that the designs belonged to the plaintiffs, they having been produced by persons employed and paid l)y the plain- tiffs in their establishment to make those very things. Gill v. United States (1896), 160 U. S. 426; 16 Sup. Ct. 322; Colliery Engineer Co. v. United Corresp. Schools Co. (1899), 94 Fed. (C. C.) 152; Carle v. Evans (1880), 27 Fed. (C. C.) 801." '' Mallory v. Mnckaye (1898), 86 Fed. (C. C.) 122. RELATIONSHIP OF EMPLOYER AND EMPLOYE 33 when the author's compensation is based not upon time, but upon the (luantity of the work i)roduced, as, for instance, where he is paid a specified amount per I)ap;e.'- r ^^ Where the relationship is one of master and servant, and the author has not expressly reserved any rights, all the literary products belong to the producer as soon as they coq;ie into existence. If the writer should surrepti- tiously sell the work to some third party the producer is not deprived of such work, but may, on the contrary make use of the same and treat it as his own property in every respect. ^^ «Co.c V. Cojc (Eng.) (1853), 1 Kq. Hop. 94; 11 Ilaiv, 118. « T. H. Harms v. Slcni (1915), 222 Fed. (D. C.) 581; aff'd 231 Fed. (C. C. A.) 645. Defendants agreed with one Romljcrg, a com- poser, by which he vested in thcin the exclusive pubUsliing rights to his music for a term of years, and they agreed to do certain things for him. Subsequently he re- pudiated his contract, and plaintiffs claiming title to a song "Oh, Those Days," composed by Romberg subsequent to his agreement with defendants, sought to enjoin defendants from pul)lishing it. Judge Learned Hand held that the contract Ix'tween Rom- berg and defendants, while not enforcible in equity, was valid at law, and that since defendants could under that contract obtain copyright of the song, even though the song was not in existence at the time of the making of the contract, the agreement operated as an execu- tory contract to assign the copy- right; that plaintiffs having taken with notice of the agreement were not entitled to injunction. Ward Lock & Co. v. Long (Eng.) (1906), 75 L. J. Ch. 732; 2 Ch. 550; 95 L. T. 345; 22 T. L. R. 798. It was here hold that an author could assign the copy- right of a book not yet in existence and such an a.ssignmcnt might be in the form of an agreement to assign. 34 THE LAW OF MOTION PICTURES But a distinction must be carefully drawn between works created as an express part of the employment or as an incident to it and compositions made from informa- tion and knowledge acquired in the course of employment. In the former case the work belongs to the master, as has akeady been stated; but in the latter, it has been held that such literary property belongs to the author. ^^^ After leaving the employ of the producer he may develop the ideas which he has conceived during his employment. He may even go to the same original sources of informa- tion, and may make use in developing his work of what- ever peculiar experience he may have acquired because of his former employment. '^'^ ** Peters v. Borst (1889) , 9 N. Y. Supp. 7S9; reversed in U2 N. Y. 62; 36 N. E. 814, upon another ground. The fact that one while in the employ of another composes a work from information and knowl- edge acquired in the course of his employment docs not entitle the employer to the literary property unless there is an express agree- ment to that effect. In Colliery Engineer Co. v. United Corresp. Schools Co. (1899) , 94 Fed. (C. C.) 152, it was said: "Besides, it is thouf^ht that, although Ewald was not at lil)- crty to reproduce sucli of his work as had heen copyrighted by the employers f(jr whom it was prepared, even by availing of his recollection of the contents of the copyrighted pamphlets, he was not debarred, after his contract terminated, from mak- ing a new compilation, nor from using tlie same original sources of information, nor from availing of such information as to the needs of students and the best methods of getting in mental touch with them as he may have acquired while superintending complainant's school." ■'^'Colliery Engineer Co. v. United Corresp. Schools (1899), 94 Fed. (C. C.) 152. See part of opinion quoted on this page under footnote 44. WHERE MATERIAL WRITTEN' BY MORE THAN ONE PERSON 35 Section 9. — Where the motion picture material has been written by more than one person. Motion picture producers have frequently found them- selves involved in disputes because they have purchased from an autlior the motion picture rights to a play or other work believing, in good faith, that the author was the sole owner of such rights, when in fact two or three men had collaborated in its writing. Those, who have not granted rights, come in and claim their share of the profits or proceeds, or seek an injunction upon the ground that the right granted by their co-author will destroy their interest in the common work. The motion picture producer is bound to pay all the royalties to the party with whom he has contracted. If he ignores the rights of the other collaborators, they thi'eaten to enjoin the picture or sue for damages. If he recognizes their rights the person with whom he has con- tracted threatens to bring an action for breach of con- tract. Hence, to properly safeguard his own interest, he must fu'st inquire whether or not those claiming to be collaborators of the party with whom he contracted are such in fact. The question as to w'hat constitutes co-authorship has been constantly before the courts of this country and England. The test as laid down by Copinger contains all the elements which stamp a work as the product of co-authorship. " If there be a joint co-operation in carry- ing out the same design, it is not essential that the execu- tion of the design shall be equally divided. Having agreed to a general design and structure, they may divide their parts and work separately. The pith of the joint author- 36 THE LAW OF MOTION PICTURES ship consists of the co-operation in a common design, and whether this co-operation takes place subsequently to the formation of the design by the one, and is varied in conformity with the suggestions or views of the other, it has equally the effect of creating a joint authorship as if the original design had been their joint conception.""® *^ Copinger's Law of Copyright (4th Edition), pages 109, 110. A leading EngUsh case decided in 1871, Levy v. Ruthj, L. R. 6 C. P. 523, gives a number of tests which may be apphed with practical results in determining this question at page 529 : "If two persons undertake jointly to write a play, agreeing on the general outline and design and sharing the labor of working it out, each would bo contribut- ing to the whole production and they might be said to be joint authors of it, but to constitute a joint authorship there must be a common design." And again at page 530: "But I take it that if two per- sons agree to write a piece, there being an original joint design and the co-operation of the two in carrying out that joint design, there can be no didiculty in saying they are joint authors of the work though one may do a larger share than the other." This case has been cited with approval and followed in the state and federal courts of this country. The latest decision defining what constitutes co-authorship is Maurel v. Smith (1915), 220 Fed. (D. C.) 195. It was held that the plaintiff who wrote the scenario, the de- fendant Harry B. Smith who composed the libretto and the defendant Robert B. Smith who composed the lyrics of an operetta were co-authors. Tree v. Boivkett (Eng.) (1896), 77 L. T. 77. It was held in this case that the adaptor of a play who introduced into his version material alteration was an "au- thor of a dramatic piece" within the dramatic Copyright Act of 1833. For cases where a co-worker was held not to be a co-author see: Peters v. Bnrfgitimate ways for their individual profit. . . . La- lance & Grosjean Mfg. Co. v. Nafl Enameling & Stamping Co. (1901), 108 Fed. (C. C.) 77, follows Blacklcdge v. ireiV. Herbert v. FieUs (1915), 152 N. Y. Supp. 487. Plaintiff sought to enjoin the production in mo- tion pictures of a play entitled "Old Dutch." The libretto had been written by Smith, the lyrics by Ilobart and the music by Herbert. The defendants Smith and Fields licensed a motion pic- ture reproduction of the libretto, Herbert's consent not having been secured. Held that consent of Herbert was unnecessary. See also: De Wilt v. Elmira Nobles Mfg. Co. (1876), 66 N. Y. 459; Klein v. Beach (1910), 232 Fed. (D. C.) 240; aff'd 239 Fed. (C. C. A.) 108; Dunham v. The Indianapolis h\ R. Co. (1876), 7 IJissell, 223. But see: Powell v. Head (Eng.) (1879), 48 L. J. Ch. 731; 12 Ch. D. 686; 41 L. T. 70. The part owner of a dramatic entertainment was here held to be unable to grant a license for its representation with- out the consent of all the other owners. Accordingly where the registered owner of an undivided part of the copyright of an opera alone granted a license for its representation, in an action by the other owners to recover a penalty under 3 & 4 Will. 4, c. 15, s. 2: Held, that having regard to that act and the act 5 & 6 Vict, c. 45, the license was illegally granted, and that the defendant was liable to pay to the plain- tiffs one-half of the penalty fixed by the statute for each represen- tation. *"> Nillson V. Laurence (1912), 148 (N. Y.) A. D. 678; 133 N. Y. Supp. 293; Herbert v. Fields (1915), 152 N. Y. Supp. 487. 40 THE LAW OF MOTION PICTURES This is subject to the further hmitation that such grant does not injure or destroy the mterest of the co- owner or co-owners in the common property. ^° Where the motion picture reproduction is of the same high stand- ing and quahty as the work itself, it will not ordinarily be regarded as injurious to or destructive of the original work, nor will the granting of such rights amount to an impairment of the co-tenant's interest in the common property. •■''^ Where, however, a co-owner permits the making of an insignificant reproduction, with a poor cast, of a high- class drama or novel, equity will, in such cases, intervene ^^Osborn v. Schenck (1880), 83 N. Y. 200. In discussing the question whether an owner in common of a chattel has a remedy against the other co-owner upon a destruction by such other co- owner of the common property, Finch, J., said: "If that posses- sion develops into a destruction of the property or the interest of the co-tenant, or into such a hostile appropriation of it as excludes the possibility of bene- ficial enjoyment by him or ends in a sale of the whole property which ignores and denies any other right, then a conversion is established and trover may be maintained against the wrong- doer." The court then quotes in support of this proposition: White V. (hborn (18:J9), 21 Wend. (N. Y.) 72; Tyler v. Taylor (1850), 8 Barb. (N. Y.) 585; Van Doren v. Baity (1877), 11 Hun (N. Y.), 239; Delaney v. Root, 99 Mass. 547; Wheeler v. Wheeler (1851), 33 Me. 347; Dyckman v. Valiente (1870),42N. Y. 549. '^Herbert v. Fields (1915), 152 N. Y. Supp. 487. "Plaintiff urges that the production of the moving pictures to large crowds at low prices of admission 'de- stroys ' the work. While the ques- tion whether the moving picture production detracts from or adds to its value as a musical comedy may be debatable, it seems per- fectly clear that any analogy sought to be derived from the total physical destruction of an article owned in common is utterly inapplicable." WHERE MATERIAL WRITTEN BY MORE THAN ONE PERSON 41 on behalf of the co-tenants and enjoin the reproduction of the common work.'- One of two or more co-authors may sell or assign his own share or right in the common work.^' With respect to the co-authors themselves, the law has not l)een dofmitoly settled whether one must account to the other for his share of the profits. The rule seems to be that each may retain whatever moneys he may have secured from the exploitation of the motion picture rights of the work without accounting for any part thereof to his co-authors,-'' unless by contract the co-authors have agreed to the contrary. "//er/ie v. Liebler (1902), 73 (N. Y.) A. D. 194; Osborne v. SchcJick (1880), 83 N. Y. 200. •-^May V. Chaffee (1871), 2 Dillon C. C. 385. '* Carter v. Bailey (1874), 64 Me. 458. "In the absence of any contract modifying their relations, copyright i)r()prietors are simply owners in common . . . each owning a distinct but undivided part which or any part of which alone he can sell, as in the case of personal chat- tels." "The statute confers upon all the owners full power, without exacting any obligation in return to jirint, publish and sell. . . . Each can exercise his own right alone without using, or receiving any aid or benefit whatever from the title or property of the other. But if none be allowed to enjoy his legal interest without the con.scnt of all, then one, by with- holding his consent, might prac- tically destroy the value of the whole use. And a use only upon condition of an accounting for profits, would compel a disuse, or a risk of skill, capital and time with no right to call for a sharing of possible losses. When one owner by exercising a right ex- pressly conferred upon him, in nowise uses or molests the right, title, possession or estate of his co-owners, or hinders them from a full enjoyment or sale and trans- f(>r of their whole property, we fail to perceive any {principle of equity whicli would require liiin to account therefor. If owners 42 THE LAW OF MOTION PICTURES This is of great importance to the motion picture pro- ducer who has secured a Ucense from only one of the co- authors. In such case, assuming that the co-authors have some agreement between themselves respecting the division of moneys secured from the exploitation of the work, the remedy of one co-author is against the other; and while he may compel the other to account, he may not compel the licensee to account to him. In other words, the motion picture producer is accountable only of such property would have the result otherwise, they must bring it about by contract." If he takes "more than his share of the rents and income, without the consent of his co-owners," and refuses "in a reasonable time after demand, to pay such co- tenants their share thereof . . . he will be liable to an action of special assumpsit." Drake v. Hall (1911), 220 Fed. (C. C. A.) 905. Letters patent were issued to both par- tics to the suit as joint patentees. "Under such grant the rule is elementary that each of these patentees was vested with an undivided half interest therein, creating the relation between them of cotcnants for all benefits of the ci'^nt, so that each became entitled to use thereof without accountability to the other co- tenant. No relation of copartner- ship is involved in such owner- ship. ..." To the same effect, Central Brass v. Sluber (1915), 220 Fed. (C. C. A.) 909; Puscy v. Miller (1894), 61 Fed. (C. C.) 401; Cliim v. Breiver (1855), 2 Curtis C. C. 506; Nillson v. Lawrence (1912), 148 (N. Y.) A. D. 678; 133 N. Y. Supp. 293; Blackledge v. Weir (1901), 108 Fed. (C. C. A.) 71; Lala^ice & Grosjean Mfg. Co. v. Nat'l Enameling & Stamping Co. (1901), 108 Fed. (C. C.) 77. But see Klein v. Beach (1916), 232 Fed. (D. C.) 240; aff'd (1917) 239 Fed. (C. C. A.) 108. "Here both Beach and Klein became the owners of Klein's drama and each could then do with it what he pleased, with the duty of ac- counting over. . . . But in all these instances one would be obliged to account to the au- thor." WHERE MATERIAL WRITTEN RY MORE THAN ONE PERRON 43 to his licensor. •'•' Nor is the Hccnsee of one (;f tlie co- authors a proper party to an action brought })y one co- author against the other,-'"^ It has also been held that "'^Pusey V. Miller (1894), 61 Fed. (C. C.) 401. "lu Dunham V. Railroad Co., 2 Ban. & A. 327, 7 Biss. 223, Fed. Ca.s. No. 4151, it was said by Judso Drummond that, where a party owning less than the whole of the thing patented makes a grant or license uiuler the patent, it would seem tlie better rule to hold, if there is any hability at all, that he shall be answerable to the others, rather than the otlier patentees shall look to the grantee or li- censee. In Curran v. Burdsall, supra (20 Fed. 837), the court held that, if one of several joint patentees assigns to a third party, the estoppel upon the assignor must work a license to the as- signee to use the patent, and the joint owners of the patent must look to the one who assigns, for an accounting. The rule de- ducible from the authorities would seem to be that the license of one or more of several owners in common of a patent confers a right as against all, and that the remedy of the other tenants in common, if thoy have any, is by a suit for an account for what- ever may have been received by them. In other words, the licensee of a patent held by two or more co-owners is liable to his licensor only, and not to the other co-owners, for license fees or royalties, unless it is otherwise stipulated in the license." Klein V. Beach- (1916), 232 Fed. (D. C.) 240; alT'd 239 Fed. (C. C. A.) 108; Lalnnce & Gros- jean Mfg. Co. v. Nat'l Enameling and Stamping Co. (1901), 108 Fed. (C. C.) 77; BlacUedge v. Weir (1901), 108 Fed. (C. C. A.) 71; De Witt v. Elmira Xoblcs Mfg. Co. (1876), 66 X. Y. 459. ^o Dunham v. The Indianapolis R. R. Co. (1876), 7 Bissell, 223. "What is the position of paten- tees with reference to their right to use the thing patented? The patentees are tenants in common of the right. One of them has no superiority of right over the other. One of them can manu- facture and use tlie article pat- tentod without the consent of the others; that is, each has the same right, although one may own a greater share of the, thing patciitcd than the other. The 44 THE LAW OF MOTION PICTURES where one co-author sues the licensee of the other co- author, the bill of complaint is demurrable." In any action brought by a co-author against a motion picture producer for an injunction or damages or both, other than an action brought by a co-author against his licensee for breach of the contract between them, he must join as parties thereto all his co-authors. ^^ Where one grant was in this case to the three to use and vend the improved car-brake shoes, and while it is clear that one of the patentees cannot grant what does not belong to him, and if he gives a license or makes a contract for the use of the thing patented, he can only grant that which he has himself, and not the rights of the other patentees, still he can clothe his grantee or his licensee with the same right that he has himself, namely, the right to sell or use the thing patented. And it seems to mc the better rule is to hold, if there is a lia- bility at all, that where a party owning less than the whole of a thing patented, makes a grant or a license, he shall be answerable to the others, rather than that the other patentees shall look to the grantee or licensee." Ptisey V. Miller (1894), GI Fed. (C. C.) 401. " Pmey v. Miller (1894), Gl Fed. (C. C.) 401. ^^ Nillson V. Lawrence (1912), 148 (N. Y.) A. D. 678; 133 N. Y. Supp. 293. "We are also of the opinion that plaintiff's co-owner or co-owners should be made parties to the action. It is plain upon the face of the complaint that a complete determination of the controversy cannot be had in their absence." Jackson v. Moore (1904), 94 (N. Y.) A. D. 504; 87 N. Y. Supp. 1101. "As a general rule tenants-in-common of personal property must join in bringing actions whether arising ex con- tractu or ex delicto. [Hill v. Gibbs, 5 Hil. (N. Y.) 56.]" Aron- son V. Flcckenstein (1886), 28 Fed. (C. C.) 75. Lauri v. Renad (Rng.) (1892), 61 L. J. Ch. 580; (1892), 3 Ch. 402; 67 L. T. 275; 40 W. R. 679. It was here held that any one or more of tenants in common in a copyright might maintain an action against a stranger for an infringement of the entire copy- NATURE OF THE CONTRACT OF CO-AUTHORSHIP 45 co-author has granted a Hccnse and the Ucensee has breached his contract, the hcensor may maintain his action agamst his Ucensee without joining the hcensor's co-authors. One co-author may maintain an action against his co- authors for infringements of the common property.^^ Section 10. — Nature of the contract of co-authorship. Contracts between co-authors, and contracts Ijctween the manager or pubhsher and the co-authors for the crea- rif^ht. See also: Stevem v. Wildy (Eng.) (1850), 19 L. J. Ch. 190. In Tree v. Bawkett (Eng.) (1896), 77 L. T. 77, tlie question is discussed wlietlier a licensee must be made a party to an action brought against an in- fringer Ijy the co-authors. " Herring v. Gas Consumers' Assoc. (1878), 3 McCrary C. C. 20G. The question here presented was whether a joint author of a patent could infringe upon the patent owned jointly without being liable to his co-owner for the wrong done. The court held that he could not. The court sa.vs: "Can a part owner infringe the common patent and escape all liability? If he can it is ob- vious that, however small his aliquot part, he can make the enjoyment of the patent value- less to his joint owner. He has, by virtue of the joint ownership, a right to use the patent, but he has no right, more than a stranger, to infringe the same. If there is an infringement the right of recovery is in the party wronged. All the joint owners should or- dinarily be parties plaintiff, but if the wrongdoer is one who is guilty to the damage of tlie other joint owner, the other should not be left remediless. As to such infringement they are strangers. . . . Were this not so, the door would be open to the gravest frauds by one joint owner against all other joint owners. See also: Pitts v. Hall (1854), 3 Blatchf. 201, at page 208. Cescinsky v. Routlcdge (Eng.) (1916), 85 L. J. K. B. 1504; 115 L. T. 191. 46 THE LAW OF MOTION PICTURES tion and production of literary works are contracts for personal services.^" The creation of a literary work re- sembles that of a patentable invention;*'^ and since the co-owners of the copyright as of the patent are tenants in common, there is no partnership in the work, nor is there a joint venture.^- Of course, that relation may be modixled by special contract,^'' but any such contract would have to create ^^Mallonj V. Machay (1899), 92 Fed. (C. C. A.) 749; Blakely v. Soma (1900), 197 Pa. St. 305; 47 Atl. 286. See also Section 14. ^^ Henry v. Dick (1911), 224 U. S. at page 45; 32 Sup. Ct. 364; Scribner v. Slrauss (1C04), 130 Fed. (C. C.) 389. "De Witt V. Elmira Nobles Co. (1876), 5 Hun, 459; aff'd 66 N. Y. 459. "These parties are not partners in the owner- ship of this patent. Beyond doubt they are tenants in com- mon each owning the undivided half." Pitls V. Hall (1854), 3 Blatch. 201. "In the case of joint pat- entees, where no agreement of partnership exists, the relation of co-partners certainly docs not result from their connection as joint patentees; and when one joint owner of a patent transfers his uiidivid(!'' Spalding y. Rosa (1877), 71 N. Y. 40; Blakehj v. Sousa (1900), 197 Pa. St. 305; 47 Atl. 286; Sargent v. McLeod (1913), 209 N. Y. 360; 103 N. E. 164; Baxter V. Billings (1897), 83 Fed. (C C A.) 790; Wolfe v. Howes (1859), 20 N. Y. 197. <^^Blahely v. Sousa (1900), 197 Pa. St. 305; 47 Atl. 286. "What- ever Sousa may liavc done after Blakely's death he did for him- self. The term of his employ- ment ended with the death of his employer. . . ." See cases cited and excerpts in Section 14, page 67, footnote 6. '^Blakely v. Soma (1900), 197 Pa. St. 305; 47 Atl. 286. "It would hardly be contended for a moment that if Sousa had dictl and Blakely had survived, Blakcly could have been held t.) accept in lieu of Sousa's services the services of his legal represen- tatives or of anyone selected by them." Dickinson v. Callahan (1852), 19 Pa. St. 227, at 234. "It would seem absurd to say that the administrator of a physician or author, or a musician could be compelled to perforin flieir professional engagements no mat- NATURE OF THE CONTRACT OF CO-AUTHORSHIP 40 On the otlicr luuul, he is not bound to throw nwiiy the product of their joint labor, nor divest himself of the knowledge and skill acquired thereby. He may continue the work to its completion and license third parties to exploit the same. In like manner the manager or publisher who contracts with two or more co-authors is entitled to the joint product of their labors. lie is not bound to accept the work of one, but may insist on genuine collaboration; and where one co-author dies before the completion of the work, the contract is at an end.™ ter how the contract might be expressed. The idea is ludi- crous." '° Baxter v. Billings (1S97), 83 Fed. (C. C. A.) 790. This was a case where a cUent retained two attorneys to prosecute some litigation; the attorneys were partners. Before the work had progressed at all, one of the at- torneys, Yonley, died. Baxter, the survivor, was then asked to complete the work and he did so, bringing it to a successful issue. He brought an action for his services, basing the action on his original contract. Demurrer was sustained, the Circuit Court holding that: "An agreement with a lawj'cr to commence and prosecute a suit is of the same character as a contract with an author to write a book. If Ifie author dies, or abandons his work when it is half written, no sub- stitute or successor can complete the book, and recover its price, because the literary ability of the original author for the use of which the publisher con- tracted, has not been, and could not be applied to it. . . . That was a contract for the services of both Baxter and Yonley. Under that agreement their au- thority to commence and prose- cute the suit was a joint au- thority, and their duty was a joint duty. A joint authority conferred on two persons can onlj' be exercised b}' the act of both. An obligation to furnish and apply to tlic conduct of a lawsuit the learning, ability and experience of tivo particular at- torneys is not performed by fur- 50 THE LAW OF MOTION PICTURES The manager may, however, contract anew with the surviving co-author, and a Hcense so given to him is vahd.'i What remedy may be open to the estate of the deceased co-author where he dies before the completion of the work is doubtful.'^- It is well settled that each co-author may exploit the work to the fullest extent, and his right to do so should not be curtailed because of the other's death — nishing the services 0/ one of them. . . ." Sargent v. McLeod (1913), 209 X. Y. 360; 103 N. E. 164. In a similar case involving the death of an attorney the Court of Ap- peals said: "It is true that the cessation in performance was caused by his death, but it left undone that which he had agreed to do precisely as though it re- sulted from a physical or mental incapacitation at that time, or a capricious or unjustifiable abandonment of the case. . . . Not only was the perfor- mance which bound McLeod to pay the stipulated compensa- tion incomplete at the death of the intestate, hit the death ahro- galed the contract ^ See also: Morgan v. Roberts (1865), 38 III. 65; Moshier v. Kilchdl (1877), 87 111. 18; Wright v. McCampbell (1890), 75 Texas, 644; 13 S. W. 293; Hartford Fire Ins. Co. V. Wilcox (1870), 57 111. 180. 71 Yerrington v. Greene (1863) , 7 R. I. 594. "And if he would serve the administrators in wind- ing up the estate it must be under a new contract with them, and under renewed powers granted by them. ..." ■'^ Wolfe V. //otres, (1859), 20 N. Y. 197. The concurring opinion of Ch. J. Johnson ob- served " that it was material that the defendants had received ac- tual benefits from the services of the plaintiff's testator and that quite a different question would be presented by a case where the services actually ren- dered should prove valueless, as, e. g., if one shoidd be retained to cojnpose an original literary work and having faUhfidly cm- ployed himself in preparation should die without having com- pleted any work of value to llie employer." WHERE MUSIC HAS BEEN SPECIALLY COMPOSED 51 if anytliing they should become greater, since the survivor must of necessity do more labor to complete the work. Any rights which would enure to the estate of the de- ceased co-author must be determined by reservations which have been inserted in the contract of the co-authors. If there are no such reservations, his rights are prob- lematical. The contract of co-authorship is not assignable, nor is the contract with the publisher or manager. And being non-assignable, it will not pass to a trustee in bank- ruptcy.""' It is entire and indivisible, and calls for com- plete performance before any rights under it are en- forciblo."^ Section 11. — Where music has been composed specially to accompany the exhibition of the motion picture. There has been a strong tendency of late to provide ''^Griffith V, Tower Pub. Co. being purely personal. In this (Eng.) (1897) , 75 L. T. R. (N. S.) case the licensee was a corpora- 330; 1 Ch. 21; Hole v. Bradbury tion. (Eng.) (1S79), 41 L. T. II. 153; 12 '•» Mallory v. Mackaye (1889), Ch. I). SSG; Stevens v. Benning 92 Fed. (C. C. A.) 749, at 751. (Eng.) (1854), 24 L. T. R. (0. S.) "Such contracts are entire, not l'A;lK.andJ.\G9;Rea(tey.Bcnt- separable, and are governed by ley (Eng.) (1857), 30 L. T. R. the rule, applicable to all entire (0. 8.) 208; 3 K. and J. 271; contracts, that a breach by the and Bartsch v. Ilerndon, Circuit one party a.s to any material Ct. of Cook County, State of part completely discharges and Illinois, March 16, 1917, which releases the other party from held that a license to produce his obligations. It is hardly nec- a play did not pa.ss to the es.sary to cite authorities on the trustee where the licensee be- proposition that such a contract came insolvent, tlie right to it is entire." 52 THE LAW OF MOTION PICTURES music, specially composed, to accompany the exhibition of motion pictures. This has raised some very interesting questions as to the rights of the various parties associated with that kind of a motion picture. In the ''Mikado Case" '^^ it was held that where one wrote the libretto of an opera and another the music, the essence of the dramatic composition was in the Hbretto, stage-business, dialogue and vocal music rather than in the orchestral accompaniment. And since, in that case, Gilbert & Sullivan had abandoned their copyright to the exclusive dramatic representation of the opera by con- senting to the multiplication and sale of the libretto and vocal score in England, they could not enjoin the pres- entation of the opera here, the orchestration not being theirs. Following the line of reasoning in that case, it would seepi that special music composed for a motion picture, is not in itself a dramatic composition. It is incidental to the picture, just as the music of an opera is incidental to the play itself. It is an integral and inseparable part of the motion picture,^^ and must stand or fall with it. "The Mikado Case (1885), 25 the entire production, belonged Fed. (C. C.) 183. See also in this to him, and the plaintiff had no connection: Herbert v. Fields, separate property ri^ht therein 152 N. Y. Supp. 487. and could not restrain the de- '0 Ilatlon V. Kean (Eng.) (1859) , fendant from using it. 7 C. B. N. S. 268; 28 L. J. C. P. WaUcnslcin v. Herbert (Eng.) 20; 6 Jur. N. S. 226; 1 L. T. 10; (1867), 15 L. T. N. S. 364; 16 8 W. II. 7. Incidental music J^.T. N.ii. 4r)3; Herbert v. Weber, written for "Much Ado About N. Y. Law Journal, Oct. 30, 1907, Nothing" for defendant Kean Judge Seabury; MaurcZ v. *Smiaw of Copyright," 4th Edition, p. 7U3. WHETHER CONTRACT MAY BE RESCINDED 91 an outright sale had made a poor bargain, does not en- title him to rescind the contract, unless fraud has been practiced upon him.^^ And in the case of fraud he must tender back the benefits received by him before revoking the hcense or rescinding the sale.^'-* Section 31.— On the question whether the contract may be rescinded where the producer made a poor bar- gain or fraud is involved. The same rules apply to a motion picture producer. He may not rescind the contract because he had paid too much for the rights; nor may he set up as a defense in an action to recover royalties that he has been induced to enter into the contract tlirough fraud and misrepre- sentation without alleging that he has surrendered the license and the benefits received by him under the hcense. ^° ^» Hackett v. Waller (1913), 80 received by him under the con- Misc. (N. Y.) 340; 142 N. Y. tract of sale. Supp. 209. Here it was held that ^''Oulcaull v. Bonheur (1907), the court was not authorized to 120 A. D. 1G8; 104 X. Y. Supp. rescind a sale because the author 1099. A defense to an action to used poor judgment in securing a recover royalties for the use of a small amount for his work. play which alleges that the li- ^Ulnckdl V. Waller (1913), SO censee was induced to enter into Misc. (N. Y.) 340; 142 N. Y. the contract by fraud and mis- Supp. 209. Defendant Walter representation of the licensor who purchased a play from plaintiff, was not the author or owner, does rewrote it , and thereafter the play not state a defense in tlio absence was produced successfully. It was of allegations showing that the de- held that plaintiff could not have fendant rescinded the contract the sale set aside because of fraud, and offered such restoration as where he retained the beuetits would place the licensor in the 92 THE LAW OF MOTION PICTURES Section 32. — On the question whether a contract to write will be specifically enforced. Equity will not compel an author to specifically perform a contract providing for the writing of a book or play.^^ Section 33. — On the question whether the licensor may maintain an action against third parties. We have already discussed the right of a producer possessing a sole and exclusive license to enjoin his licensor as well as all other persons claiming through such licensor from violating his license.^- It has also been held that the licensor, although he has for a period granted away his rights, may maintain actions against third parties for any infringement of his work, as such an infringement affects his remainder interest in his property.''^ Section 34. — On the question whether courts grant in- junctions pendente lite more readily in actions of this nature. In conclusion, attention may be called to the fact that position in which he stood before " Fleroii v. Lackaye (1891), 14 the granting of the license. If he N. Y. Supp. 292. The owner of a elects to disaffirm, he must return dramatization who licenses a the benefits received. third party to produce such A counterclaim for royalties dramatization may in his own already paid, is demurrable when name maintain an action against it does not allege that the license one who pirates the dramatiza- was surrendered and the benefits tion. "An injury to it (the play) received by the licensee restored reaches his proprietary right, to plaintiff. notwithstanding tiie temporary *^ W I litwood y. Hardman (Eng.) license given" to a third party (1891), 2 Ch. 416. "to perform the play for a limited *'See Section 18. period." INJUNCTIONS PENDENTE LITE 93 injunctions pendente lite are granted more readily in actions brought by or against authors or persons claiming through such authors on account of breaches of contracts with respect to tlieir literary products than in oth^r actions, because the delay involved in waiting for a final decree will frequently amount to a denial of justice.'^ " Chappell V. Fields (1914) , 210 (1900) , 30 Misc. (N. Y.) 651 ; 64 Fed. (C. C. A.) 864; Comstock v. N. Y. Supp. 506, where it was Lopokoiva (1911), 190 Fed. (C. C.) held that because of a sharp con- 599; Nixon v. Doran (1909), 168 flict of facts no temporary in- Fed. (C. C.) 575. junction would be granted. But see: Kerker v, Lederer CHAPTER III THE PRODUCER The Actor Sec. 35. In general. 36. Injunction for breach of contract where services are special, unique and extraordinary. 37. Injunctions pendente lite. 38. Services to be "satisfactory." 39. Length of engagement. 40. Two weeks' notice and other customs. 41. Contracts for work on Sunday. 42. Services "actually performed." 43. Substantial performance. 44. Anticipatory breach. 45. Exposure to obscenity, ridicule, degradation, etc. 46. Renewal of contract — modification. 47. How many causes of action for breach. 48. Actor's remedy for breach. 49. Profits as a basis for damages. 50. Producer's offer of re-employment after breach. 51. Grounds for discharge. 52. Actor's breach of the contract — damages. 53. Changing motion picture. 54. Contracts with infants. 55. Inability of producer where studio closed by the authorities. 56. Questions of travel. 57. IJooking agencies. 58. Workmen's Compensation Acts. 59. Carnishmcnt. 60. Serial stories. 94 IN GENERAL 95 61. Escrow agents. 62. Where joint venture. 63. Royalties in addition to salary. 64. Law governing validity of contract. 65. Contract labor and exclusion laws. 66. Performance in unlicensed theatre. 67. Contracts for transportation — damages. 68. Power of company's officer to contract — agency. 69. Costumes. 70. I'^nticement of actor. 71. Libel of actor. Section 35. — In general. We have seen that the application of old legal principles to the evanescent forces of a new industry is not always easy of accomplishment. Thus far we have viewed this shifting adjustment from the standpoint of the outsider — from him who occasionally rubs shoulders with those in the business. We shall now discuss the outcome of the relationships of the various parties directly connected with the moti(jn picture — the film producer, the actor, the scenario "v\Titer, the director and so on. Section 36. — Injunction for breach of contract where services are special, unique and extraordinary. When an actor of special ability breaches his contract with the motion picture producer, it becomes very im- portant to know how the producer may seek redress, and avoid the irreparable damages that would follow such a breach of the contract. The rule is that where the services of the actor are special, unique and extraordinary and the damage to the 96 THE LAW OF MOTION PICTURES producer would be irreparable, the latter may restrain him from appearing elsewhere, provided his contract con- tains a negative covenant not to appear elsewhere.^ While this is in effect tantamount to decreeing specific performance of a contract for personal services, equity makes the exception to the general rule where the serv- ices of the artist are of such an unusual nature. A contract for the exclusive services of an actor or dramatist is vaHd and not in restraint of trade. ^ ^Lumley v. Wagner (Eng.), (1852), 1 DeG. M. & G. 604; Lawrence v. Dixe\j (1907), 119 A. D. (N. Y.) 295; 104 N. Y. Supp. 516; Standard Fashion Co. V. Siegel-Cooper Co. (1898), 157 N. Y. 60; 51 N. E. 408; Phila. Ball Club V. Lajoie (1902), 202 Pa. St. 210; 51 Atl. 973; Grimston V. Cunningham (Eng.) (1894), 1 Q. B. D. 125; Comstock v. Lopokowa (1911), 190 Fed. (C. C.) 599. McCaull V. Braham (1883), 16 Fed. (C. C.) 37. This case con- tains a summary of the English and early American decisions respecting the issuance of in- junctions in actions of this charac- ter. Daly V. Smith (1874), 49 How. Pr. (N. Y.) 150. This is a leading case in this country on tlie right to injunction in the case of unique and extraordinary services. 2 Morris v. Colman (Eng.) (1812), 18 Ves. 437; Tivoli, Man- chester V. Colley (Eng.) (1904), 20 T. L. R, 437; Mapleson v. Ben- tham (Eng.) (1871), 20 W. R. 176; London Music Hall v. Austin (Eng.) (1908), Times, Dec. 16; Clark Paper & Mfg. Co. v. Sten- acker (1917), 100 Misc. (N. Y.) 173. See in this connection: Ameri- can League v. Chase (1914), 86 Misc. (N. Y.) 441; 149 N. Y. Supp. 6. Bissell, J. "A court of equity insisting that 'he who comes into equity must come with clean hands,' will not lend its aid to promote an unconscionable trans- action of the character which the plaintiff is endeavoring to maintain, and strengthen by its application for this injunction. The court will not assist in en- forcing an agreement which is a I)art of a "general plan having for INJUNCTION FOR BREACH OF CONTRACT 97 In determining whether the services are special, unique and extraordinary the court will take into consideration the salary stipulated under the contract, the production, the probability of damage, and the indispensaljility of the actor. Indeed tliis last named (juahty is the acid test.' its ol)ject the maintenance of a monopoly, interference with the personal liberty of a citizen, and the control of his full right to lal)or wherever and for whom he pleases; and will not extend its aid to further the purposes- and practices of an unla^^'ful combi- nation, by restraining the de- fendant from working for any- one but the plaintiff." ' Edwards v. Cissy Fitzgerald (1895), N. Y. Law Journal, January 16. Pa.ssing on the ques- tion of replacement, the court said: "She has a charm peculiar to herself. By her grace, beauty, and artistic methods she has be- come a special attraction. The plaintiff would undoubtedly find it diflicult to procure a sul)stitutc who would be likely to produce a similar impres-siou ui)on the pui>- lic." Zicgfeld v. Norworth (1909), 134 A. D. (X. Y.) 951; 118 N. Y. Supp. 1151. On a question of injunction it was sliown that the defendant wa^^ the real star around whom the whole produc- tion of plaintiff's play centred, and that she had been heavily featured in announcements and advertisements so as to give her real prominence. Universal Talking Machine v. English (1901), 34 Misc. (N. Y.) 342; G9 X. Y. Supp. 813. "The important fact is that notwith- standing defendant's defection, plaintiff is still able to produce master records, which defendant swears and plaintiff does not deny are quite as good, if not a Httle better than those which defendant made. It does not appear, therefore, that the same services that defendant agreed to render cannot readily be ob- tained from another, and the application for an injunction upon this ground cannot prevail." See also: John~'>;Rudge-]Vhitivorth, Ltd., v. Ilouck Mfij. Co. (1914), 221 Fed. (D. C.) 678; De Koven v. Lake Shore & M. Co. (1914), 216 Fed. (D. C.) 955. INJUNCTION FOR BREACH OF CONTRACT 111 such case the answer is deemed to overcome the equities of the bill.''8 Injunctions pendente Ute are more readily granted in cases of this character, as the delay in waiting for final hearing will frequently be tantamount to a denial of justice.''^ In a recent case,'" the defendant, an actor, had con- tracted for his services. He agreed that his services "would ho to the entire satisfaction of the employer." The employer also had the right to terminate the services. Judge ^lanton decided that the contract was so unjust and inequitable that while the employer might sue at law, he could not restrain the actor for his breach. In particular, the court said: '8 Woodside v. Tonopah (1911), 184 Fed. (C. C.) 358. See also: Sampson & Murdoch v. Seaver- Radford Co. (1904), 129 Fed. (C. C.) 761; Shubeii v. Woodward (1909), 167 Fed. (C. C. A.) 47; Blounl V. Socicle (1892), .5.3 Fed. (C. C. A.) 98. ^'■' Comslock V. Lopokoioa (1911), 190 Fed. (C. C.) 599. Plaintiffs, managers, sued to enjoin defend- ants under a noj^ative covenant. Held that tiie iletendants being Russian dancers of a very high order and unusual attainments and personal characteristics, they could he restraineil. Also lield that while the con- tract provided tliat they were to appear only in first class theatres (not vaudeville) the mere fact tliat in one theatre a vaude- ville act was introduced was not a breach of the contract. "In actions by managers against theatrical artists, relief to be of any avail must generally 1)0 given in the first instance be- cause such artists are usuallj' of doubtful financial responsibility and the season for which they engage is over before tlic cause can be reached for final hearing." See also: Chappcll v. Fields (1914), 210 Fed. (C. C. A.) 864. *° Kenyan v. Wcissherg (1917), 240 Fed. (D. C.) 536. 112 THE LAW OF MOTION PICTURES "I am of the opinion that the plaintiff is not entitled to the reUef he seeks, to wit, a prehminary injunction. It confers a right upon plaintiff to bind Weissberg for a period of five years, but it gives no corresponding right to compel the plaintiff on his part to perform. The plaintiff may discharge Weissberg at any time when the manager determines that his services are not to his satis- faction. Nowhere is it expressed what would constitute satisfaction." '^^ Section 38. — Services to be " satisfactory." Contracts are often made whereby the actor agrees to render services satisfactory to the manager, or the scenario writer agrees to write in a manner satisfactory to the company, or some other work in connection with a motion picture production is to be done in a hke manner. Serv- ices so rendered may be terminated or dispensed with by the employer at any time at his own whim or caprice. He is the only one to say whether the services are satis- factory to him or not, and the court and jury may not substitute their judgment for his own.-*- *^ See on question of -procedure should be interesting and attrac- where injunctive order is disobeyed, live, involving art, taste, fancy Ziegfeld v. Norworth (1910), 140 and judgment. There is no pro- A. D. (N. Y.) 414; 125 N. Y. vision in the contract in any 8upp. 504; (1911), 148 A. D. manner limiting the publishers (X. Y.) 185; 133 N. Y. Supp. 208. in the exercise of their judgment ^= Crawford v. Mail & Express as to what is satisfactory, but if Pub. Co. (1900), 103 N. Y. 401; his services are unsatisfactory for 57N. E. 616. " He was not called any reason they are given the upon to do the work of an or- right to terminate the employ- dinary reporter. . . . The evi- ment upon a week's notice, at dent design was that the articles any time they so elect." Sec SERVICES TO BE " SAT1.S1-A( lOlCV "' 1 1 .'^> And although an attempt has been inadc in recent decisions to limit the enii)loyer to a bona fide exereise of his right and not to permit its use as a pretext merely," it is difficult to see how this may consistently be done. There are no limitations upon the word "satisfactory"; and whether the employer's dissatisfaction arises because of the employe's work, or because of the burden of ex- pense entailed upon him in i)aying his salary, or for any other one of a thousand reasons, is inuuatcrial. We can see no distinction. The courts which make a distinctiqn seem to take for granted that "unsatisfactory" is equivalent to "incom- petency" and that the employer may only become dis- satisfied with the quality of the employe's work. "Unsatisfactory" and "incompetent" are not neces- sarily correlative terms, and indeed have been squarely distinguished.^^ Why may not the employer become dissatisfied with the fact that the employe is in his em- ploy? As these contracts are usually drawn, it seems reasonable to suppose that the employer has that jirivi- lege, and while the doctrine is harsh and seemingly one- sided, the parties should be held to their contract; and the decisions in the great majority of cases hold them to it.^^ also Editorial in New York Law (1S9G), 148 N. Y. 252; 42 N. E. Mournal, Jan. 24, 1917. G77. See in tins connection: ".Im. Music Stores x. Kiisscll Spain v. Manhatlan Street Co. (1916), 232 Fed. (C. C. A.) 300; (1917), 177 A. D. (X. Y.) GIO. CiVmonv.Lanison Co. (1916), 234 *' lirand \. Godwin (1890), 8 Fed. (C. C. A.) 507; Parker v. N. Y. Supp. 339; (1890), 9 X. Y. Hyde & Bchvian Amuse. Co. Supp. 743. (1907), 53 Misc. (X. Y.) 549; 103 « Kendall v. West (1902), 106 N. Y. Supp. 7Si; Smith v. Robson 111. 221; 63 X. E. 678. Appellant 114 THE LAW OF MOTION PICTURES The courts have been at pains to point out this distinc- tion; that a contract calling for ordinary services con- taining a clause for ''satisfaction" may only be broken in the event of good faith. ^^ But that, regardless of good faith, the employer may discharge the employe for ''unsatisfactory" service where the work involves taste, fancy, personal satisfaction or judgment. ^^ But as agreed to "render satisfactory services" and appellee agreed to pay for "satisfactory services." Held that the appellant did not undertake to render services which should satisfy a court or jury, but undertook to satisfy the taste, fancy, interest and judgment of appellee. It was the appellee who was to be satis- fied, and if dissatisfied he had the right to discharge the appel- lant at any time for any reason, of which he was the sole judge. Peverly v. Poole (1887), 19 Abb. N. Cas. (N. Y.) 271, note. The ccMitract contained a clause pro- viding that the defendants could discharge the plaintiff if his ser- vices should not "in the estima- tion of the" defendants "be satisfactorily rendered." Held de- fendants could discharge plaintilT without giving any reason there- for and it could not be left to a jury to say whether the services were satisfactorily rendered. The footnote to this ca.se sum- marizes all the early decisions in New York State on this question. ^^ Kramer v. Wein (1915), 92 Misc. (N. Y.) 159; 155 N. Y. Supp. 193; Fuller v. Downing (1907), 120 A. D. (N. Y.) 36; 104 N. Y. Supp. 991; Brown v. Retsoff Mfg. Co. (1908), 127 A. D. (N. Y.) 368; 111 N. Y. Supp. 594; Gins- berg V. Friedman (1911) , 146 A. D. (N. Y.) 779; 131 N. Y. Supp. 517; Diamond v. Mendelsohn (1913), 156 A. D. (N. Y.) 636; 141 N. Y. Supp. 775; Daversa v. Davidson's Sons Co. (1915), 89 Misc. (N. Y.) 418; 151 N. Y. Supp. 872; Teichner v. Pope Mfg. Co. (1900), 125 Mich. 91; 83 N. W. 1031; Sleveiis V. Chicago Feather Co. (1913), 178 111. App. 455; Watkins V. Thurman (1906), 98 S. W. (Tex.) 904; Bridgeford v. Meagher (1911), 144 Ky. 479; 139 8. W. 750. " Saxe V. Shvhert (1908), 57 Misc. (N. Y.) 620; 108 N. Y. Supp. 683. Plaintifi", an actor, contracted with defendant for SERVICES TO BE SATISFACTOKY 115 almost any contract concerning itself with the conception, acting, directing or other preparation of a motion picture involves an element of artistic selection, it is safe to say that almost every contract which can come up for con- struction along these lines will fall w^ithin the latter rule. So that if one undertook to write a scenario for a motion picture company to be "satisfactory" to it, or to its "satisfaction," the company could not be compelled to accept the same/^^ his services whidi were to be "satisfactorily rendered" to the defendant. Said Judge Gerard: "Where a contract contains a clause that the services are to be satisfactory to tlie employer, he has the right to discharge if the services are not satisfactory to him, if the employment is of the class involving taste, fancy, interest, personal satisfaction or judgment; and if the emploj'er discharges the employe the ques- tion whetlicr or not the services of the employe are 'satisfactory is to be determined solely by the employer and not by tlie court or jury. Hut where the employ- ment is not of that class, and where the master has the power to discharge the employe if sat- isfied in good faith that he is incomiM'tcnt, there the good faith is a question of fact, which must be submitted to the jury." Defendant was sustained and phiintifT non-suited. Weaver v. Klaw (1891), 16 N. Y. Supp. 931. Where a person is engaged and agrees to render services to the satisfaction of the employer, "if his or her work is not satisfactory to the employer, and particularly when it is a matter of taste, fancy or judg- ment, he may at any time dis- charge him, without subjecting himself to further claim." Mc- Carthy, J. It is error to leave the question as to the comjx^ tency of the employe in such ca.se, to the jury. *^aienny v. Lacy (1888), 1 N. Y. Supp. 513. PlaintifT agreed to complete a play "to the satisfaction" of the defend- ant. Held that defendant was not compelled to take and pay for the play unless he was satis- fied with it. 116 THE LAW OF MOTION PICTURES The dissatisfaction can only be exercised by the person named in the contract. And where under a contract a plaintiff could be discharged for specified reasons, and the defendant was to be "the sole arbiter and judge," it was held that discharge by an employe of defendant for one of the specified reasons did not reUeve the defendant from HabiUty/^ But there is a distinction between "satisfactory" serv- ices and services "satisfactorily" performed. In the latter case the employer obviously is not to be the Judge of whether the services have been so performed, but the jury alone may pass upon it.^" Where the employer may "deem" the services not satisfactory, this gives him the absolute right to discharge. ^^ The employer incurs one penalty, however, by having a "satisfaction" clause. In the event that the employe breaches the contract, an injunction to decree specific performance will not issue, and he cannot be restrained from appearing elsewhere, no matter how unique or ex- traordinary his services. This has lately been decided by Judge Manton in a motion picture case where the con- tract in question contained a clause to the effect that the actor's services "would be to the entire satisfaction of the employer." There were other clauses in the con- tract, which taken together, indicated such want of mutuality and reciprocal obligations that the court was constrained to hold specific performance impossible. •'- « Lipshulz V. Proclor (1905), " Glyn v. Miner (1894), 6 Misc. 95 N. Y. Supp. 56G. (N. Y.) 637; 27 N. Y. Supp. 341. '"> Ilyilecher V. WilUnm.s (1892), ^^ Kenrjon v. Weisi^herg (1917), 18 N. Y. Supp. 580. 240 Fed. (D. C.) 53G. LENGTH or KNOAniCMKNT 117 This decision is of prime importance, as it is the only theatrical or motion picture case reported where a con- tract containing a "satisfaction" clause was held in- capal)le of being specifically enforced in a court of equity. The theory upon which it is decided is thoroughly sound and e(iuital)le, and we believe that it will stand as the law. Section 39. — Length of engagement. It is not easy to deternmie in every instance for how long a period the actor was engaged. The elements that enter into the calculations on this subject are the length of the season, the run of the play and the special language of the contract, which in each instance must be construed on its own merits. Wliilo, as a general proposition, the language of a contract is to be construed by the court alone, ambiguities freciuently occur which permit of the introduction of evidence to explain or amplify them. The contract is often oral, with perhaps a letter or two, to confirm it. Such letters or writings are prop- erly admissible in evidence.^'' In such event it becomes a question of fact, and by that token, a question for the jury to determine for how long a period the actor was en- gaged.''' "fio?/.' V. Midland Lyceum 12 Misc. (X. Y.) 83; 33 N. Y. Bureau (1912), 138 N. W. (Iowa) Supp. 17. See also: Loftus v. 384; Perry v. Bates (1906), 115 y?ofec?7s (Eng.) (1902), 18 T. L. R. A. D. (N. Y.) 337; 100 N. Y. 532; Wade v. Robert Arthur Supp. 881. Theatre Co. (Eng.) (1907), 24 ^* Sherwood v. Cratie (1895), T. L. R. 77. 118 THE LAW OF MOTION PICTURES A contract employing an actor for the "season" is not one for an indefinite hiring, '^^ although in such a case there must be some evidence showing how far the season extends. But where the language of the contract as to the "season" is qualified, the court will, as a rule, infer an intention to terminate sooner, and will not penalize a defendant who has been compelled to close the play before the end of the season. ^^ A contract for a "long engagement" is uncertain and indefinite." Nor will the courts enforce a contract which is made subject to another contract which is to be substituted in its place at some future time, unless a waiver of such substitution is proved.^^ And it is for the jury to say ^^ Spahn V. Winter Garden (1912), 138 N. Y. Supp. 446. *« Strakosch v. Strakosch (1890) , 11 N. Y. Supp. 251. "Gray v. Wulff (1896), 68 111. App. 376. A leader of an or- chestra sued to recover salary, and the defense was incompetence and justifiable discharge. Plain- tiff introduced a letter in whicli he had written defendant "if you can make salary SI.') weekly payable weekly, and can guaran- tee me a long engagement," to which he received a wire to come on. Held that tlic; term "long cti- gagemenl" was uncertain and in- definite, and that defendant had the right to discharge him upon giving him tiie usual and cus- tomary notice. London Music Hall v. Austin (Eng.) (1908), Times, Dec. 26th. Construing the expression "com- pletion of the engagement." ^^ Walton V. Mather (1896), 16 Misc. (N. Y.) 546; 38 N. Y. Supp. 782; aff'g 15 Misc. (N. Y.) 453. Where a memorandum is signed which reads "subject to the conditions and regulations of a contract whic^h is to be sub- stituted for this memorandum" there is no binding contract until a subsequent contract is drawn unless the; parties waive such subsequent contract and TWO wi:i:ks notich and other customs 11'.) whether or n(jt a contract whicli luid been clumged by one of the parties was, as so modified, accepted by the other party. '^^ The term "season" has not acquired in the motion picture in(histry a secondary meaning, nor is there in the industry a well-defined i)eriod of time during wliich actors arc generally engaged in posing, as there is in the theatrical profession. Section 40. — Two weeks' notice and other customs. There is frequently inserted in theatrical contracts a clause or phrase by which either side is to be relieved of the contract upon two weeks' notice. Evidence is always admissible to show the meaning of that phrase as well as the custom in the profession.^" The custom is that that the memorandum (1904), 99 A. D. (X. Y.) 225; 90 agree shall be regarded as the contract. Such waiver may be express or imphed in fact from the conduct of the parties. Terry v. Moss's Empires, Lid. (Eng.) (1915), 32 T. L. R. 92. Where a contract between a music-hall artist and manager provided that the artist could transfer the dates of her perform- ance and other dates were to be given her in lieu of the dates transferred, it was held that neither party had the absolute right to fix the dates but that both were bound to act reason- ably in the matter. " McLaughlin v. Hammer stein N. Y. Supp. 94,3. After the con- tract was signed by defendant, plaintiff upon signing the same crossed out one of its provisions. Plaintiff called the attention of the theatrical agency through which he had secured the engage- ment to the erasure and asked thorn to inform defendant of the same. Not hearing from the agency plaintiff entered upon the performance of the contract a.ssuming that the erasure wtus satisfactory. Held a question for tlie jury whether defendant con- sented to the change. <^'^Hart V. Thompson (1S99), 39 A. D. (X. Y.) t)6S; 57 X. Y. 120 THE LAW OF MOTION PICTURES where the actor is engaged for an indefinite period, either party may terminate the contract upon two weeks' notice." Supp. 334. This cause came up before the Appellate Division a second time after a trial before a jury [see 10 A. D. (N. Y.) 183 for opinion of Appellate Division upon appeal taken after first trial] In affirming the judgment dismissing the complaint the court said: "The evidence shows that there was a custom at the time in the theatrical profession where no definite contract of employment has been made, to give on the one part, and accept on the other, a notice of two weeks to terminate an employ- ment, and that in pursuance of such custom, that notice was given to the plaintiff. Haines v. Thompson (1893), 2 Misc. (N. Y.) 385; 21 N. Y. Supp. 991. Where an actress was employed under an oral contract "for thirty-five or forty weeks, perhaps a year," it was hold that no obligation was thereby created to continue the employment for a year, and hence the contract was not within the Statute of Frauds, and was not rccjuircd to be in writing. Plaintiff wa.s employed upon "two weeks' notice either side." He'd that evidence of the mean- ing of that phrase was admissible. "The attempted proof of the meaning of the phrase ' two weeks' notice either side' was not to show that there was a custom in the theatrical pro- fession whereby either of the parties could upon two weeks' notice to the other terminate any contract; but that, if defendant's version of the contract be true, a seemingly obscure part of it was understood by both con- tracting parties in a particular sense." See also: Newcomer v. Blaney (1900), 33 Misc. (N. Y.) 95; 67 N. Y. Supp. 170; Howe v. Robin- son (1895), 13 Misc. (N. Y.) 256; 34 N. Y. Supp. 85. ^^ DeCarlton v. Glaser (1916), 173 A. D. (N. Y.) 966; Briscoe v. Liu (1896), 19 Misc. (N. Y.) 5; 42 N. Y. Supp. 908; Hall v. Aronson (1891), N. Y. Law Journal, March 16; Wall v. Barley (1872), 49 N. Y. 464. Lovering v. Miller (1907), 218 Pa. St. 212; 67 Atl. 209. By the contract appellants (Migagcd plain- tiff for a "regular season." NOTICE AN'I) OTHKR rrSTOMS 21 But where the contract is for a definite term, as for a season or year, and nothing is said therein as to the two weeks' notice, evidence of such custom is inadmissible.*^ The notice terminating the contract need not be in writing, although actual notice of some kind is rorjuired/''' and such notice posted on the "Call Board" of the theatre has been held sufficient."* The object of the notice is to liquidate the damages, and in some measure protect the actor against sudden loss of employment. '''' The actor is entitled to two weeks' salary after such notice is given him,"" and "The number of weeks com- prised in a reguliir season was, however, left undefined in the writing, and evidence was, there- fore, prop)erly admitted to show the common understanding in the theatrical business what that term included, and the writing witii tliis evidence necessarily went to the jury to find the exact terms of the contract." See also: Haag v. Rogers (1911), 9 Ga. App. 650; 72 S. E. 46. ** Camp v. Baldwin-Mellville Co. (1909), 123 La. 258; 48 So. 927. An actor wa.s engaged by telegrams "for next season." Subsequently he was given two weeks' notice and discharged. Held that evidence that cither party had the right to terminate the contract in the customary two weeks' notice in the face of the telegrams was inadmissible. See also: Dearin^ v. Pearson (1894), 8 Mi.sc. (N. Y.) 269; 28 N. Y. Supp. 715, on refusal of the court to charge on the two weeks' custom. " De Gelkrt v. Poole (1888), 2 N. Y. Supp. 651. ** Clifford's Olympia Co. v. Waters (1898), 84 III. App. 664. ^'Dallas V. Murnj (1902), 37 Misc. (X. Y.) 599; 75 X. Y. Supp. 1040. ^Leslie v. Robie (1903), 84 N. Y. Supp. 289. Where the contract provides that it may be terminated by giving two weeks' notice, it makes no dif- ference when the notice is given so long as plaintiff receives .salary for two weeks after the giving of such notice. Fish£r V. Monroe (1893), 2 122 THE LAW OF MOTION PICTURES actual discharge has been held equivalent to notice in writing/^ In Fagan v. Aborn,^^ the plaintiff and his wife, vaudeville performers, contracted for four weeks' performances, with a three weeks' cancellation clause. Services were to begin December 4th, 1905. On October 31st, 1905, defendant wrote to plaintiffs cancelling the engagement. It was held that the notification by letter was a cancellation under the contract to take effect three weeks after its date, and the complaint was dismissed. In view of the fact that the motion picture business is so closely aUied to the theatrical profession, the question may arise as to whether or not such custom may be said to prevail in the motion picture business. We do not believe that such a custom obtains in the motion picture industry. A custom develops by slow growth and is the result of long usage. It concerns itself peculiarly with its own business, and after a time becomes so firmly fixed and is so well known to the parties engaged in that par- ticular business, that all contracts made by such parties are made with a view to and with reference to such custom. The growth of the motion picture industry is altogether Misc. (N. Y.) 326; 21 N. Y. " MocGregrar v. Gi'^wore (1898), Supp. 995. Where an actress 25 Misc. (N. Y.) 312; 54 N. Y. was discharged peremptorily Supp. 589; Watson v. Russell where she had been hired on two (1890), 149 N. Y. 388; 44 N. E. weeks' notice slie was entitled to IGl; De Vere v. Gilmore (1898), recover two weeks' salary. 25 Misc. (N. Y.) 306; 54 N. Y. "Sedgwick on Damages lays Supp. 587. down tlio doctrine tliat notice in '^^ Fayan v. Ahorn (1906), 50 such ca.ses was provided in order Misc. (N. Y.) GtiG; 99 N. Y. to allow for liquidated damages." Supp. 479. TWO WEEKS NOTICE AND OTHER CUSTOMS 123 too roront to admit of the dovolopmont of any custom similar to the one above mentioned. Nor can it be argued that by analogy or association with the theatrical pro- fession the custom in the latter has become the custom in the fonner. There are sufficient elements of dissimilar- ity Ijctwcen the two professions to refute that argument. In addition to that custom, there are several other customs which have gro\vn up in the theatrical profession. There is a custom that a "season" or a "regular season" begins in October and ends in May.*'^ It has also been contended that when a theatre is booked for one company it may not at matinees book another;"" that the "star" actor has the privilege of selecting parts which are conso- nant with his abilities ^^ and that he is to receive prominent ** Strafford v. Stetson (1910), 41 September, and shall continue as Pa. Sup. Ct. 560. The question as to the length of "the theatrical season of 1902 and 1903" was properly submitted to the jury. Lovering v. Miller (1907), 218 Pa. St. 212; 67 Atl. 209. In this case evidence was admissible to show a custom or general usage in the theatrical profession as to the number of weeks constitut- inj; a "regular season." Mcintosh V. Miner (1899), 37 A. D. (N. Y.) 4S:^; 55 X. Y. Sujip. 1074. Defendants engaged plain- tiff as a star for three seasons, the first season to coinmence "sometime in the month of November, and the two ensuing seasons somethue in tlie month of long as the same may be miUually agreed upon." No competent evidence of custom as to the length of the usual theatrical season having been introduced and no subsequent agreement as to the length of the seasons having been made, Held tliat tlie court could not enforce the con- tract nor ascertain damages. Montague v. Flockton (Eng.) (1873) , L. R. 16 Eq. 189. Custom that the manager may fix the lengtli of the sejuson. ^o Cotton V. Souyxes. Strong on "Dramatic and Musical Law, " 3d Kd., p. 25. "A'cWi/ V. Caldwell (1832), 4 La. 38. 124 THE LAW OF MOTION PICTURES billing; ^^ that a contract for ''year" means for a season, and that no salaries are paid while the theatre is shut; "^ that the lease of a theatre building may be cancelled on a month's notice.''' The courts have also permitted evidence to be offered tending to show a custom as to the manner of paying a manager his salary when the theatre is closed;" that no salaries are payable during rehearsals, that only half salaries are payable during Christmas hohday week, and that all salaries are payable at the end of the week7^ There is no custom, however, that a grant of a license to produce a play is necessarily a "sole and exclusive" one." " Elen V. London Music Hall (Eng.) (1906), Times, May 31, June 1. ^^ Grant v. Maddox (Eng.) (1846), 15 M. & W. 737. De- fendant refused to pay the artist for the time the theatre was closed. Evidence of a custom was admitted showing that while the theatres are shut no salaries are to be paid— that a contract for one or more years really meant for one or more seasons. See however: Mapleson v. Ben- tham (1871) (Eng.), 20 W. R. 176; London Music Hall v. Austin (Eng.) (1908), Times, Dec. 16. '" Atncrican Acad, of Music v. Birt, 26 W. N. C. (Pa.) 351. '"'Lcavilt V. Kennicott (1895), 157 111. 2.35; 41 N. E. 737. '« Mapleson v. Scars (Eng.) (1911), 105 L. T. 639. " Hart V. Cort (1913), 83 Misc. (N. Y.) 44; 144 N. Y. Supp. 627; aff'd 165 A. D. (N. Y.) 583; 151 N. Y. Supp. 4. The burden was on the defendant to establish that a well-known custom existed and that the parties contracted with the intention and expecta- tion that it should apply to their contract. Here the custom claimed was that a grant of a license to produce a play was a "sole and exclusive" one. For other cases loherc the courts held that no custom existed see: Chap-pell V. Harrison (Eng.) (1910), 103 L. T. 594. No cus- tom that piano makers will loan their pianos to theatres gratis. Lacii V. Osbaldiston (I'^ng.) (1837), 8 C. & P. 80. No cu.stom that the manager may reserve a private box. CONTRACTS FOR WORK ON SUNDAY 12o For cither party t(j avail himself of such custom in the suit, he must plead it in full, and allege that the same was well known to the parties at the time the contract was entered into; that it was a well-recognized and established custom and usage in the profession, and that both parties contracted with reference thereto.^^ At the trial expert evidence of members of the profes- sion is sufficient to prove the customs^^ Section 41. — Contracts for work on Sunday. ^^^lile Sunday, under the connnon law, was not re- garded as a dies non, we find early statutes in England Wyatt V. Phipps (Eng.) (1896), 40 Sol. Jo. 781. No custom that a tour on the road is for any number of weeks. "De Carlton v. Glaser (1916), 173 A. D. (X. Y.) 966; Hart v. Cort (1913), S3 Misc. (X. Y.) 44; 1-14 N. Y. Supp. 627; afT'd 165 A. D. (X. Y.) 583; 151 X. Y. Supp. 4; White v. Henderson (Eng.) (1885),2T. L. R. 119. Newhall V. Appkton (1889), 114 X. Y. 140; 21 X. E. 105. "Every legal contract is to l^c interpreted in accordance with tlic intention of the parties mak- ing it, and, usage wlien it is rea- sonable, uniform, well-settled, not in opposition to fixed rules of law, not in contradiction of the express terms of the contract, is deemed to form a part of the contract, and to enter into the intention of the parties, when it is so far established and so far known to the parties, that it must be supf>osed that their contract was made with reference to it. {Wales v. Baily, 49 X. Y. 464.) And evidence is always admissible to explain the mean- ing which usage has given to words or terms as used in any particular trade or business, as a means of enabling the court to declare what the language of the contract did actually express to the parties. [Wharton on Evi- tlence. Section 962; Dana v. Fielder, 12 X. Y. 40; Hinlon v. Locke, h Hil. (X. Y.) 437.]" " See cases cited in footnote 78 above. 126 THE LAW OF MOTION PICTURES prohibiting performances on that day. The question arises— is a theatrical contract for a Sunday performance vaUd and enforcible? The weight of authority seems to indicate that such a contract is void. In New York, for instance, the older line of cases established the invaUdity of such contracts without much discussion, irrespective of whether the performance contemplated on Sunday was permitted by the public authorities or not,^^ although later the courts seemed to lay more emphasis on the fact that such per- formances were within the prohibition of the Sunday statutes.^^ Finally, in the case of Strauss v. Hammer- 80 Bilordeaux v. Bencke Lilh. Co. (1889), 16 Daly (N. Y.), 78; 9 N. Y. Supp. 507; Hallen v. Thompson (1905), 48 Misc. (N. Y.) 642;96N. Y. Supp. 142. ^^ Schwab V. Muller (1916), N. Y. Law Journal, Feb. 18. "The contract between the par- tics provided that the defendant engaged five cabaret singers and musicians under the manage- ment and control of the plaintiff for a period of ten weeks to per- form at his place of business in this city. That the employment of said cabaret singers and musi- cians should be between the hours of three p. M. and six p. m. each and every afternoon and from seven v. M. to the time of closing of th(! cafe and restaurant ; that there should be at least three performers (musicians and sing- ers) every week day and on Saturdays, Sundays and holidays there should be at least five per- formers (musicians and singers). In my opinion the contract pro- vided for labor on Sundays that was not a necessity or charity. It is therefore in violation of Sec- tion 2143 of the Penal Law. It hardly can be said that such work is needful in the operation of a restaurant or cafe for the good order, health or comfort of the community. The case of Albera v. SciarcUi, 131 N. Y. Supp. 889, is not exactly in point as in that case the employe was recjuired to render his service^ upon the Sabbath day at such theatres and in such characters in wliich he might be caat accord- CONTRACTS KOH WOUFv ON SUNDAY stein, ^'- the Api)ellate Divisi(jn of New York made the nice distinction that the parties would not be presumed iii<5 to the direction of the em- ployer; but tlie principle decided in that case is in my opinion ai> plicaijle to this in that the con- tract of employment provides for Sunday performances of a charac- ter prohibited by the laws of the state and hence is void and un- enforceable. The demurrer is sustained and defendant's mo- tion for judgment thereon pranted." Albcm V. Sciardli (1911), 72 Misc. (N. Y.) 496; 131 N. Y. Supp. 889. The contract pro- vided: "It is agreed and under- stood by both i)arties that in the number of performances to be given each week, Sunday per- formances shall also be included in the week witliout extra com- pensation to the party of the second part." Held entire con- tract was void because: Contract was not severable, hence entire contract was void and unenforceable as such per- formances arc prohibited by stat- ute and as contract was silent as to place of performance, cf)urt would presume that contract was i)er- formed witiiin state where it was made. See also: Smith v. Wilcox (1802), 24 N. Y. 353; Lindcn- midler v. People (1800), 33 Barb. (X. Y.) 538. "' Strauss v. Hammer stein (1912), 152 A. D. (X. Y.) 128; 13G X. Y. Supp. 013. See also: Nelson v. A. H. Woods Prod. Co. (1913), X. Y. Law Journal, January 9. ". . . Finally the defendant claims that the contract is void on its face and no recovery can be had thereon for the reason that it provides for Sunday perform- ances by the plaintiff, contrary to the Penal Law. The provision of the 'agreement referred to is as follows: 'It is understood and agreed that in the event that tlie party of the first part shall decide to give Sunday concerts or per- formances, such concerts or performances, shall be considered part of the regular weekly series, and the party of the second part shall render services tliereat with- out e.\tra compensation.' Though a contract for theatrical per- formances to be rendered in this state on Sunday is illegal and recovery camiot be had under it {Albcra v. Sciardti, 72 Misc. 490), I am of the oi)inion that this is not such a contract. There is here no absolute provision for 128 THE LAW OF MOTION PICTURES to have intended a violation of the statutes, and that if Sunday performances were contemplated, they would be such as were permitted by the authorities. The same rule was declared in Pennsylvania.^^ This is the better rule. There has been an increasing demand on the part of the public for Sunday theatrical and motion picture entertainments, and the law-making bodies have given voice to this demand by the enactment of special statutes permitting the giving of certain kinds of performances on Sunday. How then may it be said that a contract which calls for a performance of the kind especially permitted by statute performances on Sunday. Such performances were to be entirely at the option of the defendant. The law will not presume that the defendant would exercise his option in breach of the law. If he should attempt to exercise his option he could not enforce it. This provision can be declared void without destroying the con- tract, for this provision is clearly severable. The contract is capa- ble of being legally performed, and this court will not say that it is void l)ecause of the bare possibility of an attempt to re- quire an illegal performance." *' Zenalello v. Ilammerstcin (1911), 231 Pa. 56; 70 Atl. 922. IMaintifT there bound himself "to sing in his capacity of tenor and shall sing in Italian in New York and in the United States of America the operas of his reper- tory and those which shall be indicated to him." The court held that while the contract provided for Zcnatello singing on week days and Sun- days, the presumption was that the defendant would not require liim to sing on Sunday in New York, but in places where such singing was permitted. The law would not presume that the parties would do an unlawful thing. The validity of a contract as to matters affecting its perform- ance is to be determined by the laws of the place of performance and not the place of execution. CONTRACTS FOR WORK 0\ SUNDAY 120 on Sunday, is void? To hold that it is so seeins illogical and absurd. Motion pictures arc permitted to be shown in New- York City.^^ Under the circumstances, a contract be- tween the releasing company and the exhibitor for the rental of a Sunday lilni would be a valid contract. Other- wise the ordinance above mentioned is without any effect. What would be the jnirpose of keeping it and similar statutes upon the books? If a tlmig may legally be done it may legally be contracted for.""' It is only when the contract prima facie calls for the doing of an act which would be in direct contravention to a Sunday statute, that it can be said to be an invalid contract. These distinctions, however, arc not made in other jurisdictions,"^ although the courts have gone so far as to '< Chapter 3, Article 1, Sec- provided that such above men- tion 10, of the Code of Ordinances tioned entertainments shall be so of the City of New York: "Sun- given as not to disturb the public day observance: No person shall peace or amount to a serious exhibit on the first day of the interruption of the repose and week, commonly calUxl Sunday, religious liberty of the cora- to the public, in any building . . . nuinity. , . ." the performance of any tragedy, ''■' Bergcre v. Park^^r (1914), 170 comedy, opera, ballet, farce ... S. W. (Tex.) 808. A contract or rope dancers; but nothing made through a booking agent herein contained shall be deemed for services upon Sunday only to prohibit at any such place or irhcre siich services might be laic- placeson the first day of the week, fully rendered on that day, is a commonly called Sunday, .sacred valid contract. See also: Wirth v. or other educational, vocal or Ccdhnun (1002), 64 Nebr. 316; instrumental concerts, lectures, So N. W. 78.^. addresses, recitations and singing, •* Stewart v. Thayer (1897), 16S 130 THE LAW OF MOTION PICTURES attempt to split up or sever the contract; but where they have been unable to do so, and have been constrained to hold the contract entire and indivisible, they have de- clared it invalid. ^^ The Federal courts also hold such contracts mvalid, where they are made in contravention of a state statute.^^ But such contracts must be Uberally construed with a view to their enforcibility. And where a contract was made between the manager of a music hall, and a per- former, whereby the latter agreed to work ''every even- ing" in the week, it was held that Sunday being a dies non in theatrical matters, the contract did not contemplate Sunday performances.^^ A contract providing for the posing of the actor on Mass. 519; 47 N. E. 420. Plain- tiff sued to recover for actual work performed in playing witli a band of musicians at defend- ant's resort. Some of the work was performed on Sunday. Held that the statute against Sunday violations precluded a recovery, as the entire contract was void. . *^ The Fountain Sq. Theatre v. Evans (1896), 4 Ohio Dec. 151. Plaintiff brought suit for breach of a contract to jierform at its theatre. Defendant set up as a demurrer that the dates of per- formance stipulated in the con- tract included a Sunday. The court hold that as the contract was entire, this went to the es- sence of it, and the same was void. *' La Crandall v. Ledbitter (1908), 159 Fed. (C. C. A.) 702. A contract providing for per- formances of artists on Sunday in theatres where admission fees are charged is unenforceable in the state of Texas in so far as it includes performances on Sunday under Article 199 of the Texas Penal Code. *» KcUi/ V. London Pavilion (Eng.) (1897), 77 L. T. 21.'). Ac- cordingly where the artist sang at a social club on Sunday even- ing without pay, this was held not to l)e a performance which would breach the contract. SERVICES ACTUALLY PEKFORMED 131 Sunday i.s void in its entirety. Where a contract provides for the entire services of the actor, the producer may not regard a refusal of the actor to pose on Sunday as a breach of the contract. Section 42. — Services " actually performed." Where the actor is hired for a definite term, the pro- ducer is bound to furnish him with employment. To in- sert in the contract that the actor will receive pay only "when services arc rendered" or "when he shall actually perform" does not relieve the manager of responsibility for the entire contract period. '•*° This is the later doctrine, and seems to have overruled the earlier cases which per- mitted the manager to provide an actor with work when- ever he felt inclined that way.^^ Although in these deci- ^Dixerj v. .1. //. Wood Prod. Co. (1915), 168 A. D. (X. Y.) 337; 154 X. Y. Supp. 49; aff'g 88 Misc. (X. Y.) 506; 151 N. Y. Supp. 224. Here the plaintifT wa.s engaged for a definite period, and agreed not to work for any other firm, i)crson, or corporation during tlie term of the contract. He was to be paid the sum of S6(X) a week during each and every week when his services were actually rendered. The defendant was given work for one week only. He sued for the remainiler of the contract period. The court held that the phra.>' for plaintifT and company to present themselves ready to work on the day originally agreed upon where he wiis notified before that day that his services would not be requiretl. (2) The contention that jur>' should have found for full amount or for nominal amount was in- valid. Defendant was not harmed by such finding. ^<*' Grcenwall Thcat. Circ. v. Markou'itz (1904), 97 Tex. 479; 79 S. W. 10G9. The manager of a theatre, after he is informed of his emploj'er's intention to breach the contract, cannot, where he himself has treated the contract as breached, keep it alive, but must sue on the breach. Sec also: Grnu v. McVickar (1S74), 8 Biss. 7; Fed. Cas. No. 570S. 136 THE LAW OF MOTION PICTURES Section 45. — Exposure to obscenity, ridicule, degrada- tion, etc. WTiere the actor has contracted to play in any part which may be assigned to him, he is bound by the con- tract, and must obey the instructions of the director in so far as they are reasonable and consistent with his skill and reputation as an actor. And in such a contract an actress will not be permitted to maintain the defense that she has been ordered to don an immodest costume.^" i»i Duff V. Ricssell (1892) , 14 Morrison v. Hurtig & Seaman N. Y. Supp. 134; aff'd on opinion below in 133 N. Y. 678; 31 N. E. 622. Dis Debar v. Hoeffle, N. Y. Law Journal, vol. 4, 1475. Plaintiff sued for damages in that defend- ant had published her picture representing her in the garb of Cupid. Plaintiff was an actress, and had contracted to appear in a plaj^, and assume any part assigned to her. Judge McAdam held that having contracted to appear thus, it was her duty to dress in any i)art and in any cos- tume assigned to her, and she could not complain. That it was one of the incidents of an actress's life to dress in costumes that were not always the height of modesty, and that she had no more cause for complaint than an artist's model would have because slio might be recjuircd to pose in an immodest costume. (1910), 198 N. Y. 352; 91 N. E. 842. Plaintiffs (husband and wife) were engaged to act for defendants. The plaintiffs agreed to furnish "at their own cost and expense, all necessary cos- tumes, wigs, shoes, boots, tights, stockings and gloves in and about their performances," to "pay strict regard to make-up in the dressing of characters," and to "abide by and conform to all rules and regulations now made or hereafter to be made." De- fendants requested Mrs. Mor- rison to change the costume which she was then using and in place thereof wear a "military costume." That was a costume in "tights" without skirts. Held that it was error to exclude con- versations had at the time Mrs. Morrison was requested to change costumes, for the contract con- templated future discussions be- EXPOSURE TO OBSCENITY, RIDICULE, ETC. 137 She is bound al)solutely by her contract, and the only way in which an actress can avoid the predicament of having to wear a costume repugnant to her sense of modesty, is by contracting with the manager. Unless she so contracts she is subject to discharge for which she cannot recover. '°- tween the parties upon the sub- ject of costumes and that such conversation would aid the jury in decidinn wliether tlie reguhi- tion of defendants was a reason- able one. See alio iti this connection: Baumcistcr v. Markham (1897), 101 Ky. 122; 39 S. W. 844; 41 S. W. 816. An actress while on her way to the theatre to perform was injured through negligence of defendants. Tlie lower court refused to charge the jury as follows, which was an alleged error of the court: "The court instructs the jury that if they believe from tlie evidence that a part of the business of the plain- tiff was to go upon the stage and exhibit her legs in such manner as is indecent in fact and immoral in its tendencies, then, in that event, the loss of opportunity to earn money in such employment can form no basis for recovering damages." The appellate court sustained the lower court's refusal to so charge and said in support of its position: "It may be, as testified by appellant, such per- formance retjuires the arti.st to 'show her liml)s in silk stock- ings,' but while it is tolerated by law and patronized openly and freely by the public, the court cannot arbitrarily outlaw those who earn a livelihood in that way." ^"^ Rafalo V. Eddstein el al. (1913), SO Misc. (N. Y.) 153; 140 N. Y. Supp. 107G. A part was a.ssigned to one of the plaintiffs (the wife) which she refused to play upon the ground that such part was "artistically unfit" for her. Defendants w re entitled to a.ssign such part to the wife. Defendants asked her to recon- sider her refusal. The following day the wife telephoned that she was willing to play the part but plaintiff refused to further employ her. Held that the re- {juest on the part of defendants to reconsider her refusal did not necessarily constitute a waiver of the breach of the contract, the 138 THE LAW OF MOTION PICTURES Nor may she object to portraying a lewd or immodest character, unless she has reserved that privilege to herself by contract. The theatre is an institution founded for "the imitation of virtue and the exposure of vice and folly." Of necessity somebody must play the villain, the adventuress, the harlot, just as one plays the hero and the innocent heroine. And the producer has the right to call upon any member of his troupe to play the dis- agreeable, as well as the desirable parts, subject to cer- tain limitations which will be hereafter discussed. The producer may not demand that the actor travel an unreasonable distance to perform, ^"^ or endanger his life and hmb,^°^ unless he has specifically contracted so court holding that such question should have been submitted to the jury. ■"' Gath V. Inter stale Amusement Co. (1912), 170 111. App. 614. Plaintiffs were engaged to per- form a vaudeville act for five weeks in Montgomery, Ala., Little Rock, Ark., Fort Worth, Dallas and Houston, Texas, and "ad- jacent" towns. Defendants, seek- ing a pretext to break the con- tract, wired plaintiffs to appear in Beaumont which is 300 miles away. Held that the word "ad- jacent" did no( convey any .such meaning and tiiat this was an unreasonable interpretation of the contract. ">*IIanlin v. Wallers (1893), 3 Col. App. 519; 34 Pac. 686. De- fendant, manager of a theatre in Pueblo, was also an innkeeper and boarding-house keeper. He engaged plaintiff to work in his theatre and boarded and lodged her at his house. Becoming terrified at the actions of de- fendant's wife, plaintiff was com- pelled to leave. Defendant kept her trunk and valise and plaintiff was forced to replevy them. Held that defendant having been the cause of plaintiff's tlc- parture, the fault was with him, and he would not be permitted to say that her indebtedness to him of her board was not paid. The replevy was sustained. EXrOSl'UE TO OHSCKMTV, lUDKTLK, KTC. \:vj to do and has accepted his emplojmient with that under- standing.'"^ The producer may not demand that the actor or actress do an act whicli is obscene or lowd, for that is clearly against public ])()licy and is ground for rescission of the contract. But it would be for the jury to say what con- stituted such conduct. '"" Nor may the ])r()ducer insist that the actor play a i)art inferior to that for which he was hired. Where the plaintiff was employed as a "premier second- danseuse," it was held that she was justified in refusing to dance in parlor dress with figurantes of the theatre.'"' So, too, where a dancer was engaged as a "i)reniiere dan- seuse etoile" and had been asked to dance an inferior part by the stage management.'"^ And a bass or baritone in a church choir could not be compelled to sing an in- ferior part."^ In one case, where a "star" actress was O'Connor v.. Armour Packing Co. (1!)08), 158 Fed. (C. C. A.) 241. (Jeiierally on tlie que.stion of expo.siiig the servant to dis- ease. '»»Zi//7z V. Tooveij (1890), 9 N. Y. Supp. 439. The phiintiffs (husl)and and wife) were engaged to perforin at defendant's place of anuisenient, the luisband to do the "fire 'act" and the wife, among other things, to walk on broken glass. The action was i)n)iight for wrongful discharge, defendant claiming tliat the wife failed to walk and tlance on gla.ss in the manner provided in the contract, lldd that the wife substantially performed the con- tract by walking and jumping on the glass tiiough she did not dance on it. "*y?«/flZo V. Edchtein (1913), SO Misc. (X. Y.) 153; 140 N. Y. Supp. 1076; Morrison v. Ilurlig (1910), 198 X. Y. 3.j2; 91 X. K. 842. ^°' Baron v. Placide (1852), 7 La. Ann. 229. "^^'' lioscric v. Kiralfii, 12 Phila. (Pa.) 209. ' "» Warner v. The Rector and 140 THE LAW OF MOTION PICTURES asked to play in a part assigned to her by the theatre manager, it was held that the evidence showed a custom or usage in the theatrical profession by which the "star" had the pri\^lege of selection of such parts as she might shine into good advantage. "° In the case of Violette v. Rice,^^^ the plaintiff, an actress, contracted "to render services at any theatres." It was held that evidence tending to show that the word ''serv- referred to particular kinds of services only, was ices Trustees, etc. (1882), 1 City Court (N. Y.), 419. Plaintiff was em- ployed to sing a bass or baritone part in a choir of the defendant's church. The defendant directed plaintiff to take a subordinate part which he refused. Held plaintiff could recover for breach of the contract. Briscoe v. Lilt (189G), 19 Misc. (N. Y.) 5; 42 N. Y. Supp. 90S. "The employe is only required to engage in service of a character and grade equal to that from which he was discharged, and nothing inferior in rank or de- gree." '^^ Kelly V. Caldwell (1832), 4 La. 38. For miscellaneous non-theatrical cases see: Wolf Cigar Stores x. Kramer (1908), 109 S. W. (Tex.) 990; Development Co. v. King (190H), 101 Fed. (C. C. A.) 91; Davis V. Dodge (1908), 12G A. D. (N. Y.) 469; 110 N. Y. Supp. 787; Marx V. Miller (1901), 134 Ala. 347; 32 So. 765; The Sarah, 1 Stuart Adm. Rep. (Quebec) 87; Drummond v. Atty. Gen'l (Eng.), 2 H. L. Cas. 837. ^^^ Violette v. Rice (1899), 173 Mass. 82; 53 N. E. 144. An em- ployment contract provided that plaintiff was "to render services at any theatres" and "to conform to and abide by all the rules and regulations adopted" by defend- ant "for the government of said companies." On the back of the contract were the rules of the company, one of them reading: "No person shall . . . refuse a part allotted to him or her ])y the manager" on certain penalties including the right of discharge. Held that evidence that the word ".service" referred to particular services was inadmissible. EXPOSURE TO OBSCENITY, RIDICULE, ETC. 141 inadmissible, as varying the terms of the \\Titten contract. This rule seems to be in harmony with the language of the dissenting opinion of Mr. Justice Bijur in Rafalo v. Edehtcin.'^^- But in another case, involving the dis- charge of a traveUng salesman, parol evidence was held admissible to ascertain the duties of the plaintiff.''^ And in another case it was held that it was for the jury to say what the duties of a stage manager were.^^'* On the other hand, an actress who is engaged for an inferior part or in the capacity of an understudy, may not demand that the producer permit her to perform when the principal becomes ill."^ ''^Rafalo V. Edelstein (1913), 80 Misc. (N. Y.) 153; 140 X. Y. Supp. 107G. "' Broicn v. Baldwin & Gleason (1S91), 13 X. Y. Supp. 893. Phiiiitill alleged a wTongful dis- charge. He was hired as a travel- ing salesman, and at the trial defendants offered testimony to show that it was a custom in the trade for a salesman to take out a line of samples. Said Judge Pryer: "Doubtless the learned trial judge rejected the evidence on the ground that a written contract cannot he added to or in any way altered by oral testi- mony. By the contract the re- spondent was ' to serve tvs travel- ing salesman;' but what were liis duties as such is not defined, nor does the law determine them. Parol evidence of trade usage ascertaining those duties was therefore in no sense contradic- tory of or inconsistent with the terms of the written instrument, but tended only to show the full meaning and effect of the words ' traveling salesman.'" "^A'as/t V. Krieling (1899), 56 Pac. 2G0; aff'd 123 Cal. xviii. ^^'-Neicman v. Gatli (1907), 24 (Eng.) T. L. R. 18. Plaintiff, an actress, was engaged for the run of a play to act as understudy to the principal character. Plaintiff received a weekly salar3\ She agreed not to appear at any other place of amu.sement during the term of the contract without defendant's consent. During the run of the play the principal actress left the show. Plaintiff 142 THE LAW OF MOTION PICTURES On the refusal of the actor to play the part assigned to him, the producer must give actual notice of discharge, ^^® but if he fails to do so and continues him in his employ, it becomes a question of fact for the jury whether there was condonation. ^^^ Section 46. — ^Renewal of the contract — modification. Where nothing is said by the parties, and the actor under contract with the producer, continues in the em- ployment, the law will imply a renewal of the original contract for an equal length of time up to one year, and upon the same terms. ^^^ brought action for breach of con- tract for failure of defendant to permit her to act in the principal part. Held that under the con- tract no right was conferred upon plaintiff to play the part; that the contract merely imposed the obligation on the part of plaintiff to play if called upon so to do by defendant. ^^^Slanding v. Brady (1913), 157 A. D. (N. Y.) 657; 142 N. Y. Supp. 656. Where the contract provided that plaintiff was to play such parts as were assigned to him and further that defendant could annul the contract during rehear.sals. Held that \or(lict for plaintiff .should be reinstated when although there was evi- dence that plaintiff refused to play part assigned to him, yet defendant failed to give notice of discharge to him. ^" Rafalo V. Eddstein (1913), 80 Misc. (X. Y.) 153; 140 N. Y. Supp. 1076. ^^^ Lorenz v. Bartuschck, City Court of the City of New York, unreported, judgment roll filed May 18, 1916. Plaintiff was a ballet-mistress emploj'ed by de- fendant in Berlin. Defendant contracted with Mr. Dillingham to produce his ice-ballet at the New York Hipprodrome, and plaintiff was sent over with the ballet in July, 1915, and after a rehearsal period of six weeks entered upon her duties. In November, 1915, defendant and Dillingham renewed their con- tract and extended the .same for four months, with renewal op- RENEWAL OF THE CONTRACT — MODIFICATION 143 Where the orij^iiial contract was fur a graduated scale of compensation for several years, the contract will be tions which DilhuKhiun exorcised down to July. The pluiiitilT contiiiuctl to i)orforin her duties, but after Jiuumry Hi, 1916> de- fendant refused to pay her, clainiinf!; that slie was no longer in his employ, but in the employ of Dillingham, as no express contract of renewal had been made with her by the defendant. PlaintitT went to the jury and received a verdict for .? 1,000, the full amount sued for, which was sustained by the Appellate Term without opinion. (1) Plaintiff contended that where the original term of em- ployment had expired and she was pormitt(>d to continue her duties, the contract wa.s renewed by oix?ration of law upon the same terms. [Labatt on Master & Serv- ant, 2d Ed., Section 230; Adams V. Fitzpalnck, 125 N. Y. 121; Wood V. A////CT, 78 N. Y. iMisc 377; Douglas v. Merchants' Ins. Co., 118 N. Y. 484; Huntington v. Claflin, 38 N. Y. 182; Vail v. Jirscij Co., .T2 Barb. (N. Y.) .')()!; Lichtenstein v. Fisfwr, 87 Hun (N. Y.), 397.) And the compensa- tion was presumed to be the same. (Labatt, Section 232.) Besides which there wa.s evidence to indicate that the contract had been extended by parol. {Hudson lildg. Co. V. Compagnie Gen. Transatlantique, 169 N. Y. App. Div. 600; Homer v. Guardian Mul. Life Ins. Co., 67 N. Y. 478.) (2) The contract also provided that "In ca.se of all disputes ari.s- ing under this contract both par- tics shall submit to the jurisdic- tion of the Amstgericht, Berlin Mitte or Landoricht I in Ber- lin. ..." Plaintiff's contention was that this clause did not oust the American courts of jurisdic- tion. {M cache m v. Jamestown R. R. Co., 211 N. Y. 346; Engel v. Shuhert, 166 X. Y. App. Div. 394.) (3) Evidence of the contract between defendant and Dilling- ham by the original instrument was properly admissible. {Miller V. Laarcnce, 13 X. Y. Misc. 130.) Montague v. Flockton (Eng.) (187.3), L. R. 16 Eq. 189. A con- tract which renews a contract for services for another season is binding for the same length JUS the iirst contract. De Gcllcrt v. Poole (1888), 2 N. Y. Supp. 6.-)l. For miscellaneous cases see: 114 THE LAW OF MOTION PICTURES deemed renewed for one year upon the same scale of compensation provided for in the last year of the original contract. ^^^ It often happens that after an actor finishes an en- gagement for a long term he is asked to continue it for a short period, either to complete the run of a play or to finish a picture. In such case a breach by the manage- ment will entitle the actor to sue upon the additional period as if the same were a part of the period embraced in the original contract. ^-° Whether the written contract could be modified by a verbal agreement, is a question for the jury.^-^ ment. Held that the salary for the ensuing season if the option was exercised would be that pay- able for the third year and that the contract was not void for uncertainty. 120 Wheeler v. Woods (1909) , Morris v. Briggs (1915), 179 S. W. (Mo.) 783; Curtis & Dodd v. Struthers (1915), 154 N. W. (la.) 872; Dunlon v. Derby Desk Co. (1904), 186 Mass. 35; 71 N. E. 91; Slate Board of Agriculture v. Meyers (1904), 20 Col. App. 139; 77 Pac. 372; Home Fire Ins. Co. V. Barber (1903), 67 Nebr. 644; 93 N. W. 1024. 119 Wade V. Rob't Arthur Thea- tres Co. (Eng.) (1907), 24 T. L. R. 77. Defendants engaged plain- tiff to act in the principal part of a pantomime at a salary of £130 per week for the first year, £140 for the second year and £150 for the tliird year, with the option of retaining the services of plain- tiff for the next pantomime season upon the same terms and condi- tions as set forth in the agree- 120 N. Y. Supp. 80. Where plain- tiff, an actor, had fully performed under a written contract and had been asked to perform for an- other two weeks in Chicago, and the show was disbanded during the second week, it was held that he could recover — not upon a quantum meruit, — but upon the extra two weeks' engagement. See also: Kcane v. Liebler (1907), 107 N. Y. Supp. 102. '" Rothcnbcrg v. Packard (1910), 97 Miss. 428; 52 So. 458. Plaintiff, manager of a produc- HOW MANY CAUSES OF ACTION FOU UHI:A( H M.' And a contract made by the actor with the dinctnr general of a travehng show, may be renewed l)y that same director general so as to bmd the company. '-- Section 47. How many causes of action for breach. As a general rule the actor has but one cauSc of action for damages for a breach of the contract by WTongful dis- charge.'-'' But it is necessary to distinguish between a partial breach and a total breach, ^^^lere the contract is sever- able and of such a nature that it may be breached in part and performed in part, judgment recovered in an action for the partial breach is not a bar to a subsequent action for the total breach. ^-^ tion, contracted with defendant to give performances at defend- ant's theatre, defendant agreeing to pay plaintiff 70% of gross receipts. Just before the opening of first performance phiintiff's actors and actresses refused to proceed with their acting unless they were paid salaries due them for previous performances. An agreement wa.s made between plaintiff's traveling agent and defendant whereby defendant agreed to pay artists the 70% to bo applied on account of salaries due them, which defendant did. Plaintiff sued for 70% of the gross receipts. Held that it was a (juostion for the jury whether defendant, in view of the emer- gency, could make a verbal agree- ment with plaintiff's agent not- withstanding his original written contract witli plaintiff. liobcij V. Arnold (Kng.) (1898), 14 T. L. R. 220. The meaning of the word ''re-engagement" is for the jury. See also: Arnold v. Stratton (Eng.) (1898), 14 T. L. R. 537. ^•'^ Eddy V. American Amuse- ment Co. (1913), 132 Pac. (Cal.) 83. '" Evcrson v. Powers (1882), 89 N. Y. 527; Parry v. American Opera Co. (1887), 19 Abb. X. Cas. (N. Y.) 269. "* Livingston v, Klaw el ano. (1910), 1.37 A. D. (X. Y.) G3'>: 122 N. Y. Supp. 204. Plaintiff 146 THE LAW OF MOTION PICTURES Where the employer has given notice of his intention to breach the contract, the employe who then treats the contract as breached, cannot keep it ahve, but must sue on the breach. ^-^ But there arises no cause of action, on a wrongful dis- charge, which is based upon the theory that such dis- charge was malicious and oppressive. The law will not give redress for such injury, but the action must be purely one for breach of contract and nothing more.^-^ Section 48. — Actor's remedy for breach. Where the actor is ready, able and willing to continue in his emplojnnent and the producer does not permit him was employed for a term of twenty consecutive weeks, serv- ices to coimnence December 2, 1907, at a weekly salary. De- fendants failed to provide em- plo3''ment for weeks commencing January 6, 1908, and January 20, 1908. They did provide him with employment for weeks cov- ering January 13, 1908, and January 27, 1908, respectively. Plaintiff sued for salaries due for weeks of January 6 and 20, and recovered judgment. Plaintiff now sues for total breach. Judg- ment secured l)ccause of partial breach is set up as bar to the ac- tion. Held that where there had been a partial breach, a recovery for sucii breach did not bar an action for a total breach subse- quently occurring. 1" Greenwall Tlieat. Circ. v, Markowitz (1904), 97 Tex. 479; 79 S. W. 1069. 12S Weslwater et ano. v. Rector et al. (1903), 140 Cal. 339; 73 Pac. 1055. Complaint alleged that the dismissal of the plaintiff, a vocal artist, was malicious and oppressive, and in consequence thereof plaintiff had been hu- miliated, suffered great mental agony, and had been sick in mind and body. Held that complaint was demurrable upon the ground that damage to health, reputa- tion or feeUngs arising out of dis- missal was too remote and un- certain. ACTOlt S REMEDY lOK UUEACU 147 to do so, or refuses to pay liiin for his serviecs, there is a breach of the contract by the ])roducer, and a cause of action arises in favor of the actor. The latter may then sue for the entire amount due him for the unexpired term of the contract; and upon the trial the jury may give him a verdict up to such auKJunt. Nor is the jury limited by the amount due at the time of the trial.'-" After the occurrence of the breach it is not necessary for the actor to tender his services or be prepared at all times ready to perform for the producer. ^-^ As against the plaintilT's recover}' the defendant may set up the fact that plaintiff has earned other money else- where since the discharge, and the jury must be instructed to deduct such earnings from the damages claimed; '^ and they may also speculate on the amount of earnings of the plaintiff which he may secure before the exph-ation period of the contract. Indeed, the plaintifT is in duty bound to mitigate the damages, and to use all reasonable dili- gence in seeking other cmploj'ment,''"' although where his '"Howard v. Dali/ (1S75), 61 '^^ Ba.sse« v. French (1895), 10 N. Y. 302; Sutherland v. Wyer Misc. (X. Y.) 672; 31 X. Y. (1S77), 67 iMc. 61; Dugan v. /!«- derson (1872), 36 IMd. 567. See also concurring opinion of Gay- nor, J., in Davis v. Dodge (lOOS), 126 A. I). (X. Y.) 169; 110 X. Y. Supp. 7S7. See also: Editorial in the Xow York Law Journal (jf Septeinhor 14, 1917. *^» Howard v. Dalg (IST.')), 61 X. Y. 362. Supp. 667. Defendant w:is per- mitted, after default in plead- ing, to come in upon a.sse.ssment of damages and to show that during the contract period plain- tiffs received other earnings which were to be allowed in mitigation of damages. See also: Stdherland V. Wgcr (1877), 67 Me. 64. "oPo/^ V. Daly (1S73), 4 D.aly (X. Y.), 411. PlaintifT was dis- 148 THE LAW OF MOTION PICTURES absence does not prevent the defendant from reducing the damage he may recover for the full amount. ^^^ However, if the defendant wishes to avail himself of this defense, he must plead it as a partial defense in miti- gation of damages, and the burden of estabhshing it is upon him.^^^ Where the contract period has expired before the time of trial, the actor is entitled to recover full compensation up to the time of the expiration of the contract period, less other earnings."^ Where the earnings elsewhere are greater than the com- pensation agreed to be paid under the contract sued on, the defendant is entitled by way of mitigation of damages, only to a proportionate share of the earnings calculated upon the work done under each contract. ^^^ charged before expiration of bis ^^^ Dearing v. Pearson (1894), contract. He tendered his serv- 8 Misc. (N. Y.) 269; 28 N. Y. ices and upon defendant's re- Supp. 715. fusal to furnish him with em- ^^^ Howard v. Daly (1S75), Gl ployment left for the south where N. Y. 3G2. he remained during the balance ^^^ Everson v. Powers {18S2), 89 of the contract period. It was N. Y. 527. proved by defendant that plain- ^^* Evesson v. Ziegfcld (1903), tiff made no effort to find other 22 Pa. Super. 79. Under the employment, but on the contrary contract plaiutifT was to receive "went a fishing." Held that $100 per week; performances plaintiff was obligated to use contemplated to be seven or "ordinary but active diligence" eight per week. After discharge in securing new employment to ])l!unti(T secured other employ- mitigate damages. See also: mont at $175 per week, number Howard v. Daly (1875), 61 N. Y. of performances to be given per 362; SiUherlaiid v. Wycr (1877), week being fourteen. Held that 67 Me. 64. defendant was only entitled to PROFITS AS A BASIS FOR DAMAGES 140 Section 49.— Profits as a basis for damages. The breach of a contnict to })Uiy at a th(;atrc often in- volves tlie difTieulty of laying a basis on which damages may be predicated. Generally speaking, the prospective profits of a performance are vague and speculative, and not susceptible of such computation as to admit of proof. '^^ 8/14 of S175 per week in mitiga- tion of chunti^cs. Held further tliiit plaintid might sliow expendi- tures for costumes, etc., during period of employment by de- fendant not as an item of dam- age but for the purpose of show- ing performance on lier part. Held further that a receipt in full for money actually earned did not release defendant from any and all claims for breach of con- tract as the money paid to plain- tiff upon signing the release was actually due her, hence no con- sideration for absolute release. Frohman v. Ma>^on (101.5), 89 Misc. (N. Y.) 380; VA N. Y. Supp. 938. Defendant, counterclaim- ing, sought to recover for a breach of contract of employment. He had been employed by jjlaintitT at a salary of S700 a week and 7% of the profits over S7,0()() weekly, but after the failure of the production, he contracted with another manager at S70() a week and a bonus of SI, 700. His income for the sea.son was greater than it would have been had he continued to play for the plain- tiff, although in fact he was em- ployed for 18 weeks instead of 20 weeks. Held that he was not actually damaged and could not recover. '" Bernstein v. Meech el al. (1891), 130 N. Y. 354; 29 X. E. 255. A contract was made whereby plaintiff was to give a specified number of performances at defendant's hall and receive 50% of the gross receipts from such performances. Defendant refusal to jx>rmit plaintilT to per- form. Held that although the value of the contract to plaintiff W!is in the profits, such profit.s were not susceptible of proof and could not be recovered. Culling V. Miner (1898), 30 A. D. (N. Y.) 457; 52 N. Y. Supp. 2SS. Plaintiff agreed to play her company at defendant's theatre and to receive a certain percent- age of the receipts. The jurj' 150 THE LAW OF MOTION PICTURES awarded her a substantial verdict but the Appellate Division re- versed the judgment: "There was no evidence in the case to warrant this finding. It was necessarily pure guess work. ... If the performance had been permitted to proceed, and the play had been a success as evidenced by equally large audiences on subsequent occa- sions, there would have been some reasonable basis for the finding as to the prospective profits for the rest of the week. But here there was no basis at all. There was simply a first- night audience attracted by the production of a new play." See also: New York Academy of Music V. Hacketl (1858), 2 Hilt. (N. Y.) 217; Wakeman v. Wheeler (1886), 101 N. Y. 205; 4 X. E. 264; Ellsler v. Brooks (1886), 54 Super. Ct. (N. Y.) 73; Levison v. Oes (1917), 98 Misc. (N. Y.),260; Toddv.Kcene (1896), 167 Ma.ss. 157; 45 N. E. 81. Moss V. Tompkins (1893), 69 Ilun (X. Y.), 288; 23 X. Y. Supp. 623; aff'd in 144 X. Y. 6.59; 30 X. E. 858. A contract nvas made between the parties whereby plaintifT, the lessee of a theatre, agreed to furnish dfifendant, the manager of a theatrical produc- tion, theatre and equipment for a specified period, the gross re- ceipts to be shared between the parties. Before the date fixed for the giving of the first perform- ance, defendant notified plaintiff that he would not produce the play at the plaintiff's theatre. Plaintiff was not permitted to show previous receipts of his theatre or the popularity and success of the production in the places where it had already been produced and that such receipts would have been greater during the contract period than those actually taken in by plaintiff. The court makes this signifi- cant statement : "The defendant's dramatic company was not shown to in- clude artists of such exceptional and well-known talent as to guarantee, apart from the play, audiences of reasonably certain numbers. Xor was any special attraction of the latter kind con- templated by the contract." But see in this connection: Savery v. Ingcrsoll (1887), 46 Hun (X. Y.),176. On Ihe construction of the pay' ment clause see: Ming v. Pratt (1899), 22 Mont. 262; 56 Pac. 279. Plaintiff owned an opera house; defendant was the pro- prietor of an opera coini)any. The parties contracted for a per- I'ROFFTS AS A HASIS lOIi UAMAGKS Tlio plaintifT, however, will h(! pcrniitte(l to recover the actual losses sustained by him.''""' formance, and the court in pass- ing upon the meaning of the pay- ment clause said: "The contract expressly pro- vides that dc'fciulant shall have not less tlian SboO and 85 per cent of all monies received from the sale of scats. The language is clear, unambiguous and free from any uncertainty; its obvious meaning is that defendant was to receive S850, and also 85% of the gross receipts." ^^^ American Hungarian Pub. Co. V. Miles Bros. (1910), 68 Misc. (X. Y.) 334; 123 N. Y. Supp. 879. Defendant agreed to furnish a motion picture display and suitable apparatus for the exhibition of motion pictures, advertisements and election re- turns. In an action for breach of the contract for failure to fur- nish such paraphernalia it was held that plaintiff could recover as damage the cost of preparing and advertising the display and that of i)reparing a special edition of a newspaper to have been dis- tributed to the crowd during the exliibition. PapiMs V. Miles (1907), 101 N. Y. Supp. 309. Action for breach of contract because of defendant's failure to furnish apparatus for the giving (jf a motion picture exhibition. Plain- tifT purcha-sed films to be ox- liibited on the stated occasion. Ihld that plaintifT's measure o{ damage was the dilTerence be- tween the amount paid for the films by plaintifi" and their market value. Kiralfij v. Macaulcy, 9 Ohio Dec. (Rep.) 833; 17 Weekly Law Bulletin, 331. The manager was held to be entitled to recover all expenses which he had actually incurred in preparation for the production of the play. Savery v. Ingcrsoll (1887), 46 Hun (N. Y.), 176. Defendant agreed to deliver lecture at plain- tiff's hall for which he was to receive a specified sum of money but failed to appear. Held that the following excerpt of the trial judge's charge was proper: "The plaintifT is entitled to recover his actual loss, his actual expenses, such expense of time and money as he had put himself to, as he had made in good faith and were reasonably made in view of the execution of the contract." 152 THE LAW OF MOTION PICTURES An examination of the above cited cases establishes the necessity for a hquidated damage clause in a contract between the manager of a company and the owner of a theatre. Such a clause is absolutely essential in the event of a breach, as it removes all uncertainty, and leaves only the question of the breach to be htigated. In a case wherein defendant agreed to furnish his theatre in Denver for one week and plaintiff agreed to provide his theatrical company and play in the theatre for that week, the profits to be divided, and each party to pay, on a breach by it, the sum of five hundred dollars as liquidated damages, it was held that this sum was not a penalty and could be recovered. ^^^ A frequent application of this principle is found in contracts made for the production of motion pictures. The owner of a play frequently contracts with a motion picture company to film the play; he may also agree to play the star part in it. In consideration he agrees to take a percentage of the profits. In an action brought by the owner of the play for damages for breach of the contract, where the company fails to make a production, it would be impossible for him to prove his damage, for there is nothing wliich would serve as a basis on which the probable profits of the picture could be estimated. Hence, the wisdom in this instance, of a lifiuidatcd damage clause. But where a defendant has agreed to compensate the plaintiff in profits, and the contract has been partially performed, and some performances have been given, this '" Mawson v. Leavitt (1896), 16 Misc. (N. Y.) 289; 37 N. Y. Supp. 1138. PROFITS AS A BASIS FOK DAMAGKS 153 establishes a basis on which future profits may l>e roni- puted.''"* That alone is the guide for hxiug the damages. Neither the evidence of experts on what profits might have been made, or evidence on what plaintiff earned with a third party at some time prior thereto, is admissible.''^ In a recent decision "° plaintiff had contracted with the defendant company to manufacture a picture and turn the same over to it. Upon doing so he was to re- ceive a lump sum equal to the cost of producing the pic- '^ElUler V. Brooks (1SS6), 54 Super. Ct. (N. Y.) 73. Plaintiff was to receive under her contract in lieu of all compensation a portion of the profits of tlie under- taking. Held that the testimony of experts, theatrical managers, as to what profits would have been made was incompetent. Held further that evidence of what plaintiff made under similar forms of agreement with some third party three or four years before was incompetent. Held further tliat the proper manner to compute profits was • to take the period during which the agreement was in operation and take the profits made during such period as the basis of com- putation. '^^Todd V. Kcene (1896), 167 Mas.s. 157; 45 N. E. 81. De- fendant refused to jwrmit plain- titT to perform, plaintiff was to receive a percentage of the re- ceipts. It was lield that testi- mony of plaintiff giving receipts of similar performances given by him, also showing his reputation, repute and popularity, also show- ing that during the previous year he had played in the same theatre to a large audience and that the town was the seat of an institu- tion of learning and that his per- formance would appeal to a large number of students, was inad- niissil)!e on the question of damages and that plaintiff was entitled to nominal damages only. ^*° Goldberg v. Popxdar Pictures Corporation (1917), X. Y. Law Journal, Jan. 20, Greenbaum, J. The api^eal taken in the action and reported in (1917), 178 A. D. (X. Y.) S6, was not from the order matle in pursuance of the motion above reported. 154 THE LAW OF MOTION PICTURES ture and subsequently a share of the gross receipts reaHzed from the exhibition of the picture. Defendant refused to take and pay for the picture, and plaintiff brought action. Judge Greenbaum held that the complaint should have set up a case for damages for the breach of a contract. Said he: "Upon the defendant's failure or refusal to accept the negative and films the plaintiffs had the right to retain them and to hold the defendant liable for damages for the breach of contract if its refusal to accept was un- justifiable. These damages would be measured by the actual cost to the plaintiffs of producing the negatives and films, and of the proportionate amount of the gross receipts derived by the defendant from the picture, as pro\'ided in the contract. It is obvious, however, that it would he impossible in this case to establish what the gross receipts would be where the defendants have failed to accept the films." Section 50. — ^Producer's offer of re-employment after breach. Since it is the duty of the actor, where he has been discharged, to mitigate the damages by seeking other employment, it is his duty to accept employment offered by the producer who has discharged him, providing the offer is made in gofjd faith, is for the balance of the con- tract period, for the same kind of services as under the contract, and providing the actor is still out of employ- ment. Where the actor was discharged, the producer in his offer to re-employ, is reciuired to tender all moneys due riiODrcEu's orrnni of re-employment after dreach loo and accruing unclor the contract between the time of the discharge and the time of the ofTer. That is tlie test of good faith. Wliere the actor was compelled to leave because of the brutaUty, abuse or other improper treatment of the pro- ducer or those iii his employ, he may ignore such offer of re-employment, as he is not required to subject himself again to such treatment. The services to be rendered under the re-employment and the duration of the same must be substantially the same as under the original contract.''^ \Miere the actor has obtained emploj-ment elsewhere, he is not bound to abandon it in order to accept such oJBfer of re-employment.'^^ >«• DcLoraz v. McDowell (1893), 68 Hun, 170; 22 N. Y. Supp. 606; aff'd 142 N. Y. 664; 37 N. E. 570. Plaintiff was employed for a def- inite period. Before entering upon the performance of her duties she was discharged. Later defendant made an offer to en- gage her for an indefinite period which plaintiff refused. Held that although defendant might luive .set up the offer to engage as a partial defense in mitigation of damages yet he might not set up such 'jffer and refusal as a complete defense to the action. Defendant cannot substitute a contract of iiulelinit(> hiring for one of a definite period. '*'■* Z)eari«^ v. Pearson (1894), 8 Misc. (N. Y.) 269; 28 N. Y. Supp. 715. "After the termina- tion of the contract by defend- ant's breach it could not be rein- stated and plaintiff deprived of her cause of action except by mutual consent. Defendant had a locus poenitentia?, but only to the extent of enabling him to reduce plaintiff's damages by providing her with employment of the same kind, which plaintiff would have been bound to accept unless in the meantime she had entered upon another's employ- ment or her refusal wa.s justifiable upon substantial grounds, uniler I)ain of suffering a diminution of lier recovery to the extent of the earnings she would have re- 156 THE LAW OF MOTION PICTURES An offer of re-employment may be pleaded by defend- ant, but it is not a total defense to the plaintiff's cause of action. It may simply be set up in reduction of and in mitigation of damages. ^'^'^ Section 51. — Grounds for discharge. An actor, hke any other employe, may be discharged for a violation of any express or implied covenant of his contract of emplo;yTnent. A prolific source of discord between actor and producer is the failure of the actor to appear at rehearsals; and where this failure to attend is willful or intentional, the actor may properly be discharged. ^^* ceived from the employment offered her." 1" DeLoraz v. McDowell (1893) , 68 Hun (N. Y.), 170; 22 N. Y. Supp. 606; aff'd 142 N. Y. 664; 37 N. E. 570; Dearing v. Pearson (1894), 8 Misc. (X. Y.) 269; 28 N. Y. Supp. 715. '** Fisher v. Monroe (1891), 12 N. Y. Supp. 273. Where plaintiff had been engaged as an actress for a season of 30 weeks, and she failed to appear at a rehearsal. Held that her failure to appear wa.s not explained and that it wa.s, under the circumstances, ground for discharge, and a ver- dict in her favor should be .^et aside. Reversing Fisher v. Mon- roe (1800), 11 N. Y. Supp. 207, where, however, the court also said: "And if the failure to at- tend (rehearsal) was willful or intentional, the plaintiff was prop- erly discharged, and cannot re- cover." Spalding v. Rosa (1877), 71 N. Y. 40; Slrackosh v. Slrackosh (1890), 11 N. Y. Supp. 251. Compare Robinson v. Davison (Eng.) (1871), L. R. 6 Exch. 269, where illness was held to be an excuse. Sec also : Wolfe v. Howes (1859), 20 N. Y. 197; Fuller v. Broion (1846), 11 Mete. (Mass.) 410; Jerome v. Queens City Cycle (1900), 163 N. Y. 351; 57 N. E. 485; Fenton v. Clark (1839), 11 Vt. 557; Rolfs v. Pooley Furn. Co. (1912), 176 III. Ai)p. 93; Beck'man V. Garrett (1902), 66 Ohio St. 136; 64 N. E. 62; Development Co. v. GROUNDS I'OU DISCHAROE 157 But illness of the actor may excuse him, if the illness is not protracted and does not seriously ailect the rei)ro- duction of the picture."^ Where the illness is, however, serious enough to pre\'ent the actor from rehearsing or performing, the right of dis- charge arises, as a contract of employment is purely personal in its nature, and illness or other incapacity to perform terminates all rights under it."^ King (190S), 101 Fed. (C. C. A.) The owner of a theatre may make 1)1. '^^ Robinson v. Davison (EnR.) (1871), L. R. 6 E.xch. 209. Where the contract of a performer requires the appearance of the artist on a particular clay, failure to appear because of illness docs not necessarily constitute a breach of the contract. See also: Spaulding v. Rosa (1877), 71 X. Y. 40; Brayidt v. Goodioin (1889), 3 N. Y. Supp. 807; Dickey v. LinscoU (1841), 20 Me. 453; DeZeichner v. Lamm (1914), 187 111. App. 25; Wells v. HaJJ (1915), 105 A. 1). (X. Y.) 705; 151 N. Y. Supp. 497; Young V. Am. Opera Co. (1887), X. Y. Daily Reg., May 27; Williams v. Buller (1914), 105 X. K. (Ind.) 387; Thomas v. Beaver Dam Mfg. Co. (1914), 157 Wis. 427; 147 N. W. 304; Bellini v. Gye (Eng.) (1870), 1 Q. B. 183. See also: Const v. Marelzek (1855), 4 E. D. Smith (X. Y ), 1. rea.sonable rules and regulations by which the artists are to be governed. The contract in the instant case provided that ab- sence of the artist would cause a forfeiture of the contract unless such absence was caused by ill- ness and provided furtlier that such illness had to be proved by the doctor appointed by the director. The fact that the artist wais a homeopathist did not ex- cuse the artist from complying with the rule of the owner. Graddon v. Price (Eng.) (1827), 2 C. & P. 010; 12 E. C. L. 280. The actress was given one day's notice to appear in the part in which she had previously played. Held that it wa.^^ a question for the jury whether the absence of actress because of illness justified the imposition of a fine. '" Poussard v. Spiers (Eng.) (1870), 1 Q. B. I). 410. Whore the contract provides for employ- 158 THE LAW OF MOTION PICTURES Illness of the star actor, preventing the continuance of the making of the film does not release the producer from his obligations toward the other members of the com- pany. ^^^ Incompetency is just ground for discharge. ^^^ But ment for an extended appearance and the absence of the artist may result in serious injury, failure to appear although caused by illness gives the manager a right to rescind the contract. See also: Harley v. Henderson (Eng.) (1884), Times, Feb. 18, 19. Macalay v. Press Pub. Co. (1915), 170 A. D. (N. Y.) 640; 155 N. Y. Supp. 1044. Plaintiff, a professional cartoonist, was dis- charged before the expiration of the term of his contract because of continued tardiness in coming to work. It was held that de- fendant was entitled to fix a rea- sonable time at which plaintiff should report for duty, and if the employe did not report at such time either through illness or any other cause, the defendant could at his option terminate the employment. "' Wcnlworlh v. Whitney (1903), 25 Pa. Super. 100. Con- tract provided for weekly pa.y- mcnt with deductions only "for any nights or days on which tlie party of the second part (plain- tiff) may not be able to perform or sing, through illness or other unavoidable cause, or at such times that the company may not be giving performances." Held that failure to give performance because of absence of necessary artist where plaintiff was ready to go on, was no excuse for re- fusal to pay plaintiff her com- pensation for the performance even though defendant was not at fault. GaiUin v. Searle (1881), 1 N. Y. City Court, 349. Defendant dis- charged plaintiff because of ill- ness of star of production and her inability to perform. Held that such illness did not relieve defendant from his obligation to plaintiff. i"** McLaughlin v. Hammerslcin (1904), 99 A. D. (N. Y.) 225; 90 N. Y. Supp. 943. It was error for the trial judge to refuse to charge (at defendant's request): "If tlu! plaintiff gave an in- coiiipctciil jierformancc the de- fendant was at liberty to ter- minate the agreement without GROUNDS FOR DISCHARGE 150 what is "inconipetcncy" is often a debatublo (luestion. In one case "incompetency" was held not to be equiv- alent to "unsatisfactory" and really to mean the actual physical disability of the artist to appear,"'^ and not the professional ciuality of the voice.'"" The rule as to com- petency is well stated in Brandt v. Godwin,^^^ holding in effect that tlic actor impliedly warrants that he has the requisite ability and skill to perform. any notice whatever, and was not compelled to permit him to perform for the entire period of the contract." '*' Brand v. Godwin (1890), 8 N. Y. Supp. 339; (1890), 9 N. Y. Siipj). 743. An opera singer wa.s eiij^uKcd, a portion of the contract reading: "In the event either of incompetency or of such con- tinued illness or decrease of physical or vocal faculties as to prevent one from doing service for a period of more than two weeks, the company may in its discretion cancel or annul the contract with the party in ques- tion, without i)eiiig subjected to any claim for damages. The vocal and musical directors shall be the .sole judges of the fact and extent of the incompetency, in applying this rule." The court held that "incom- I>etency" was not ecjuivalent to "unsatisfactory," and that some proof of actual incompetency should have been offered. "0 Young v. American Opera Co. (1887), Daily Reg. (X. Y.), May 27. The contract there provided that in the event of incompetency for two weeks, the plaintiff could be discharged. The word incompetency was held to mean phj'sical disability due to illness and not professional quality of the voice. ''-'Brandt v. Godwin (1889), 3 N. Y. Supp. 807. " It is the rule that where a person engages to perform a service requiring the possession of special skill and (jualities, there is an implied warranty on his part that he is possessed of the retjuisites to perform the duties undertaken, and if found wanting, the right to discharge exists." To the same effect: Spaulding v. Rosa (1877), 71 X. Y. 40. 160 THE LAW OF MOTION PICTURES Discharge for incompetency must be made in good faith ^^- and can only be made after the actor has been given a reasonable opportunity to perform or rehearse his role ^^^ and on sufficient evidence of his incompe- tency. ^^^ But where the artist has commenced rehearsal and the producer feels that he is incompetent, he is imder no obligation to permit him to continue, but may dis- charge him at once.^^^ ^^^Grinnell v. Kiraljy (1890), 55 Hun (N. Y.), 422; 8 N. Y. Supp. 623. A contract in which plaintiff was engaged as a sou- brette and in which the manager reserved the right to discharge her for incompetency or other reasons if he became dissatisfied with her, held to be qualified by the use of the words "in good faith" and that plaintiff had bound himself by those words not to act arbitrarily or capriciously. >" Walton V. Godwin (1890), 58 Hun (N. Y.), 87; 11 N. Y. Supp. 391. The contract provided that "the vocal and musical directors shall be the sole judges of the fact and extent of the incom- petency" of the plaintiff. Held that discharge was not justified where after signing of the con- tract plaintiff was never called upon to rehearse or perform. "'//ar/e?/ v. Uemlcrson (lOiig.) (1884), Times, Feb. 19. Plainlilf was engaged to play at the Comedy Theatre in London. Four months afterward the de- fendant informed him that the author, the chorus mistress and the conductor complained that he was "frightfully out of tune" and plaintiff was accordingly discharged. Held that the evidence was not sufficient to show that plain- tiff was incompetent to perform his role, and judgment was ren- dered in his favor. Charleij v. Potthoff (1903), 118 Wis. 258; 95 N. W. 124. It was for the jury to say whether plain- tiff gave the kind of performances contemplated by the contract. ^''"T/ull V. Iloyt (1899), 37 A. D. (N. Y.) 521; 56 N. Y. Supp. 78. An actress was en- gaged to play a part, defendant agreeing to give her "a trial." She brouglit this action for breach of a contract of employ- ment for a season and the court nonsuited her. See also: Mc- GROUNDS FOR DISCHARGE IGl The death of one '. See also: Ilaag v. Rogers (191 1 ) , 9 Cla. Apf). G.'>0; 72 S. E. 46, where the em- the emploj^er's place of business. See also: Standing v. Brady (1913), 157 A. D. (N. Y.) 657; 142 N. Y. Supp. 656; Rajalo v. EdeU stein (1913), 140 N. Y. Supp. 1076; SO Misc. (N. Y.) 153; Duff V. Russell (1892), 133 N. Y. 678; 31 N. E. 622; aff'g 14 N. Y. Supp. 134; Standidge v. Lynde (1905), 120 111. App. 418; Morrison v. Hurtig (1910), 198 N. Y. 352; 91 N. E. 842. "1 Lacy V. Obaldiston (Eng.) (1837), 8 C. & P. 80; 34 E. C. L. 300. ^^^Alexender v. Potts (1909), 151 111. App. 587; Carpenter Steel Co. V. Norcross (1913), 204 Fed. (C. C. A.) 537. '8' Fitzgerald v. George Nenmes, Ltd. (I'^ng.) (1902), Times, April 22. An editor who claimed an interest in a periodical because the magazine liad been founded at his suggestion, was dismissed without notice. Held justified. GROUNDS FOR DISCHARGE 163 The jjroducer may discharge the actor fur drunkenness; one act of drunkenness is sufficient; '^^ and where he is sued for a breach the producer may set up drunkenness as a riglitful discliargcJ'"''' But where, after intoxication, the actor is retained in his cmplo^inent, this would probably be a condonation, and he could not subsequently be discharged therefor,'" unless he persisted in his derelictions.'" •" /?a.s.s Furnace Co. v. Cfa.s.s- See Willis v. Loucry (1912), 57 cock (1SS6), 82 Ala. 452; 2 So. 315. Where an employe while in the service of his employer becomes drunk and manifests .sucli drunk- enness b}' boisterous and dis- orderly conduct, the employer may discharge him as it "is such misconduct as to constitute a violation of the stipulation, im- plied in every contract of service, that the employe will conduct himself with such decency and politeness of deportment as not to work an injury to the business of the employer." "Tliis he can do by a single act of drunken- ness." To the same effect: GonsoliJi v. Gcarhart (1SG2), 31 Mo. 585. "" Broivn v. Bdldtrin-Glenson (1891), 13 X. V. Supi). S03. "Ac- cordingly it was opep to the de- fendant on the pleadings (under a general denial) to show that the plaintiff's dismissal was riglit- Jul, because of into.xication." So. (Miss.) 418. And in par- ticular Linton v. V. F. Co. (1891), 124 X. Y. 533; 27 N. E. 406, which holds that a defendant may not offer pmoi of justifica- tion for discharge under a general denial, but that the same must be pleaded as a defense, since a complaint wliicli alleges a con- tract and a discharge prior to its expiration makes out a prima facie case. "The law will hot presume that a servant ha.s been derelict in his duty." The bur- den of proving this is upon the defendant. '•« BalchcUler v. Standard Plunger El. Co. (1910), 227 Pa. 201;75Atl. 1090. '" Macauloij v. Press Pub. Co. (1915), 170 A. D. (X. Y.) 640; 155 X. Y. Supp. 1044; Ginsberg V. Friedman (1911), 146 A. D. (X. Y.) 779; 131 X. Y. Supp 517; Posbach v. Sackelt A- Wilhehnn Co. (1909), 134 A. D. (X. Y.) 164 THE LAW OF MOTION PICTURES It has been held that a musician may be discharged by his manager where the musical union to which they both belong will not permit the former to play.^^^ And an actor who is violating the law by not obtaining a re- quired Hcense, may also be discharged. ^^^ While actual notice is indispensable/"" no precise words of discharge are required; any speech by which he is informed that his services are no longer desired suffices. ^'^^ The death of the actor at once terminates the contract. ^^^ 130; 118 N. Y. Supp. 846; United Oil Co. V. Grey (1907), 102 S. W. (Tex.) 934. ^^^Scarano v. Lemlein (1910), 66 Misc. (N. Y.) 174; 121 N. Y. Supp. 351. "Where both plain- tiff and defendant were members of a musical union and entered into a contract of employment, there is a presumption that the contract is to be read in the light of the union's by-laws, in so far as such by-laws attempt to regu- late the terms of employment of its members, and defendant could properly discharge the plaintiff when, under the by- laws of the union, the plaintiff was preclutlcd from performing the work." ^''^Gray v. The Oxford, Lim. (Eng.) (1906), 22 T. L. R. 684.. Defendant owned a music hall; plaint ilT producc^d a sketcli "Tlic Fighting Parson" in it under a contract for six weeks. After five weeks defendant decided that this was a stage-play and could not be performed unless he had a theatre license. He cancelled the contract. Held that this sketch was a stage-play and could not legally be produced in a music hall and that defendant was entitled to cancel his contract. '■">DeGdlert v. Poole (1888), 2 N. Y. Supp. 651. "'Sigmon v. GoldMone (1906), 116 A. D. (X. Y.) 490; 101 N. Y. Supp. 984. As to the burden of proof see: Maraita v. Ilecr Dry Goods Co. (1915), 190 Mo. App. 420; 177 S. W. 718. >" For detailed discussion of this proposition, see Sections 10 and 14. GROUNDS FOR DISCHARGE 165 But whoro tho actor was to receive part of his compen- sation during the term of the contract, and the Ijalance at the end, his heirs may sue on a quantum meruit for the period during which he performed.'"^ ^Miere the ])arti(>s agi'ee Ijeforehand as to the manner and temis of discharge, it would seem that they would be bound thereby, '^^ and that the damages recoverable would be such as were fixed by the contract.'"^ >"TFo//c V. Howes (1859), 20 N. Y. 197. Where contract of employment provided that plain- tiff's testate was to receive par- tial compensation duriiiR period of employment and balance upon termination of contract period it was held that plaintiff was entitled to recover for his tes- tate's services upon a quantum meruit basis, where plaintiff's testate was incapable of carrying out the agreement because of illness. "* Griffin V. lirooLlyn Hall Club (1902), 68 A. D. (X. Y.) 5GG; 73 N. Y. Supp. 864. "The contract between the parties contained a clause providing that the de- fendant might 'at any time after the begiiming and prior to the completion of the period of this contract give the |)arty of the second part (plaintiff) ten days' written notice of its option and intention to end and determine all its liabilities and obligations under this contract, in which event, upon the expiration of said ten days, all liabilities and obligations undertaken by said party of the first part or its as- signs' should at once 'cease and determine.' "It is urged that because de- fendant under this clause might have discharged plaintiff upon ten days' notice, it cannot be held liable upon its breach for damages for more than that period. {Watso7i v. Russell, 149 N. Y. 3S8.) "We are unwilling to adopt this view. We are not interested in what defendant might have done under this contract, but in what it did do." Watson V. Russe'l (1896), 49 X. Y. 3,S8; 44 N. E. 161. '» Egbert v. Sun Co. (1903), 126 Fed. (C. C.) 568. 166 THE LAW OF MOTION PICTURES Section 62. — Actor's breach of the contract— damages. While a producer who engages an actor and "features" hun in an important role, may suffer considerable pecun- iary loss because of the latter's breach of the contract, it is not an easy matter to collect damages therefor. Of course, the producer has a cause of action agamst the actor, ^"^ but that helps him very little, smce it is next to impossible to find a true basis for damage. The way in which this is usually overcome is to insert in the contract a clause for Hquidated damages to be paid by the actor m the event of his breach. Where such damages are reasonable in amount, the court will uphold them.'"^ The safest clause to insert is one providing that "6 Placide v. Burton (1859) , 17 Super. Ct. (N. Y.) 512. A man- ager may maintain an action against an actor who failed to appear upon the date agreed upon, for the damages sustained by him by reason of the breach. Bellini V. Gye (Eng.) (1876), 1 Q. B. D. 183. Plaintiff was en- gaged especially as a tenor to apj)ear in London. He failed to arrive in time to attend rehearsals, because of illness, and when he offered to perform dofciulant refused to permit him, claiming a breach. IIcM that defendant could not rescind, but that he could have sued j)Iaintiff at law for tlio diitii- agcs sustained; that his covenant to appear on a specified opening date did not go to the root of the matter — in other words, it was not of the essence of the contract. 1" Bustanobyv. Revardcl (1911), 71 Misc. (N. Y.) 207; 130 N. Y. Supp. 894. Plaintiff was the owner of a restaurant. It agreed with defendants to employ them at SI 15 a week as musicians for two years, and the contract pro- vided that in case defendants breached the same they should be liable for SI, 000 as liquidated damages. Held that in view of the fact that in case of a breach the dam- ages to plaintiff would necessarily be uncertain, this was a reason- able provision. actor's BIIEACH Oh THE CONTRACT l»i7 tho actor will pay as liquidated damages an amount equal to what he would have received, had he performed.''* It matters very little whether the words "penalty" or "li(iuidated damages" are used. The courts will not be bound 1)}' the language of the contract.'"* Tlic contract, however, wa.s void for want of mutuality since the plaintifT ilid not agree to hire defendants for two years, and since it had tiie privilege of dis- charging tliom at any time. Conrial Mclwp. Opera Co. v. Brin (1910), G6 Misc. (X. Y.) 282; 123 N. Y. Supp. G. Where in a contract for ser\'ices of a musical artist it is provided that upon a breach he shall pay as liquidated damages a specified sum, tlie court will award judg- ment for such sum to the in- jured party where it is impossible to ascertain the exact loss or damage which the injured party may sustain by reason of the breach. "^Corsi v. Mardzck (ISoo), 4 E. D. Smith (N. Y.), 1. Ildd that a provision in a contract between a singer and director of opera whereby the singer for- feited one month's salary ujion his failure to appear at any enter- taiiunent for whicli he might W announced unless it was due to illness of the artist, such illness to Ije certified by the doctor ap- I)ointed by the director, was valid. G aiders Green Am. & Dev. Co. V. Relph (Eng.) (1915), 31 T. L. R. 343. Defendant, an artist , agreed to perform twice an evening at plaintiff's music hall. For his default he agreed as liquidated damages to pay the amount he would have received for each performance. The contract was subsequently modified, and de- fendant defaulting, the court held him liable in damages as computed by the modification. >■» Pador v. Solomon (1899), 26 Misc. (N. Y.) 125; 55 N. Y. Supp. 956; afT'g 25 Misc. (X. Y.) 322. In a contract between a theatre manager and actt)rs it w;is provided that upon a breach by the actors that they would become liable to a penalty of S.')t)0. Held, that was rea-^onable, and not disproportionate, and plaintiff recovered. Held further tliat the fact that the word "iM'nalty" was used did not make it such. The courts would 168 THE LAW OF MOTION PICTURES It sometimes happens that the producer and actor agree to divide the profits, and that one of the parties subsequently refuses to carry out his agreement in that respect. The courts, construing a contract of this nature, usually hold it to be one of employer and employe, and not one of joint venture. ^^^ Where the actress was required to pay her manager a specified percentage of the profits above twenty thousand dollars it was held that the word ''profits" was in- tended to mean ''net receipts" and that the actress not be bound by the word, but rather by the intent of the par- ties, and by the facts. ^^'^Mallonj V. Mackaye (1899), 92 Fed. (C. C. A.) 749; Mackaye V. Mallory (cross bill). Mallory, a theatrical manager, made a contract with Mackaye whereby defendant agreed to give his exclusive services to Mallory for a period of ten years as actor, author, director and inventor, tiic literary property and inven- tion of Mackaye to belong ab- solutely to Mallory. Mallory agreed to pay Mackaye a speci- fied sum per annum and in addi- tion thereto a portion of the profits. Held that the relation- ship between the parties was one of employer and employe and not one of jf)int ventures. After the expiration of the second year Mackaye abandoned the contracts. Held that the contract was entire and not severable and that a breach as to a material part by one party discharged the other. Heldjurlher that where after an abandon- ment of the contract by one party, the other served notice of termination as provided by the contract, the giving of such subsequent notice of termination did not constitute a waiver of the breach. To the same effect: Thomas v. Springer (1909), 134 A. D. (N. Y.) 640; 119 N. Y. Supp. 400; Keith v. Kdlerman (1909), Ki!) Fed. {C. C.) 19G; McLdlan v. (loodicin (1S99), 4.3 A. D. (N. Y.) 148; 59 N. Y. Supp. 290. For a discussion of and excerpts from the above cases, see Section 02. CHANGING THK MOTION Pir'TT'RE 169 could not charge the cost of production against the prolits."*' Section 53. — Changing the motion picture. hi making a motion i)icturc', scenes are taken according to a set plan, the scenario. The scenes are not taken consecutivcl}', in their logical sequence, but in such se- quence as will complete the picture most rapidly and involve the least expense. ]\Iany scenes are taken over a number of times in order to insure perfection both from a photographic and acting vie^^'point. After all the scenes outlined in the plan are taken, the different portions of tlie film are assembled and viewed, and those scenes which are inferior in acting or in photog- raphy, those which are dui)lications and those which retai-d the action are "cut." The remahiing scenes con- stitute the finished film. The ciuestions which naturally present themselves are: may the motion picture producer after the film is set up in its final form, change the order of the scenes; may he edit scenes, ma}- he interpolate new scenes which were taken separately from the scenes of the film; may he take scenes of one picture for which the actor si)ecially posed and make use of such scenes in an entirely difTerent film; and may he take scenes which have been discarded be- cause of inferior acting or poor i)h()tograi)hy or because they were "repeats" and make such use of them as he sees fit. »'JV/a(/cr V. Nethersolc (1902), 71 A. D. (X. Y.) 383; 75 X. V. Supp. 987. 170 THE LAW OF MOTION PICTURES None of the above questions has as yet come before the courts, but it is reasonable to assume that the courts will apply to such questions those rules of law which have developed in the common law for the protection of creators of literary work. The analogy is very close between the owner of a novel or play to whom the author or playwright has sold his work outright or by whom the author or playwright was engaged to create such work, and that of an actor who has posed in a motion picture. In the former case the effort of the artist has resulted in a work which portrays hy means of language dramatic action. In the latter, the effort of the artist has resulted in a work which portrays hy means of pictures dramatic action. In both instances the legal title in the product is in the owner of the finished work, who alone may ex- ercise dominion over it. In both cases the artist has an interest remaining in the property because his re-putation and standing are dependent upon the proper use of the prop- erty. Moreover, in both cases the owner of the work may use the name of the artist in the exploitation of the work. We have already discussed the rights of an author or playwright who has parted with title to his work by out- right sale, and those of an author or playwright who has never had title in the results of his labor because of the relationship of oni])loyer and employe. '^^ Let us api)ly those rules to the questions before us. The finished film coming from the cutting room is similar to the work of the author or playwright delivered in final form to the purchaser thereof. '"^ See Section 12, rHANCiING THK MOTION PICTURE 171 The motion picture producer may change the order of the scenes, may edit scenes and may add such scenes which have been discarded because they were "repeats" or because they were regarded in the cutting process as rctartling the action; hut only in so far as such changes in the picture are not radical in their nature or do not constitute a mutilation of the film. By radical is meant such a change as will occur for instance where a feature film is cut down to a two-reel film or vice- versa, where by adding a large number of discarded scenes a one or two reel film is stretched into a feature picture. With re- spect to mutilation it is a (luestion of fact in each instance. The remedy both in the case of a radical change and in that of mutilation is an action for libel. "^^ Title in the work being in the motion picture producer the actor may not go into equity to enjoin the exhibition of such changed film,'^' unless in addition to the libel, there is the clement of "passing off" or fraud and deception of the ])ub]ic. »" See Section 12. coinpleted liis work therein. The ^^*CliapUn V. Essanay (191G), lihn \v:is then released a.s a four- N. Y. Law Journal, May 23d, reel feature film. The plaintiff Hotclikiss, .].; alT'd 174 A. D. contended that under his con- (X. Y.) SOO. IMaiiitiiT posed for tract tlie defemlant could not defendant in a two-reel film which change the film in any manner, wa.s entitled " Burles(|ue on Car- after its completion by him. men." The defendant, after the without first securing his con- termination of plaintilT's em- sent. He also contended that ployinent, inserted a number of the .stretching of the film by in- discarded scenes taken in the serting discarded scenes and course of the making of the film scenes taken without his par- and also added several scenes ticipation, all of which retarded made without the |)articipati()n the action and destroyed his of the plaintiff, and after he had pruminciuv in tlie lilm, .seriously 172 THE LAW OF MOTION PICTURES In the same manner that an author or playwright has a right to have the identity of his work retained, so an actor is entitled to have the identity of the picture in which he posed retained. The motion picture producer may not separate particular scenes from the film and make use of them elsewhere, nor has he the right to in- injured his reputation and stand- ing as a motion picture " star." In denying a motion for an injunction pendente lite, the court said: "Notwithstanding the earnest argument of counsel for the plain- tiff, I think this motion should be denied principally for the fol- lowing reasons: "(1) Plaintiff's right under par- agraph third of the contract of December, 1914 (assuming such contract to have remained in forte unaltered), to enjoin the production because he has not approved of the play is doubt- ful. "(2) The play itself is undoubt- edly the property of the Essanay Film Manufacturing Company, by which company plaintiff was employed, and the circumstances of plaintiff's services in connec- tion with the creation of the play distinguish the case from those cases which hav(! njjplied the prinfii)lo of another's exclusive right <;f literary j)roi)erty. " (3) The facts do not justify a claim that the association of plaintiff's name with the play as produced amounts to a fraud upon the public. A fair construc- tion of the advertisements of the play is not that plaintiff is the author or producer, but that he is the star or principal actor. "(4) It is not claimed that so far as he is pictured in the play his part is garbled or distorted. Whatever of him is shown is a truthful representation. Whether plaintiff's contract rights reserve to him, rather than to his em- ployers, the sole privilege of de- termining what of his pictures shall be incorporated into the play as produced is at least doubtful. "(5) Whether plaintiff will suffer any damage from the pro- duction is prol)lematical, while an injimction is certain to work considerable loss to defendants." See al.so in this connection: Cahriel v. McCabe (1896), 74 Fed. (C. C.) 743. CONTRACTS WITH INFANTS 173 cori)oratc new scenes taken from some other film (jr photographed separately from those taken specially for the film in question. The actor has the same remedies for any such breach that an author or pla>'^vright has. Finally, any use made by the motion picture producer of those scenes which have been discarded because of their inferiority either in their photography or acting, constitutes a hbel. Coming now to the exhibition of the film, the po.sitives and the negatives are the absolute property of the motion picture producer. He may release them at any time he sees fit, and through whatever exchanges are agreeable to him. The films may be showTi in any theatres wherein the positives are dehvered. In other words, the actor has no control over the exploitation of the film unless he has contracted otherwise. Nor has the actor any control of the advertising issued in connection with the exploitation of the film, except as by contract between the parties. Section 54. — Contracts with infants. Infants are engaged to pose in motion pictures, not only in minor parts, but in important as well as occa- sionally in stellar roles. Contracts of hire are voidable at the option of the infant. Upon avoiding the contract the infant may gen- erally recover for services rendered, although the producer would be entitled to set off any damage he may have sustained by reason of the infant's avoidance. The motion picture producer may not enforce a nega- tive covenant to restrain the infant from working for 174 THE LAW OF MOTION PICTURES anyone else during the contract period. ^^^ The courts will not enforce such a negative covenant even where the guardian or parents and the infant are both parties to the agreement. ^^^ ^^'Aborn v. Janis (1907), 62 Misc. (N. Y.) 95; 113 N. Y. Supp. 309. ^'^Aborn v. Janis (1907), 62 Misc. (N. Y.) 95; 113 N. Y. Supp. 309. The defendant Elsie Janis, an infant, had contracted through her general guardian with the plaintiff for her services as an actress. She subsequently- rendered services for one Percy Wilhams and plaintiff sought to restrain her under a negative covenant. The court, denying the motion, said: "An adult, who was bound to render peculiar and valuable services to another, and has agreed to render them for no one else during the term of the contract, will, it is to be as.sumed, continue to observe his contract, if restrained from rendering his services to another person; that is, the injunction in its cogent effect upon adult intelligence would result in per- formance of the contract, and it is for this reason that the courts have .•vdf)ptod the remedy hy injunction in ca.scs of contract for personal services as a means to the desired end — specific per- formance of the agreement made by the party thus enjoined. But if prior to the attainment of the age of twenty-one years, a person may not ordinarily make a con- tract because of that absence of mature intelligence which the law presumes to arise from nonage, how may it be said that tlie infant's intelligence will be affected by an injunction, as though the wisdom of an adult were present? To determine that such a contract should be specifically enforced by resort to an injunction pro- hibiting the breach of the nega- tive covenant would be to say, in effect, that the infant, a per- son lacking sufficient judgment to contract, must yet exercise sufficient judgment as to his or her personal interest to elect be- tween performing a contract not necessarily wisely made, and indeed, presumably unwisely made, or take the harsh alterna- tive of starvation for a refusal to perform at all or for an omission U) perform in a sati.sfuctory manner; and all this while the CONTRACTS WITH INFANTS 175 And while it has been said that a contract of the infant beneficial in its character may be enforced,'*^ nevertheless neither in this country nor in England will the contract for j)ersonal services of the infant be deemed such a contract.''''^ infant, because of inunuturitj', is doomed to be under the protec- tion of the court as its ward." VetU V. Osgood (1837), 30 Mass. 572; Idc v. Brown (1004), 178 N. Y. 26; 70 X. E. 101. See also: Gordon v. Barr (1917), N. Y. Law Journal, Jan 20. Hen- drick, J.: "In tliis motion to restrain defendants from 'ren- dering services as artists or the- atrical jxTformers,' the complaint alleges that defendants have broken their contract and threaten to continue 'to do the various things and matters in contra- vention of the said agreement.' Defendants state in an affidavit that tlicy were only twenty years of age when they signed the con- tract, but infancy Ls not alleged as a defense. Plaintiff is a 'man- ager' and acts as an intermediary between tlieatrical performers anil their employers. Defendants arc twin sisters and perform dancing acts and sing at music halls and cabarets. They claim that their sers'icos are neither 'unique, extraordinary or ix?culiar' and, therefore, if they have broken the contract, plaintifif has an adequate remedy at law, and cite Ilaintnerstein v. Mann, 122 Supp. 278; Lasky Feature Co. v. Suralt & Fox Fihi Corp'n, 154 Supp. 974, They also argue that as plaintiff was not a theatrical manager, but simply had an interest in their compensation, he has an ample legal remedy. To this point they cite Solman v, Arcaro, 129 N, Y, Supp. 689. I do not think that the remedy of injunction can be invoked unless plaintiff makes a case reasonably clear and in my opinion plaintiff's case lacks the usual requisites. The motion is denied," '"/m re Livin-gston (1866), 34 N. Y. 555. ^'»Aborn v. Janui (1907), 62 iMisc, (N, Y.) 95; 113 N, Y, Supp. 309; Dc Fratwcsco v. Bar- num (Eng.) (1889), GO L. J. Ch. 03. In New York it is a misde- meanor to employ minors under specified ages for singing or danc- 176 THE LAW OF MOTION PICTURES Section 55. — Inability of producer — when studio closed by authorities. The inability of a manager to open his theatre does not reUeve him from UabiUty under his contract of employ- ment. ^^^ In hke manner a producer is not freed from habiUty because he cannot make use of his studio. But the manager frequently inserts a clause, intended to modify his liability in that respect, and if the clause is properly worded, he may succeed in doing so.^^" But ing — see People v. Eicer (1894), 141 N. Y. 129; 3G N. E. 4; People V. Stevens (1893), 70 Hun (N. Y.), 243. «9/e{ce V. Miner (1915), 89 Misc. (N. Y.) 395; 151 N. Y. Supp. 983. "The defendant at- tempts to excuse his failure to furnish employment for the week of December 8th, 1913, on the ground that no license had been obtained for the theatre in which the performances were to be given, and it is claimed that this was an 'interference or restraint of a legal authority. . . .' That clause plainly contemplates ac- tive interference by public of- ficials, and (loos not mean re- straint by law, or include a case where defendant failed to obtain or cause to be procured a theatre license." Ilardie v. Balmain (Eng.) (1902),18T. L. R. .5.39. ^^''Halcroft v. West End Play- house, Ltd. (Eng.) (1916), S. C. 182. Where defendant, owners of a theatre in the course of con- struction, had contracted with a performer to appear therein after its completion, and the building of the theatre was not completed, it was held that defendant was not liable, as the contract con- tained a clause that it was "sub- ject to the said theatre being in the occupancy and possession of the management." Thring v. Lucas (Eng.) (1903), Strong on "Dramatic and Mu- sical Law," 3d Ed., p. 30. Where the theatre was closed by the authorities in order that certain repairs should be made. Held that the owner was not liable under a contract which con- tained a clause that "ICngage- ment to be void if the perform- ance is objected to by the jjublic QUESTION'S OK TRAVEL 17 just as ofton tho huif!;uap;c may ijc too broad or iiiartiliciui and tlic result will be that the actor may recover dam- ages.'^' But the language of such a contract is strictly construed, and the manager who assigns his interest in the show to another may not evade hability, for that is not a closing of the theatre. 1^2 Section 56. — Questions of travel. In filming a i)Iay it is frecjuently necessary to take scenes at places other than at the studio of the motion picture producer. An actor who agrees to participate in the making of a picture knows that he may be required to travel while engaged in the making of the picture. He is authorities, or stopped by any cause over wliich the manage- ment have no control." '" Hardie v. Balmain (Eng.) (1902), 18 T. L. II. 539. Plain- ti(T, manager of a company, con- tracted with defendant, manager of a theatre, to appear for six niglits, profits to be divided; if the theatre was closed through fire, death in the Royal Family, "or any cause whatsoever," con- tract to be terminated. Tlie theatre was closed on what was to be the opening night, not having been completed. Ihid that the manager of the theatre was liable under the contract. "Any cause whatsoever" meant any cause external to that outside the control of the parties to the contract. See also: liicc v. Miner (1915), 89 Misc. (N. Y.) 395; 151 N. Y. Supp. 983. ^'^Loretle v. Cullins (Eng.) (190G), Strong on "Dramatic and Musical Law," 3d Ed., p. 27. In tlie contract for plaintiff's appearance for a week at the Hippodrome, it was provided that in the event of the hall clos- ing for any cau.se tlie contract was to terminate. The manager assigned his interest to another. Held this was not a closing, and plaintiff recovered. 178 THE LAW OF MOTION PICTURES engaged to pose in the picture and hence agrees to pre- sent himself at the places where the picture can be taken. Unless, therefore, he expressly provides otherwise in his contract of employment he must attend at the places where the picture is to be taken and the cost of trans- portation, as well as of his board and lodging, must be borne by him."^ Section 57. — ^Booking agencies. In several of the states, laws have been passed re- quiring all agencies that procure employment for actors to obtain hcenses and otherwise comply with certain re- quirements. These agencies are not permitted to charge more than a fixed rate and for a stated period during which the actor receives a salary. ^^^ Attempts are often made to evade the statute, by in- serting a provision in the booking contract that the person procuring the engagement is a "manager" and that the increased rate of compensation is paid in consideration of certain services rendered or to be rendered — more or '" Baity V. Melillo (Eng.) by Chapter 587 of the Laws of (1850), 10 C. B. 282; Smith v. 1916. Herrivg-II all-Marvin Safe Co. Interstate Amusement Co. v. (1909)^ 115 N. Y. Supp. 204. Sec Albert (1913), 161 S. W. (Tenn.) in this connection: Day v. Klaw 488. A bookinp; ap;ency which (1908), 112 N. Y. Supp. 1072. had made a contract in one state On the question of the distance for the performance of certain he may be required to travel see: acts in anotlier state, was held Gath V. Interstate Amusement Co. not to have comphed with the (1912), 170 111. App. 614. provisions of the latter state with '"< (Chapter 700 of the Laws of respect to license and tax, and 1910 (New York), as amended so could not recover. BOOKING AGENCIES 179 less fictitious. The courts have i)re vented recover}' upon sucli contracts.''-*^ The booking agent is entitled to his compensation when the introduction is effected and the actor is eventually accepted.'-'*' Where the contract of emplo>Tiient was postponed by the actor through force majeure the actor is not obligated to pay until he actually enters upon his engagement. '^^ '»»il/e?/ers v. Walton (1912), 76 MLsc. 510; 135 N. Y. Supp. 574. Utld that the plaintiff who sued for services which he claimed he rendered as "manager" under a contract calling for a compensa- tion of 5% of any salary received by defendants for performing in a vaudeville sketch, was evading the Theatrical Agency License law (Chap. 700, Laws 1910, amended 1916), and a judg- ment in his favor was reversed. '*> Colics V. Maugham (Eng.) (1909), Times, Dec. 21. One who is in the business of placing dramatic compositions for pro- duction is entitled to compensa- tion when in his business ca- pacity he introduces an author to a manager who eventually ac- cepts his play. See also: King v. Broadhurst (1914), 164 A. D. (N. Y.) 689; 1.50 X. Y. Supp. .376. An actor who made a contract with a playwright whereby he agreed to procure a producer of a play pro- vided he wa.s given the leading role may recover for the reasonable value of his services for securing such a manager where he waived his right to play the leading role upon the representation of the playwTight that he would "do what is right" and other similar expressions. ^^^ Foster's Agency, Lim., v. Romaine (Eng.) (1916), 32 T. L. R. 545. Plaintiff sued for breach of a contract whereby he was to be compensated bj' defendant for procuring an engagement in Australia. Becau.se of the dan- gers incidental to submarine war- fare defendant postponed her engagement. Held there could be no recovery, a.s defendant had not breached the contract. Auckland & Bninetti v. Col- lins (Eng.) (1S9S), 14 T. L. R. 348. A booking agent's agreement for 180 THE LAW OF MOTION PICTURES Section 58. — Workmen Compensation Acts. Most of the states as well as the federal government have enacted compensation acts. Actors who are engaged to pose in motion pictures as well as directors, camera men and the other employes of the studio probably come within the protection of the statute in a number of states. In each instance it is al- ways a question of the construction of the statute in- volved. ^^^ The interestmg question arises whether an actor em- ployed in a state where a workmen's compensation act is in force with respect to members of the theatrical pro- fession can enforce his rights under the act against his employer when the injury occurs without the state while he is en tour. The question is ordinarily one of construction of the statute. In Massachusetts the court following the Eng- Ush rule "^ has held that the statute has no extraterritorial commission was held cnforcible the question whether vaudeville where theatre had been torn actors come within the provisions down and re-built. of the Massachusetts statute. >»8 See Bulletin No. 203 (Janu- See also for recent New York ary, 1917), of the United States Statute, Laws of 1916, Chap. 622, Department of Labor; Bureau of Group 40. Entitling to corn- Labor Statistics, entitled "Work- pensation those engaged in men's Compensation Laws of "printing, engraving, photo-en- the United States and Foreign graving, stereotyping, electrotyp- Countries" for the text of all ing, lithographing, embossing, the statutes in force at the present vmnnjadure of moving piclure time. machines and films. . . ." See also: Bulletin No. 2 (Jan., '»» Tomalin v. Pearson (Eng.) 1913, p. 5), of the Massachusetts (1909), 2 K. B. 01; Schwartz v. Industrial Accident Board on India Ridjbcr (Eng.) (1912), 2 K. WORKMEN COMPENSATIOV ACTS 181 effect. It held that the employe, a citizen and resident of that state, could not claim the benefits under the statute although the employer was a Massachusetts cor- poration and the contract of hire was made in that state, the accident having occurred in the state of New York.=°o The court held that his right to recover damages was determined by the law of the state where the accident took place. The same rule has been enunciated in Michigan. -°' In New Jersey, however, the contrary conclusion was reached. -°- The court held that although the statute was not binding without the hmits of the state, yet the statute could require a contract to be made by two parties to a hiring and that such contract should have an extra- territorial effect. The court found that there was an implied contract between the parties to compensate for injuries arising out of the employment, and that such con- tract could be enforced irrespective of the place where the injury was sustained. In Ohio the same result was arrived at as in New B. 299; Hicks v. Maxlon (Eng.), laws under what circumstances 124 L. T. Rep. 135. an injury to tlie person will af- ^ Gould's Case (1913), 215 ford a cause of action.'" Mass. 480; 102 N. E. 693. "The «" Keyes v. Allerdycc, Michigan subject of personal injuries re- Industrial Accident Board, .\pril, ceived by a workman in the 1913. course of his employment is "• Deeny v. Wright d- Cobb, 36 within the control of the sovereign N. J. L. J. 121, referred to in power where the injury occurs. Bradbury on "Workmen's Com- 'It must certainly be the right pcnsation." of each state to determine by its 182 THE LAW OF MOTION PICTURES Jersey, not, however, upon the theory of an impUed con- tract, but by a construction of the statute which pro- xdded for compensation for injuries or death ''wherever occurring." -°^ In New York an action was brought by a seaman for injuries received through negUgence of his employer. ^'^'^ It appeared that the plaintiff was employed by defendant on one of its ships for a voyage from Hamburg, Germany, to New York and return. While in New York harbor the injury complained of occurred. The defendant relied upon a workmen's compensation law of Germany as a bar to the action. The court held ''a foreign law, to which both employer and employe engaged in interstate and foreign commerce and transportation, have subscribed, and upon the basis of which the contract of employment was made and entered into, where the cars or ships of the employer enter our state, and in or upon which, while within our borders an accident occurs to the employe through his employer's negligence, particularly where the contract provides for a fixed compensation in case of specified injury to take the place of a right of action at law, and which is lawful both in the place where made and that in which the cause of action arose, should obtain recognition and enforcement here." The Workmen's Compensation Commission of New «" Schmidt Case, Ohio State See also saino case on appeal from Liability lioard of Awards, July order to compel service of a reply 10, VJ\'2 (riiiim No. 0). to the defense set up in the answer, '"« Schweitzer v. Hamburg, etc., 149 A. D. (N. Y.) 900; 134 N. Y. Cesellxchnft (1012), 78 Misc. Supp. 812. (N. Y.) 448; 138 N. Y. Supp. 944. WORKMEN COMPENSATION ACTS 188 York has nilod that the operation (jf a theatre did not fall within the class of "hazardous" occupa- tions. ^"^ Under the English Compensation Act a workman employed by a lion tamer was killed, and it was held that the accident "arose out of his employment." -^ .\nd whether or not a deceased was a stage manager entrusted with important duties or whether his duties were manual was the question involved in another case.-°^ 2" Matter of Samuel Adler, Workmen's Compensation Com- mission of New York, Claim No. ry2,437. It was held that the operation of' a theatre did not fall within the class of "hazard- ous" occupations and a widow was denied corni)cnsation for the death of her husband, a property- man, who was killed by falling through a trap-door. «» Ilapelman v. Poole (Eng.) (inOS), Strong on "Dramatic and Musical Law," 3d Ed., p. 56. The Workmen's Compensation Act of 190G is here construed. A workman was employed by a lion tamer to clean out the lion cages, etc. While in charge of the cages, a lion broke loose, and in trying to get the lion hack in the cage, the lion turned on him and killed him. Held that the accident arose "out of and in the course of his employment" and decedent's per- sonal representatives were en- titled to comix-n-sation. 207 Rushbrook v. Grimsby Palace Theatre (Eng.) (1908), 25 T. L. R. 258. The question was whether a "stage manager to take charge of the electric plant and to bill" was a "workman" within the meaning of the Employers' Lia- bility Act of 1880. Held that he was. "Stage-managers in some theatres, no doubt, in- volved important duties, but that term must be considered in connection with the actual duties the deceased man was called upon to perform, and from the evidence in this case it seemeil clear that the decea.sed was really nothing more than a foreman .scene-shifter or carjx?nter earning 25s. a week; he wa.s mostly if not entirely engaged in manual la- bor." 184 THE LAW OF MOTION PICTURES Section 59. — Garnishment. The salary of the actor is subject to garnishment in such states where garnishee statutes have been enacted, the manner and procedure of the garnishment, of course, following the particular state statute. The New York statute is typical of the statutes of other states. The proceeding is regulated by Section 1391 of the Code of Civil Procedure, which provides that the Marshal or Sheriff may serve a garnishee execution upon the employer, who is then required to deduct from the actor's salary, if the same be more than twelve dollars weekly, a sum equal to ten per cent thereof, and pay it over to the levying officer; in default of so doing, he may be sued by the judgment creditor for an amount up to the amount of the judgment. It has been held in England that an actor's salary may not be attached or garnisheed until it is actually due, and only while it is unpaid. -°^ A distinction is drawn between the remedy of garnish- ment and that of proceedings supplementary to execution. Where the salary has not been wholly earned and become wholly due, the judgment creditor may only proceed by garnishee proceedings. -°^ ^^ Hall V. Pritchetl (Eng.) under execution, and that such (1877),3 Q. B, D. 215. fund may be seized whecever 2«« Hayward v. Ilayward (1917), found. But this is no such case. 178 A. D. (N. Y.) 92. "It is When the execution was issued quite true that a fund represent- there was no fund holoiising to ing a salary earned, whether in the defendant representing salary the pos.scssion of the employer, earned in the hands of the Pal- or of the employe, or of a third ace Operating Cori)()rati()n (em- person, i.s not exempt from levy, ploycr). The salary was not SERIAL STORIES 185 Section 60. — Serial stories. In the production of the serial picture an interesting question arises. For this kind of a picture the actor employed is usually one of considerable fame and popu- larity, and consetjuently is able to dictate, to a great extent, the terms of his contract. He usually demands that each installment of the serial picture shall be ap- proved by him and so marked before its release, and the contract provides therefor. Suppose the artist arbitrarily and in bad faith refuses to a])])rove of an installment of the picture? The producer has invested his money, and is seemingly at the mercy of the artist who, perhaps already contracting with another producer, finds it to his interest to impede and delay the release of the installment. In such case, the producer is at liberty to disregard that covenant in the contract, and proceed with the release of the installment without obtain- ing the actor's approval. On the other hand, where the actor is actuated by proper motives and there is no element of fraud or bad faith involved, the producer is at his mercy, and may not release the film without the apj^roval of the actor, no matter how whimsical and arbitrary the latter may be. In some respects, a contract containing a clause of this kind is very similar to a contract where the services to only not due :it that time but Code. Upon tlie return of the was «)nly i)arti:illy earned. There execution unsatisfied, an order is only one way provided by may be ol)tained garnishing a statute for reacliing an accruing percentage of salary due or to salary, and that is the means pro- become due." vided in Section 13'Jl of the 186 THE LAW OF MOTION PICTURES be performed are to be ''satisfactory" to the employer. Complete satisfaction with all the work is in each instance made a condition precedent. ^^^ Section 61. — Escrow agents. A number of artists who are sought after a great deal by producers, have devised a rather unique method of insuring payment of the salaries agreed to be paid to them under their contract. A bank or trust company is made escrow agent. The motion picture producer deposits with the escrow agent a sum equal to the total amount agreed to be paid the artist, and the bank or trust company is dkected to make payments to the artist at stated periods. The artist is thus assured his salary if he lives up to the terms of his agreement, regardless of changes in the fi- nancial condition of the producer. The contract usually provides as well that in the event of bankruptcy, the impaid balance shall become due and payable at once to the artist. On the other hand, the producer is protected by a pro- vision to the effect that in the event the artist breaches his contract, he may give notice to the escrow agent who is then required to withhold payments to the artist until arbitrators provided for under the contract render their decision. The escrow agent is made a party to the agreement. Its duty ends if it complies with the terms of the agree- ment. Tf it arl)itnirily assumes to act on its own initiative and disregards the express terms of the contract, it be- »"> Sec Section 38. WHEN JOINT VEXTTTRE 187 comes \vd\)\v to the injurctl i)urty for wliutcvcr damages he has sustained thereby. Section 62. — When joint venture. The fact that an actor and a manager agree to share the receipts of a play does not necessarily stamp the transaction as a joint venture. An agreement to share in the losses is the true test of a joint venture.-" 2" Thomas v. Springer (1909), 134 A. D. (N. Y.) 640; 119 N. Y. Supp. 460. An agreement be- tween a manager of a tlieatrical company and a theatre owner whereby the latter is to receive a percentage of the gross receipts, the proprietor of the theatre to furnish tlie scenery, equipment and regular employes of the theatre, does not create a partner- ship. The parties are inde- pciulent contractors. Unless there be an agreement to share profits and losses there is no co- partnership. Keith V. Kellerman (1909), 169 Fed. (C. C.) 196. Tlie agree- ment between the parties pro- vided tliat defendant was to render her specialty as actress, in consideration of fifty per cent of the profits. It was held tliat the contract was not one of co- partnership but one of employ- ment; the test being "whether the parties are jointly interested as principals and may bind each other by their acts or engage- ments within the scope of the cntcrpri.se." Mallory v. Mackaye (1899), 92 Fed. (C. C. A.) 749. Plantiff, a theatrical manager, contracted with defendant, an actor, wliereby defendant agreed to render his exclusive services to plaintifT as an actor, author, director and inventor, all of his creations to l)ec()ine the property of the plain- tilT in consideration for all of which plaintifT bound himself to pay defendant a specified sum per annum ami in addition thereto a |)orti()n of the profits. The relationship existing between tliem was held to be that of em- |)l()yer anil employe and not that of joint ventures. See also: Mayer v. Xelhersole (1902), 71 A. D. (N. Y.) 383; 75 N. Y. Supp. 987; Goldberg v. 188 THE LAW OF MOTION PICTURES Where the relationship is that of employer and employe the remedy for a breach is an action at law in damages. -^^ But where the contract provided that defendant furnish the building and pay certain of its expenses, and the plaintiff was to give his time and skill in carrying on a theatre therein and act as manager thereof, the defendant to receive a fixed sum as rent, and in addition thereto one-half of the net profits, losses to be borne equally by the parties, this was held to create a partnership, and it made no difference that the parties referred to themselves throughout as lessor and lessee.^^^ Popular Pictures Corp. (1917), N. Y. Law Journal, Jan. 20. The appeal taken in the action and reported in (1917), 178 A. D. (N. Y.) 86, was not from the order made in pursuance of the motion above reported. "2 McLellan v. Goodwin (1899) , 43 A. D. (N. Y.) 148; 59 N. Y. Supp. 290. Plaintiff, a theatrical manager, agreed to conduct a tour of the defendant, an actor. Defendant was to receive 50% of the receipts and was to pay his company of players and for cos- tumes out of such moneys. Plain- tiff agreed to pay other expenses out of his share of the receipts. Plaintiff did not conduct a tour for defendant and defendant earned moneys by employment elsewhere. The action was brought for an accounting of moneys earned by defendant. Held plaintiff was not in any event entitled to share in earn- ings of defendant as such earn- ings were not received by de- fendant from a tour conducted by plaintiff; that plaintiff's rem- edy, if at all, was one at law for damages for breach of contract. 2" Leavitt v. Windsor Land & Investment Co. (1893), 54 Fed. (C. C. A.) 439. See also: Cole v. Rome Savings Bank (1916), 96 Misc. (N. Y.) 188; 161 N. Y. Supp. 15. De- fendant Rome Savings Bank made an agreement with one Edwards whereby R. gave the use of a theatre which it owned for one year upon the following conditions: E. agreed to deduct from tlie gross receipts a specified sum to WHEN JOINT VENTURE 189 Where a joint venture or copartnership is created for the exploitation of literary works, the loss of prestige in the business of one ot the partners is a vahd cause, it would seem, for a dissolution.-" The joint venturers are bound to use the utmost of good faith toward each other. -''^ be applied to his own uses and from the balance pay for insur- ance, taxes, cost of theatre license, advertising, labor employed and other incidental expenses neces- sary to the operation of the theatre and pay to R. a specified sum per year and at the end of the year pay to R. one-half of the surplus profits. If upon the termination of the lease the net receipts proved insufficient to make the above payments then the entire net receipts were to be paid to R., less a specified sum per month to be retained by E. Held not to create a co-partner- ship. See also: Atchison-Ely v. T/(omrt.s (1905), 104 A. D. (N. Y.) 3GS;03N. Y. Supp. 093. 2'« Waite V. Aborn (1901), 60 A. D. (N. Y.) 521; 69 N. Y. Supp. 967. Plaintiff and de- feiulant entered into a copartner- ship for a specified period to con- duct the business of "making productions of operas, extrava- ganzas and for general amuse- ment purposes." Plaintiff was to have charge of the business of the enterprise and defendant of the artistic branch. Ildd that a complaint asking for a dissolu- tion of the partnership because the carrj'ing on of the business had become impracticaljle on account of the bad reputation acquired by defendant in the theatrical world and that its continuance could not be ef- fected .save with loss, stated a cause of action. ^1* Selwyn cfc Co. v. Waller et ano. (1914), 212 N. Y. 507; 106 X. E. 321. Under an« agreement for the production of a play and the sharing of profits and losses in- cluding the payment of royalties to the autliors, one of the jxirties to the enterprise was held bound to disclose to his associate the fact that he had previously ac- quired from the authors a one- fourth interest in such royalties. Parties about to engage in a joint venture whether as partners inter sese or not owe to each 190 THE LAW OF MOTION PICTURES Section 63. — Royalties in addition to salary. Contracts of employment occasionally provide for com- pensation of the actor who poses for motion picture com- panies by salary and royalties based upon the earnings of the picture.^^^ If the contract is silent as to the period during which such royalties are to be paid, the actor is nevertheless en- titled to them even where his contract of employment has expired by Umitation; and his right to such royalties con- tinues as long as the picture is exploited. He may not, however, compel the producer to exhibit the film in which he has posed. A failure to exploit the picture merely relegates the actor to his remedy at law for damages for the breach, with the difficulty of estab- lishing some basis upon which damages may be awarded. ^^^ Section 64. — Law governing validity of contract. Where a contract is made in a foreign jurisdiction, but is to be wholly performed within the United States, the interpretation and validity of the contract will generally be subject td review by the American courts. And the courts will not be ousted of jurisdiction by the contract of the parties between themselves. ^^^ other the utmost good faith and (N. Y.) 260, containing a valu- the most scrupulous honesty. able discussion of the method by 2'" Drc.s.s7er v. Keijslone Film which future i)rofits may be esti- Co. (1915), N. Y. Law Journal, mated as to motion pictures. Aug. 5th. For additional cases, see Sec- ^^'' Benyaknr v. Schcrz (1905), tion 49. 103 A. D. (N. Y.) 192. See also: ='^ Eiigd v. .S7/ (//;(•// (1915), KiO Levison v. Oes (1917), 98 Misc. Ai)p. Div. (N. Y.) 394; 151 N. Y. CONTRACT LABOR AND EXCLUSION LAWS I'Jl In general, the contract niubt be valid in the place of its performance. ^\^lere a booking agency conducting a business from its head(iuarters in Chicago, had contracted to provide troupes for theatres in Tennessee, it was held that since it had not complied with the laws of that state, it could not recover, as performance was held to be within that state.-'' Section 65. — Contract labor and exclusion laws. Under the Federal statutes a contract made with an alien to jDerform labor or services within the United States or its territories previous to the immigration or unporta- tion of such person into the United States is void, and any person, firm or corporation which assists or encourages such inmiigration or importation is guilty of a crime and is subject to heavy penalties. "° Supp. 593. The contract between Co. (1914), 211 X. Y. 346; 105 the parties i)rovicle(I that: "In N. E. 653; Lorenz v. Bartuschck, ca.so of a dispute, both contract- City Court of X. Y., Xo. 116. ing parties agree to submit to Judgment Roll filed May 18, 1916. the jurLsdiction of the Vienna ^^'^ Albert v. Interstate Amuse- courts." rnerU Co. (1913), 161 S. W. IIvl'l that such provision was (Tenn.) 488. not exclusive, and that the courts Oti the question whether a phrase would not look with favor upon of limitation relates to all the pre- atteinpts to oust them of juris- ceding terms or modifies the term diction. immediately preceding such phrase "It is entirely plain that such sec: Ilodkin^ v. McDonald (1907), agreements should be strictly 123 Mo. App. 566; 100 8. W. 50S; construed and should not be State v. Scaffer (1905), 95 Minn, extended by implication." 31 1; 104 X. W. 139. Mcac/iem v. Jamestown li. IL --" Compiled Statutes of the 192 THE LAW OF MOTION PICTURES These statutes, however, have been strictly construed and it has been held that only manual unskilled laborers are intended to come within the prohibition,--^ and the making of contracts with actors, directors or skilled me- chanics would not be a violation of the statute. ^-^ Nor would a Chinese actor be excluded, since he has been held to be no "laborer" under the exclusion laws.^^^ Section 66. — Performance in unlicensed theatre. An actor who performs in an unHcensed theatre is estopped from recovering for his services, and the owner of such theatre is likewise powerless to enforce a contract to which he is a party. ^^^ United States (pub. 1913), Sec- tions 4245, 4246, 4248, 4250, 4251. "1 United States v. Gay (1899), 95 Fed. (C. C. A.) 226. 222 United States v. Thompson (1889), 41 Fed. (C. C.) 28; United States V. Edgar (1891), 45 Fed. (C. C.) 44; aff'd 48 Fed. (C. C. A.) 91. 223 /2e Ho King (1883), 14 Fed. (C. C.) 724. The relator, Ho King, wa.s a Chinese actor. Land- ing at Portland, he was detained under the Exclusion Law. A writ of habeas corpus issued, and it was held that an actor or theatri- cal performer was not a "la- borer" under that Act, and that he could come and go at ple;isure. "*Levy V. Yates (Eng.) (1838), 8 Ad. & El. 129; 35 E. C. L. 352. Where the owner of a theatre has not obtained a license as required by law, a contract made between himself and a theatrical company through a booking agency can-: not be enforced. De Begnis v. Armistead (Eng.) (1833), 25 E. C. L. 47; 10 Bing. 107. The contract of a theatre owner was held unenforceable because of his failure to comply with the law. As to what constitutes an illegal contract for performance at a theatre. See also: Eiving v. Os- baldiston (Eng.) (1837), 2 My. & C-r. 53; Gallini v. Lfdnnie (Eng.) (1793), 5 Term Rep. 212; (hay v. The Oxford (iMig.) (1905), 21 CONTRACTS FOR TRANSPORTATION — DAMAGES 193 But the actor who so performs must have actual notice of the fact that his perfonnance is unlicensed. The dis- tinction is made between ignorance of the law and ig- norance of a fact; and the want of notice on the actor's part in this ease would be ignorance of a fact only, and would not bar a recovery.--^ From the foregoing it may be concluded that a dis- triliutor, who has contracted for film rental with an ex- hibitor who has failed to secure the proper license from the authorities, may recover damages for the breach, pro- viding he is unaware of the exhibitor's derelictions. In deahng with the exhibitor he is not bound to make any special inquiries, as he may be permitted to assume that the theatre is Ucensed. That presumption exists in law."« Section 67. — Contracts for transportation — damages. When a common carrier undertakes the transportation T. L. II. 664; aflf'd 22 T. L. R. that the performance was un- 684; Scott v. McSaughlon (Eug.) licensed he was entitled to re- (I90S), Times, Nov. 25th. cover, and defendants would not "'• Roys y. Johnson ct al. (l8oQ), be ix-nnitted to sustain such 7 (iray (Ma.ss.), 162. The actor defense, having themselves been rendered his services and brought guilty of the unlawful act. this action to secure comi>en.si- --'^ Roihcdl v. Rcdge (Eng.), 1 tion therefor. Defendants set up C. & P. 220; 11 E. C. L. 374. The the fact that the plaintiff acted action was brought against an in an unlicensed theatrical exhi- actor for breach of contract for bition and not entitled to com- failure to appear. Held that pensation as the giving of an there was a presumption that unlicen.sed theatrical {>erformance the theatre was licensetl from was unlaN^'ful. Ihhl that so the fact that jx'rformances had long as plaintiff did not know been going on uninterruptedly. 194 THE LAW OF MOTION PICTURES of an actor and his scenery, the carrier is not prima facie charged with any unusual degree of responsibility. To hold the company liable for neglect or delay, it must be established that a contract existed by which the company was fully apprised of all the facts in order that it may be said that the loss of profits of the actor was within its contemplation. Such a contract is not proven merely by showing that the actor bought a ticket; more than that is required. 2-^ But where such a contract is proven, it becomes im- portant to determine whether the actor may prove and recover damages including the profits he might have made had he been able to perform. In New York the rule seems to be that such damages are not incidental to and proximate to the injury, and may not be proven.--^ 227 Southern Ry. v, Myers (1898), raony in reference to the specula- 87 Fed. (C. C. A.) 149. An ac- tive profits which the passenger tor was injured by the over- might have made if he had been turning of a sleeping-car. "In safely carried through on schedule the absence of a definite contract time." for carriage to a given point by ^"^ Brown v. Weir (1904), 95 a given time, with such reasons A. D. (N. Y.) 78; 88 N. Y. Supp. for its making as would naturally 479. Plaintiff, an actress, dehv- lead the agent of the carrier to ored a trunk containing all of her contcnii)Iate the profits the pas- theatrical costumes to the Atlains senger expected to realize, it is I'Apress Co. for transmission. clear that the damage claimed The trunk was not delivered for for the failure to realize such a period of ten days because of profits is too un(;ertain and re- dispute as to charges, the com- mote, and that, until competent pany having demanded an im- proof tending to show such con- proper amount. Held that plain- tract was offered and admitted, tilT could not recover as damages, it wa.s error to admit any testi- lo.ss of earnings during the period, POWER OF company's OFFICER TO CONTRACT 195 But ill Illinois the courts have held otherwise; -^ and the rule in that jurisdiction seems to be in accord with the dicta of the Federal court in Southern Railway v. Myers. Section 68. — Power of company's officer to contract — agency. A contract of employment with an actress has been held valid when signed by the president and general manager of the company. '-^° So too, where the director-general of a traveling show extends a contract for an additional season.-'^ first, because she failed to make rea.sonable exertions to make tlie injury as light as possible, and secondly because damage for breach of contract was only that whicii was incidental to and was directly, caused by the breach, antl might reasonably be pre- sumeil to have entered into the contemi)lation of the parties. "'Illinois CetUral v. Byrne (1903), 205 111. 9; 68 X. E. 720. Suit to recover damages for failure to haul car loaded with scenery and theatrical property. It was claimed that by reason of such failure appellee mis.scd an engngcnuMit whicli hail been ad- vertised and for which tickets had been sold. Held that it was proper for the jury to consider the nature of the plaintilT's business and his profits for a reasonable period next preceding the time when the contract was violated. ■^"King v. [Vill. J. Block Am. Co. (1908), 115 N..Y. Supp. 243; aff'd 132 A. D. (X. Y.) 925; 116 X. Y. Supp. 1139. It is within the implied powers of the presi- dent and general manager of the defendant to bind the defendant in the employment of an actress. -" Kddi/ V. America 71 Amuse- ment Co. (1913), 132 Pac. (Cal.) 8.3. .\ person, having charge generally of the defendant's trav- eling show having the title of director general and having the authority, when authorizeti in writing by the general manager of the defendant to emplDy and discharge artists and who em- ployed plaintifT for one .-reason may bind the defendant in ex- 196 THE LAW OF MOTION PICTURES But it has been held that the president of a theatrical company could not appoint a general business manager without the consent of the directors, and that the business manager did not have the inherent power to engage performers for a year.-^- A booking-agent may contract within his apparent authority, and secret instructions are not binding upon third parties with whom he contracts.-''^ And a contract signed by a manager will make him personally liable if there is nothing in the body of the contract to indicate that the contract is made with his principal.-^* tending the employment agree- ment for an additional season. See in this connection: Arm- strong V. Majestic Motion Picture Co. (1914), 87 Misc. (N. Y.) 141; 149 N. Y. Supp. 1039. ^^' Vogel V. *S^. Louis Museum (1880),8Mo. App. 587. "3 Interstate Ajnusemcnt Co. v. Albert (1913), 161 S. W. (Tcnn.) 488. Held that plaintifY, who operated a booking-agency in Chicago was the agont of the de- fendants, who operated a theatre in Tennessee. Bergere v. Parker (1914), 170 S. W. (Texas) 80S. Held that where a person was held out as defendant's hooking ag(!nt, pri- vate instructions to such agent were not binding upon parties who without knowledge of such instructions contracted with de- fendant through the agent and that his acts were within his ap- parent authority. ""Crau V. McVicker (1874), 8 Biss. 7; 10 Fed. Cas. No. 5,708. The lessee of a theatre was de- scribed as "M. G., representing Messrs. C. A. C. & Co., manager of the A. 0. B. Co.," and the contract stated that he, Grau, was to have the i)rivilege of giv- ing a certain number of per- formances. One of the clauses provided: "The said Maurice Grau, in consideration of the above, agrees to pay to the said McVicker." Held that M. G. was liable^ as principal and that the words added to his name were merely words of description. B. F. Siurlevanl Co. v. Fireproof COSTUMES 197 Where the phiintifT had contracted as "The Redpath Lyceum Bureau" but brought suit in the name of Geo. H. Hathaway, the real party in interest, it was held that he could pr()])(>rly do so.-^^ Section 69. — Costumes. While stock costumes for the company are usually rented, in more elaborate productions of ])lays and motion Film Co. (1915), 216 N. Y. 199; 110 N. E. 440. "When an offer, proposal or contract is expressed in dear and explicit terms, mat- ter printed in small type at the top or bottom of the office sta- tionery of the writer where it is not easily seen, which is not in the body of the instrument or referred to therein, is not neces- sarily to be considered a part of such offer, proposal or con- tract." Cobb V. Knapp (1877), 71 N. Y. 348. "There is no hardship in the rule of liability against agents. They always have it in their own power to relieve themselves, and when they do not, it must be presumed that they intend to be lial)le." Meyer v. Redmiutd (1912), 205 N. Y. 478; 98 N. E. 906. De- fendants were auctioneers, acting ami presumably known to be ueting as agents. Vet the court held that: "Even where he di.s- closes the name of his principal, if he (the agent) signs a written contract in his own name merely, which contract does not show upon its face that he was acting as the agent of another, or in an official capacity in behalf of the Government, he will be per- sonally bound thereby." ^^^ Hathaway v. Sabin (1889), 61 Vt. 60S; 18 Atl. 188. See also: Stuart v. Smith (1895), 68 Fed. (C. C.) 189. Where an officer of a corporation was held not liable for the acts of the cor- porati«jn when done without his consent; and McDonald v. Hearst (1899), 95 Fed. (C. C.) 656. On the question whether the pro- prietor of a theatre is liable for the act of his manager in refimng to permit an officer to enter the theatre to serve legal process upon an actor see: Paulton v. Keith (1901), 23 R. I. 164; 49 Atl. 635. 198 THE LAW OF MOTION PICTURES pictures, these costumes must be made up specially. It is the custom to have plates prepared by the designer of the costumes, and these plates are furnished to the cos- tumer. In a case where the costumer, an Enghsh resident, had himself prepared and designed the plates for costumes to be used in the defendant's production, it was held that he had fully performed, and judgment in his favor was sustauied.-^^ Section 70. — Enticement of actor. Because of the great competition existing between producers to secure the services in the making of motion pictures of actors and actresses of established reputation, one motion picture producer frequently will attempt to secure the services of an actor who has contracted to per- form vdih his competitor. It is important for him to know how far he may go in inducing the artist to leave his competitor's employ without committing an actionable wrong. His competitor may have expended large sums of money and assumed obUgations in reUance upon liis contract with the actor. It has been generally held in this country that where the breach is induced solely by argument and persuasion and no false representation is made, the producer whose contract has been breached, has no remedy against his 2" Anderson v. Lang (1914), 56 former w:i.s coniinissioned to draw Pa. Sup. Ct. 183. Phiintiff wa,s u |)hites for designs of costumes, dosij^nor of theatrical costumes Held that lie liad fully performed and defendant a playwright. The and was entitled to recover. ENTICEMENT OF ACTOR ]\i\) competitor. He is left to liis remedy against the actor for damages for the breach of the contract. If the actor, however, has been induced to breach liis contract by false representations, by fraud or by force or coercion, the competitor has committed a wrong for which he is accountal)lc to the producer. The motive of the person enticing tlie servant away is inmiaterial. The law is stated in a recent case as follows: "The gist of the WTong lies in overpowering or circum- venting the freedom of will and the intent of the one obligated to perform as distinguished from procuring him by fair means to elect not to perform." The wronged party may in any case where the contract has been breached by false representations, fraud, force or coercion, maintain an action at law against the \\Tong- doer for his damages. Wliere the services of the artist are unique and extraor- dinary and the producer's damages irrcparal)le the courts have gone one step fm-tlier and permitted liim to go into equity to enjoin, not only the actor, but the wrongdoer as well and jirevent such wTongdoer from availing himself of the services of the actor. It seems that there are only three cases reported in this country where one, contracting with an actor, has brought an action against a thu'd party for entice- ment. One action was brought at law. The defendant induced an actor who had contracted to perform at plaintiff's theatre to breach the contract and to perform at defend- ant's theatre upon the days he had agreed to act at plaintifT's theatre. The court held that the motives of 200 THE LAW OF MOTION PICTURES defendant in inducing the actor to breach his contract were immaterial so long as the means used by him in inducing the breach were legal, and plaintiff had no cause of action against defendant. -^^ The other two actions were brought in equity. In Jesse L. Lasky Feature Play Co. v. Fox the complaint alleged that plaintiffs had made a contract with an actress of unique and extraordinary ability whereby she had agreed to pose for plaintiffs in the making of motion pictures for a specified period; that defendant by making false representations had induced her to breach the con- tract; that the false representations consisted of state- ments to her that the contract between plaintiffs and her was void, that plaintiffs had no intention of furnishing her with employment as provided for in the contract, that plaintiffs had violated the agreement in failing to make the necessary preparations for posing and that she was under no obligation to perform the agreement. The contract contained a negative covenant. The defendant, who was a business rival of plaintiffs, had caused the actress to pose for a motion picture subsequent to the making of the above mentioned agreement and prior to its termination; and the relief asked for was, among other things, f(^r an injunction restraining defendant from ex- hibiting the photo-play for which the actress had posed. 2" Bourlier Bros. v. Macauley involves legal recognition of per- (1891), 91 Ky. 135; 15 S. W. 60. sonal doiiiitiiun, bordering on "... For, to enforce u doctrine pure servitqde, wliicli is neitlier making the hirer respf)nsible for in harmony witli our form of breach by the person hired of a government nor well for those previou.s contract witli another who labor for .subsistence. ..." ENTICEMENT OF ACTOR 201 The dcfondant's demurrer to the bill of complaint was overruled.'-*'* The latest decision is that of Triangle Film Corporation V. Artcraft Piclurcs Corporation wherein plaintiff sought to enjoin the defendant from employing one Hart as one of its motion ])icture actors. Hart had entered into a contract with the plaintiff in which he agreed to render to it his exclusive ser\'ices as a motion jiicture actor for a number of years. The con- tract provided that one Ince was to supervise all the productions made with the participation of Hart. It appeared that Ince had left plaintiff's employ and at the time of the commencement of this action was associated with the defendant. Hart refused to remain in plaintiff's employ after the withdrawal of Ince and had accepted employment from the defendant. The theory of the action was that the defendant had combined with Ince to induce Hart to leave plaintiff's emi)loy by means of false representations, and to enter into its own employ. Judge Manton denied the application for an mjunction pendente lite upon the ground that Hart was not obligated to perform under his contract since the condition of his employment was that Ince should act as director-general "8 Jcs.se L. Lasky Feature Play in the case of other contracts the V. Fox (191G), 9.3 Misc. (X. Y.) i)!irties to which have assumed 364; 157 N. Y. Supp. KX). "In mutual obhgations. For induc- this jurisdiction interference by ing the termination or other a stranger with a contract of breach of such a contract a service by any cla.ss of employes third party is liable only when gives rise only to such romcdii^s he has been guilty of unlawful as exist under Uke circumstances means." 202 THE LAW OF MOTION PICTURES of all pictures to be made with his participation; and that since no action could be maintained against Hart, none could be maintained against the defendant. -^^ Section 71. — Libel of actor. Members of the theatrical profession will be permitted to maintain actions for libel where the criticisms of their performances are instigated through mahce, or where the critic in his zeal has made statements which are untrue. Where statements were made concerning a public singer that he falsely claimed to be the owner of certain songs, and that he procured the giving of applause, the court held the defendant guilty of a libel. -^^ 2" Triangle Film Corp. v. Art- crafl (1917), D. C. U. S., S. D., N. Y., July 31st. " If Hart could not be held for breach of contract, how can this defendant be held for inducing Hart to break his contract?" For the first English case on this subject where the services of an actor were involved, see: Lumley V. Gye (Eng.) (1853), 2 E. & B. 216. See also: Allen v. Flood (Eng.), 67 L. J. Q. B. 112. And for more recent miscel- laneous ca,ses in enticement, sec: Rogers v. Evarts (I89I), 17 N. Y. Supp. 261; Johnston Harvester Co. V. Mcinhnrdt flSSO), Abb. Ca.ses, 393; IhJontf v. Behrman (1911), 148 A. D. (N. Y.) 37; 131 N. Y. Supp. 1083; I'osner Co. V. Jackson (1915), 166 A. D. (N. Y.) 920; 152 N. Y.* Supp. 1105; Angle v. Chicago & St. Paul Rij. Co. (1893), 151 U. S. 1; U Sup. Ct. 210; Dr. Miles Medical Co. V. Park & Sons (1911), 220 U. S. 373; 31 Sup. Ct. 370. For some of the earlier entice- ment cases not involving the ser- vices of an actor see: Benton v. Pratt (1829), 2 Wend. {N. Y.) 3S6; Walker v. Crown (1871), 107 Mass. 555; Ashley v. Dixon (1872), 48 N. Y. 430; Boston Glass Mfg. v. B i nncy - ilS27), 4 Pick. (Mass.) 425; Ncioman v. Zacharij (Eiit!;.) (H)4(»), Aleyn, 3; Hart V. Aldridge (Eng.) (1774), Cowp. 54; Gunter v. Astor (Eng.) (181 9), 4. J. n. Moore, 12. *'" Dibdin v. 'Swan (Eng.) LIBEL OF ACTOR 203 In another case \vlieie the performances of a troupe of j)ul)Hc performers were referred to as being coarse, farcical, wholly without merit and ridiculous, it was held that unless malice was estal)lishcd there could be no recovery.-^' A reference to the manners of an actor as "ungentlemanly and discourteous" was however held actionable. -'- As the reputation of an actor is (l(>pendent to a groat extent upon the nature of the pul)licity given to him, improper forms of advertisement or type will sustain a cause of action for libel. Thus where a high class actor's name was billed in very small type whereas he was ac- customed to having it starred, the courts permitted a (1793), 1 Esp. 28. "The editor of a newspaper may fairly and candidly comment on any place or species of public entertain- ment; but it must be done fairly and without malice or view to injure or prejudice the proprietor in tlie eyes of the public. If so done, liowever severe the censure, the justice of it screens tlie ochtor from legal animadversion; but if it can be proved that the comment is malevolent, or ex- ceeding the bounils of fair opinion then such is a libel and therefore actionable," To the same effect: Hart v. Wall (Eng.) (1S77), 25 W. H. 373. 8ee also: (irccn v. Chapman (Kng.) (1837), 4 Bing. N. C. 92; Morrison v. Iklchcr (Eng.), 3 F. & V. (ill. ■*^ Cherry ct al. v. Des Moines Leader (1901), 114 Iowa, 298; 86 N. W. 323. McQuire v. Western Xews (Eng.) (1903), 88 L. T. 7.57. Re- ferring to certain songs delivered during the performance of a play and to certain dancing therein a.s "vulgar" was not lield to be lil)elous. See also: Thomas v. Bradbury (Eng.) (190C), 95 L. T. 23; Unwin v. Clarke (Eng.) (190S), Times, March 31 ; Murray V. Walter (Eng.) (1908), Times. May 6, 7, 8, 9. See also: Wood v. Sandow (Eng.) (1914),Times,June2G, 30. The pulilication of an actor's picture in connection with an advertisement is not ijjso facto libelous. "' Williams v. Davenport 204 THE LAW OF MOTION PICTURES recovery; ^^s and where the singer's name was placed third on the Ust of concert singers printed on the handbills and advertising, the court held that that was calculated to injure the plaintiff's reputation and constituted a Hbel.^'*^ On the other hand, to accuse an actress of being in the company of a man late at night and being mixed up in a quarrel was held not libelous in the absence of special damage. -^^ (1890), 42 Minn. 393; 44 N. W. Renard v. Carl Rosa Opera Co. 311. (Eng.) (1906), Times, Feb. 15; ^''Elen V. London Music Hall Wade v. Waldon (Eng.) (1909), (Eng.) (1906), Times, May 31, S. C. 571. June 1. ^^^ Gerald v. Inter Ocean Pub. ^'* Russell V. Notcutt (Eng.) Co. (1899), 90 111. App. 205. (1896), 12 T. L. R. 195. See also: CHAPTER IV THE PRODUCER (CONTINUED) His Other Employes Sec. 72. Scenario writer. 73. Director and other employes. Section 72. — Scenario writer. Tlic professional scenario writer is a new figure; he is unique to the motion picture industry, and it is rather difficult to define with any reasonable degree of accuracy the pecuUar rights and liabilities involved between him- self, his employers and third persons. We have discussed in a previous chapter the scenario writer who is employed to write original motion pictures, and the author who writes original scenarios and sends them in for sale, confining ourselves principally to the rights retained or transfernnl in the scenario.^ But it is becoming customary for th(^ film producers to employ scenario writers whose princijial function it is to adapt novels, plays and other works which have come into their control for representation in motion pictures. Such a scenario writer has no independent rights in the scenario, as such, nor does he secure copyright in the motion picture reproduced from that scenario. He is ' See Section 4. 205 206 THE LAW OF MOTION PICTURES acting as an intermediary only, and while he creates something, that which he creates belongs to his employer and not to him. The above is subject to one exception, however, for should the film producer multiply the scenario in copies for sale, and should he, in the process mutilate it to any appreciable extent, the scenario writer would undoubtedly have the right to seek redress, as this would be an invasion of his common-law rights, which he has not lost.- Also, where he has so contracted, he may enforce the display of his name upon the picture and billing matter.^ It must be remembered, however, that his common-law rights are limited to the scenario alone. It frequently happens that a scenario writer goes out of his way to plagiarize from another w8rk or picture, to libel another, to invade a private right or to write that which is obscene or indecent. In such case the rule of respondeat superior apphes. Many scenario writers have adopted the system of doing independent work for one or several companies. They are usually given a novel or play and told to turn it into a scenario. Where the contract provides that no compensation is to be paid for the scenario until the picture is actually produced, the scenario writer may not recover until there is an actual reproduction, nor may he compel such a reproduction. In Canada, it was held in Moraiig v. LcSucur that an author who sold his manuscript to the publisher without * See Section 12. August 2r)th, I\IiilI:in, J. Sec ox- ' lircnnan v. Fox Film dorp. corpt from opinion under Section (1010), N. Y. Law Journal, 73. SCENARIO WRITER 207 any reservation as to publication, could tender back the advance royalties, where the publisher failed to publish the work, and compel a re-assignment of the same. In that case, however, the author, under the contract, was to receive his remuneration in royalties based only upon the actual retail sale of the work, and this was an element that carried great weight with the court in arriving at its conclusion. The bench was divided, three to two, and Judge .Viiglin in an elaborate dissenting opinion expressed the sounder doctrine that, unless the contract especially so provided, the publisher was under no obhgation to risk his money in producing the work; and while it is true that an author sells his work with an eye to the enhancement of his reputation and fame which publication would bring about, he ought to expressly contract for the pubUcation of it, if he thinks enough of himself and his work.' It would follow that where a scenario writer sells liis scenario to the motion picture producer, the latter is *Morang & Co. v. Le Siicur fendant a part in any play, but (1911), 45 Canadian Sup. Ct. 9."). paid him the stipuhUcd salan-. See excerpt from dissenting opin- The defendant becoming tired ion quoted in Section 28. of liis inactivity obtained em- See in this connection: Fcchtcr ployment at a rival theatre. In an V. Montgomery (Eng.) (1863), 33 action for an injunction plaintiff Beav. 22, wliere an actor was was defeated, the court hokling engaged for a specified period, that one of the objects of the the performances of tlie artist to contract was to enable the de- commence several weeks after fendant to appear in public; the making of the contract. that the actor was paid not in When the time for the j)erfonn- terms of money alone but in op- ance of the contract aniveil, the portunity to apjx'ar in public, and manager refused to give the de- to acquire reputation and fame. 208 THE LAW OF MOTION PICTURES under no obligation to make a production of the picture, unless the contract especially covenants him to do so. If the acceptance of the work is contingent upon the satisfaction of the producer, the latter may reject the scenario for any cause he sees fit.^ Where the scenario writer leaves the employ of his company, he may subsequently make use of any and all ideas which he may have acquired in the course of his employment. He may even go to the same sources for information and ideas which he had made use of while so employed, and he may later develop them in any way that he sees fit — provided that such sources are not the property of his former employers.^ But where the scenario writer has reduced to wTiting while in such employment, any ideas whatsoever, whether the material has been developed in the form of scenario or not, such WTitings, whether complete or in unfinished narrative form, are the absolute property of liis former employers.'' The writer is engaged specifically to write this kind of material, and it is well settled that as soon as the material ^Glenny v. Lacy (1888), 1 For additional cases, see Sec- N. Y. Supp. 513; Crawford v. tions 16 and 38. Mail & Express Pub. Co. {1900), <> Peters v. Borst (1889), 9 163 N. Y. 404; 57 N. E. 616; N. Y. Supp. 789; reversed 142 Peverly v. Poole (1887), 19 Abb. N. Y. 62; .36 N. E. 814; upon N. Cas. (N. Y.) 271; Kendall v. another ground: Colliery En- West (1902), 196 111. 221; 63 gineer Co. v. United Corresp. N. E. 683;. Saxc v.. S/!?i6cr/ (1908), Schools (1899), 94 Fed. (C. C.) 57 Misc. (N. Y.) 620; 108 N. Y. 152. Supp. 683; Weaver v. Klaw (1891), ' T. H. Harms v. Stern (1915), 16 N. Y. Supp. 931. 222 Fed. (D. C.) 581. DIRECTOR AND OTHER EMPLOYES 209 comes into cxistenco, and takes concrete, tan^i'^le form, it becomes the property of the one who lias paid him for such work. If be attempts to use the sanie tliereafter, he is as nmch of an infringer as a stranger, and he may be restrained and punished.** Section 73. — Director and other employes. Directors, camera men and other employes of film companies are amenable to the general rules governing master and servant. Directors in particular have been recognized, like competent actors, as being artists pos- sessing in greater or lesser degree the attributes of skill, taste and judgment, and as such their rights and duties must be defined in accordance with the rules heretofore set out for special, unique and extraordinary employes. For example, a skillful director who has contracted for a definite period for his services, jiiay not arbitrarily breach his contract; if he does so, he may be restrained. He is, for many purposes, the agent of the company. Where he supervises or directs the production of a libelous picture he becomes personally liable as a joint tort feasor with his employer.^ Even though the motion picture producer has no actual knowledge of the libel, his failure to control his agent would be eciuivalent to such dis- regard of the rights of others as to amount to intentional « See Section 8. Weil v. Xcrin, 1 Pa. Sup. Ct. ^ Spooner v. Daniels (1854), 22 Cixa. 03; Kcyzor v. Nacman (Eng.), Fed. Cas. (C. C.) No. 13,214a; 1 F. & F. 559; Mecabe v. Jones Walts V. Fraser (Eng.) (is;i7), (1S81), 10 Daly (X. Y.), 222; 7 C. & P. 360; Hunt v. Iknnell Smith v. Ulley (1890), 02 Wis. (1859), 10 X. Y. 173; Bruce v. 133; 65 X. W. 744. Reed (1883), 101 Pa. St. 40S; 210 THE LAW OF MOTION PICTURES wrong. ^° And such liability would seem to be criminal as well as civil. ^^ And where a director has placed an actor in a dangerous part wherein he sustains injury he is the alter ego of the employer in the same manner as the foreman or superin- tendent of a shop. The rule appUes as well to acts of omission as to acts of commission. He is ordinarily vested with the right to employ and discharge actors and other employes. But he has no inherent authority to engage an actor for a year and thereby bind the company. ^^ He is entitled to a reasonable amount of publicity where he has contracted therefor, and in that event may insist that the display advertising and billing matter have his name printed thereon. ^^ Where his name is so advertised, '" Danville Press v. »Harnson (1901), 99 III. App. 244. ^^ Slate V. Mason (1894), 26 Oregon, 273; 38 Pac. 130; Ickes v. Stale (1898), 8 Ohio Circ. Dec. 442; Com. v. Kneeland (1834), Thach. Crim. Cas. (Mass.) 34G; aff'd 20 Pick. 200; Clay v. People (1877), 80 111. 147. 1- Vogel V. Si. Louis Museum (18S0),8Mo. App. 587. »' Drenan v. Fox Film Corp. (1910), N. Y. Law Journal, Aug. 25. "The plaintiff who i.s the author of a j)hotoplay known a.s 'The Daughter of the Gods' scok.s to enjoin the exhibition of it by the defendant without an accompanying ascription to him of the authorship, and without giving prominent publicity, in the various ways customarily employed in the motion picture business to advertise photopla3's, to the fact that the plaintifT 'is the originator, author and pro- ducing director of such photo- play.' The plaintifT was em- ployed by the defendant in January, 1915, at a weekly salary to write for it scenarios and direct the production of motion picture or photoplaj's. The engagement was oral, for no definite period, and contained no provision to insure to the plaintilT the pub- DIRECTOR AM) OTHER EMPLOYES 211 licity fi)r liimsclf, upon the im- portance of which he lays such stress in his coinphiint and in his moviiiK papers upon this apphcation, althoup;h he states that shortly before entering the einph)y of the defendant he severed liis c(jiuioc(ion with per- sons conducting a similar busi- ness for the reason that they denied to liiin the puljHcity ho felt he was entitled to. In July of this year the plaintilT volun- tarily severed his connection with the defendant by resigna- tion. Although I have no dis- position to pass upon the merits of the dispute in advance of the trial, which presumably will bring out the true and full situation, I think it is at least doubtful whether any engagement that may possibly be spelt out by defendant's conduct and the cu.s- tom of the business to advertise plaintiff's connection with the plays he wrote and produced while in the defendant's employ may hold good and continue after a severance of the relation of employe and employer. If the defendant were to be bound for all time to advertise the plaintilT in connection with the plays he wrote while in the pay of the de- fendant, it is more than strange that the plaintilT should not have miwJe such advertisement an express condition of the em- ployment, and procured the pro- tection of a written instrument, particularly when, as he says, he left his former employer for the sole reason that he was not sufficiently advertised. Many grounds of opj)osition are urged by the defendant, among them, that even if it should be thought from a reading of the papers submitted upon this motion, that the i)laintifT may have contrac- tual rights for the breach of which he should be entitled to suitable redress, it would be im- possible in such a ca.se as this for a court of equity suitably and appropriately to exercise its powers. While the proper en- forcement in equity of the plain- tiff's rights, if it be ultimately decided that he has any, may present certain difficul- ties, I am not prepared to say that an appropriate scheme of relief could not be worked out; but it is not ncce.«;sary for me to pa.ss upon that question. I rest my decision upon the belief that the ultimate success of the plain- tilT is too doubtful to warrant a mandatory injunction which may give to the plaintilT in advance of the trial a considerable meivsure of the relief he might be entitled 212 THE LAW OF MOTION PICTURES but he has not directed the picture, he may enjoin such use of his name.^^ Where he has directed a picture, and the producer or distributor places another name thereon, he may restrain the production. ^^ The director, being responsible to his employer for the proper filming of the picture, is given wide discretionary powers. He may alter the sequence of the taking of scenes; he may make changes in the scenario, eliminate scenes, change about the cast and in general, supervise and conduct the production to meet with his individual notion, taste and judgment. The director cannot be delegated by the producer to do other work, and his refusal to perform work other than to upon making out his case before the trial court. As the condition of the calendar is such that a trial may be had speedily, the risk of damage to the plaintiff is not in my judgment sufficient to require what would in effect be a determination in his favor prior to the taking of proofs. Motion denied." '■' The "Mark Twain" Case (1883), 14 Fed. (C. C.).728. "So, too, an author of acquired reputa- tion, and perhaps a person who has not obtained any standing before the public as a writer, may restrain another from the iMil)lica- tion of literary matter purporting to have been written by him, but which in fact was never so written. In other words, no person has the right to hold an- other out to the world as the author of literary matter which he never wrote." Drummond v. Altemus (1894), 60 Fed. (C. C.) 338. Here de- fendant published what pur- ported to be a series of lectures delivered by the plaintiff en- titled: "The Evolution of Man; being the Lowell lectures de- livered at lioston, Mass., April, 1893, by Professor Drummond." The court restrained iiim. See also Section 12. ''' DcHvkker v. Stakes (1015), 108 A. D. (N. Y.) 4r)2; 153 N. Y. Supp. lOfiC); Croaks v. Pctler (Kug.) (1800), 3 L. T. Rep. (N. S.) 225. See also Section 12. DIRECTOR AN'I) OTHKR i:.MFrX)YES 213 such within the scope of his employment is not grounds for discharge.'^ He, as well as all the other employes of the producer will be restrained from disclosing the trade secrets of their employer to a rival, in the same manner and under the same conditions as in other commercial pursuits.'^ '• A^a.s7i \-. K riding (189fl), 56 courts on this subject see: DuPont Pac. 200; afT'd 123 Cal. xviii. Powder Co. v. Mnsland (1917), F(ir additional cases see: Sec- 244 U. S. 100; Todd Prolectogrnph tion 45. Co. V. Hirf^chberg (1917), luO " For the latest expression of the Misc. (N. Y.) 418. CHAPTER V THE DISTRIBUTOR AND THE EXHIBITOR Sec. 74. Distributor— in general. 75. Exhibitor — in general. 76. Advertising matter, programs, bill-posters. 77. What are fixtures. 78. Replevin of film and machine. 79. Theatre leases. 80. Theatre a nuisance. 81. Franchise and booking agreements. 82. Benefit performances — private exliibitions. 83. Interstate commerce. 84. Bankruptcy. 85. Libel. Section 74. — Distributor — in general. It has become a practice in the motion pictm-e industry to have separate organizations take care of the manufac- ture and distribution of the motion picture. A number of the concerns manufacturing the fihns turn o\'er the finished product to a distributing agency. The distribut- ing agency is usually the main organization, the manu- facturing companies being subsidiaries of the releasing or distributing company. The distributing company main- tains branches in the principal cities of the country, known in the trade as "exchanges" tlirongli wliich ilio motion pictures are rented out to the individual ('xhibitors. One of two methods is usually followed by the dis- 214 DISTRIBUTOR— IN GENERAL 21o tributor to compensate the manufacturer for the fihris. In the one case the negative of the film is sold outright to the distributor for a lump sum, usually amounting to the actual cost of production, and positive prints of the film are sold at a specified ainomit per foot; the other method is to have the producer lease the positive prints of the film to the releasing agency, the gross receipts being divided between the two u})on a fixed percentage basis. The former method was the one first adopted in the industry, but the latter has become more popular in the past few years and will undoubtedly ultimately supplant the older method entirely. That is true especially because of the growing custom of forming manufacturing organizations to make the pic- tures of a single star and giving him a part of the capital stock of the company. The star, being a stockholder, will turn the films over to a releasing company, only upon condition that a share of the receipts are returned to the company. In this manner a profit is derived from the exploitation of the film, from which the star receives a share on account of his stock holdings. Litigation between the producer and the releasor is infrcciuent. Their interests are, as a rule, closely allied and, as the control of each one is in the same group of men, all disputes between them are usually settled intra mura. Occasionally, disputes arise which reach the courts, and the questions which come up are complicated and diflicult of adjustment. In the case of GoJdburg v. Popular Pictures Corporation the producer, under his contract with the distributor, made for and tendered to it a negative of a film. Under 216 THE LAW OF MOTION PICTURES the contract the producer was to receive a sum equal to the actual cost of the manufacture of the negative plus a percentage of the gross receipts when the film was re- leased. The distributor failed to accept or pay for the film, and when suit was brought, the court was at a loss to understand whether the action was upon a lease, a sale, or a joint venture. After a careful array of the facts, Judge Greenbaum decided that the complaint should be based upon a breach of contract. Thp measure of damages would be solely the actual cost of producing the picture. The per- centage of the gross receipts was entirely too speculative, as the picture had not been exhibited by the defendant Popular Pictures Corporation, and plaintiff was directed to amend his complaint accordingly.^ ^Goldberg v. Popular Pictures It lacks, however, all the essential Corp. (1917), N. Y. Law Journal, features of any of these transac- April20. Greenbaum, J.: "The tions. It is not a sale, because subject-matter of the contracts the title in the production is re- upon which the defendants are served in the plaintiffs, the de- sought to be held is the produc- fendant having merely the right tion by the plaintiffs of a feature to rent, exhibit or otherwise use motion picture to consist of not the films produced by the plain- less than 4,500 feet, to be de- tiffs. It is not altogether a lease, livered on or before a fixed date because it is in(l(>(inito as to the to the defendants Popular Pic- terms of duration, and it obli- tures Corporation, who will be gates the defendant the Popular referred to as 'the defendant.' Pictures Corporation to the per- The legal obligations flowing formance of {-(M-taiii active duties from the contracts are of a some- or obligations in handling the what composite nature, embody- production. The total amount ing those that arc pecnliar to a of what may be termed the sale, a lease and a j(jint venture. 'rentals' to be paid to the plain- DISTRIBUTOR — IN fiKN'ERAL 21' After the anientlinent of the coinphiint the defendants interposed answers in which they set up as a partial tiffs is dependent in fnc-t upon the gross receipts oljtained by the defendant from the exhibition or use or lease of the pictures. By the terms of the agreement the compensation or rental to be paid is an advance payment in a single sum, equal to the actual cost to the plaintiffs of manufac- turing the pictures, not exceed- ing, however, the sum of S14,(KX), plus 50 iK?r cent, of the gross receipts obtained by the defend- ant in producing the pictures, after the defendant shall have first reimbursed itself from these receipts to the extent of the ad- vance payment. Although the contract embodies some of the substantial features of a joint venture, nothing is stated therein which would indicate that the parties so regarded it, and upon tlie argument of this motion no suggestion was made by either party that it is a joint venture, and, besides, it lacks the element of 'profits.' The result of this conglomerate relationship is that the learned counsel for the re- spective parties variously at- tempt to apply the rules of law ap])licable to a sale to a lea.se. It is also claimed on the one side that the contract implies a fi.xed or al)Sf)lute obligation in part and the right to uncertain damages in part. On the other hand, it is contended that the situation set forth in the com- plaint would jKTmit the plaint itTs only to [recover) general or spe- cial damages, if provable, as for a breach of the entire contract. Eliminating the technical p to pay I'^dward J. Ilazzard the sum of SS.,")!) por week for publishing my adver- tisement in the l<'ifth Av(>nue, Union S(iuare and Lyceum Thea- ADVERTIrtlNO M ATTHR, I'liOGRAMR, HIM^I'OSTERS 231 length of II theatrical season, the jury was permitted to determine what period constituted such a season.-^ A faiUire to give the specified number of porformaiu-cs makes tlie owner of the theatre Hable under the contract.-' Where tlie performance of the contract "depends upon trc, to occupy one inch on i)ro- gram page for the tlicatre season. Season ISSO, 1SS7. "Anna P. Hoxsie." II(l({ that tliis was an entire contract, and where the Fiftli Avenue Theatre closed first, the contract was tertninated at tliat time and defendant was Hable only up to that time. » Straffurd v. Stetson (1910), 41 Pa. Sup. Ct. 5G0. The contract was: "lasert our advertisement in the Kieth's Chestnut Street Thea- tre programme for the (no other piano house ad. hut Blasius & Sons) theatrical season of 1902 and 190;i, to occupy space of opposite page 4, on page, for which we agree to pay tl(* dance floors put up in sections,'"'' nor a carousel in an amusoniont l)ark, even though an old one had been removed and a new one substituted 1)V the lessee." Section 78. — Replevin of film and machine. Where the i)laintilT, the owner of motion picture films, had leased them to defendant under a license agreement which the latter had violated, the plaintiff was entitled to maintain rei)levin for the possession of the films. ''^ The ^^ Oliver v. Lansnng (1899), .')9 Nel). 219; 80 N. W. 829. Held that "tho staRC appointmonts, such as sconory, etc.," as vvoll as tho opera cliairs fustoiiod to tlio floors, all of which had \)0('\\ huilt and dosignod specially for tho huililiiiK wore fixturos and passed with (he realty; that a piano, carpets :iiid curtains were personalty. Waycro^s v. Sossman (1894), 94 Ca. 100; 20 S. K. 2r)2. Ihhl that scenery and ftther articles constitutiuR tho staRO and scenic outfit of an opera house a.s well as droi>-eurtain, wings, borders, set-houses, settees and balus- trades, were fixtures. To the same etTcet: drewnr v. AU(umy, .i Teiui. Ch. .■)84. '» Scciin'lii Trust Co. v. Temple Co. (1904), 07 X. J. Va{. r)14; ."iS Atl. SO."). Held that the f(;llow- ing were not fixtures of a theatre: stage-scenery, chairs not fas- tened to tho realty, combination closet, clock, ticket-boxes, mirrors, tools, wrenches and oilfitter, large portable dance-floor in sections. ''Midler V. Riltersrltle Hotel (l9i;i),240Pa. 79;S7 Atl. 421. ^^Lubin V. Swaah (19i;i), 240 Pa. 182; 87 Atl. 597. This was an action in replevin to recover nine motion i)icture films leased under a licensed agreement. PlaintitT had been licensetl i)y the Moving Picture Patents Co.. owner of patents, to make and lea.se films to exchiinges; defeiid- ant operated an exchange. The contract provided that on t(>r- mination for a breach plaint ill 236 THE LAW OF MOTION PICTURES physical property of the films is in the hcensor, which is sufficient for the purposes of the action. Likemse, the owner of a motion picture machine may reple\'y the same, even though the same was taken out of the state and sold to a bona fide third party. ^^ In each case, the rule is that while a license in the use of the thing may be granted, title to the physical film would after 20 days havevin motion picture fihns, the; defenses also being conspiracy and bad faith. Biogroph Co. v. JnlernuUonal Film Traders (1912), 7G Misc. (N. Y.) 430; 134 N. Y. Supp. 10G9. Plaintiff was a licensed manufacturer of the Motion Pic- ture Patents Co. It rented fihn to exliibitors licensed by the Mo- tion Picture Patents Co., in ac- cordance with its agreement with the Patents Co. The title in the film was in plaintiff. Defendant was not a licensed exhibitor and could not clearly show how it came into possession of the films. Held that plaintiff could replevin the films and that defendant in refusing to deliver up the same was guilty of conver- sion. '^ Adams v. Fellers (1910), 88 S. C. 212; 70 S. E. 722. A mo- tion picture machine was rented in Georgia bj'- plaintiff to one Heatherly, under an oral agree- ment that the machine was not to be taken outside of the state; the rental agreement was not recorded, the state of (Jeorgia not requiring such recording. The machine was removed to South Carolina and there sold tf) a bona fide purchaser, the de- fcMulant. lUid plaintiff w:vs en- tilled to a return of machine. THEATUE LEASES 2'M or iiiachine still remains witli tin- licensor; and on tiic breach of the agreement between them, the licensor may rcscintl the contract and get back the physical possession of ills property. Section 79. — Theatre leases. While there was an old Eii«i,lish custom with reference to one month's termination of a lease of a theatre upon notice, the modern lease of a theatrical building, theatre or music hall does not differ from leases of real proi)erty in general. However, as productions increase in magni- tude, and the relationship between the theatre and the various forms of amusement offered in it becomes more and more complex, covenants more or less ])eculiar to the theatrical profession are inserted into the lease, and come up for construction by the courts from time to time. Where the lessee of a theatre was described as "]\I. G. representing ]\Icssrs. C. A. C. & Co. jManager of the A. 0. B. Co." it was held that "M. G." was hable as a jjrincipal and the words added to his name were merely words of description."' A theatre is often spoken of as a "fu'st-class theatre" to distinguish it from theatres in which cheaper and inferior grades of plays are produced. Where, in the lease, the parties have covenanted that none but "first- class" productions are to be given in the theatre, a breach of such covenant l)y the giving of inferior productions, entitles the lessor to maintain hold-over ])rocecdings,^' <"(7rfl« V. McVickar (1S74), S FA Miso. (N. V.) M; 105 X. Y. Bis.s. 7; 10 Fed. Cius., No. .'),708. Siipp. 477. liuld-ovcr procccd- *' Mailer of ISchoclkopf (1907), iiigs by lessor of theatre because 238 THE LAW OF MOTION PICTURES In Hammerstein Opera Co. v. Belasco,^'- the interesting question arose as to whether the exhibition of motion pictures violated a covenant in a lease. The lease pro- vided that the premises were ''to be used and occupied by the said tenant as a first-class theatre" and that the tenant would not use them or permit them to be used "for any business purpose deemed disreputable or extra hazardous on account of fire, etc." Belasco had used the theatre for high-class plays for wliich he charged from fifty cents to two dollars admission; he had, however, hcensed the Universal Film Company to exliibit in the theatre a motion picture to which admission fees, ranging from twenty-five cents to one dollar, were charged. It was claimed that such motion pictures were not "first- class" plays, and that the premises were rendered "extra hazardous by fire." The court sustained the plaintiff and granted the in- junction.^'* of breach of covenant to operate the facts set out in the affidavits "for any other purpose than a jjresented by the plaintiff arc theatre and opera house of true, then the premises are not strictly the hrst class, etc." De- being used as a first-class theatre, fendant gave exhibitions of a und if such use is continued the cheaper standard, and the court value of the property will be held that the lease was violated, greatly diminished. . . . Not and the huidlonl was (Mititlcd to only this but tlio fact is not dis- an order. puted i)ut that the use to which *^ Hammerstein v. IMaxco the theatre is now being put is (1914), 161 A. I). (N. Y.) 109; extra hazardous on account of 146 N. Y. Supp. 341. fire. In answer to this the de- ^' Ffammerslein v. IMa^ro fcndants state; they liave com- (1914), 161 A. D. fX. y.) 199; plied with ail tlie requirements 116 .\. V. Sui)|). .'ill. "... If of tiic luuiiicipai authorities, but THEATRE LEASES 239 In a later decision, however, it was held that a cove- nant to exhibit pictures for admission ranging from twenty- five cents to two dollars was not violated by cliarging only twenty-five cents to fifty cents." if so the present use of the theatre would seem to he a violation of the clause with reference to an increased hazard on account of fire." **aod€t V. Frohman (1916), N. Y. Law Journal, Feb. 2.3. "Application pendente lite for injunction. The plaintifT, the owner of the Knickerbocker Thea- tre, .socks to enjoin the defendant from presentint; in said theatre a continuou.s motion picture per- formance at admission prices 2.") and .')0 cents. They assert tiiat such action on the part of defendants is a violation of the covenants of the lease of tlu; theatre. It appears that the defendants Ilayman, Klaw «fe Erlanger and Charles Frohman, Inc., are lessees from the plaintilT, and under their lease, entered into an agreement with the de- fendant Aitken, granting the use of the theatre to the defend- ants under certain restrictions. The following provisions are con- tained therein: 'The parties of the first part let unto the party of tlie second part (.Vitken) fur the purpose of e.\hiljiti(ms of first-cla.ss motion pictures only for a jHjriod of one year, com- mencing Sept. 1, 191"), and ter- minating August 31, 1916, the Knickerbocker Theatre. . . . The secontl party defendant (Aitken) agrees that said premises are to be used only for the exhibition of first-class motion pictures, and not otherwise, prices of admission to be anil maintained at the .same standard as that of other first- cla.ss theatres on Broadway; even- ing prices to be 25 cents to S2.00. The second party (Aitken) agrees further to use said theatre as a theatre of the first cla-ss in the City of New York. . . . The jxirty of the second part hires the said theatre subject to the leiuse of the parties of the first part with the owners of the said building. . . .' It is as.scrtcd that the defendant Aitken and the defendant Triangle Film Co. are violating this agreement by offering the theatre sis a con- tinuous moving picture house at the prices above stattnl, and presenting an addition to motion 240 THE LAW OF MOTION PICTURES Rent is suspended, when so covenanted, when the theatre is closed by the authorities, but the covenant must be express. ^^ Where, however, the lessee has not made any such reservation, and the police or the local authorities, because of non-compliance with their regu- picture songs, musical numbers and other acts; that the defend- ant, it is claimed, has further violated the agreement by trans- ferring the said lease or rights thereunder to the Triangle Film Co. I am of the opinion that the acts complained of are not clearly such as to constitute a breach of the covenant contained in the lease for violation of which this relief is sought. The case is novel and far-reaching in its im- portance. It is a matter of serious question whether or not it can be decided on affidavits. Through the introduction of mov- ing picture and photo plays into the theatrical field there has oc- curred therein an evolution in the production and presentation of plays; in fact, the entire trend of the business may have so evolved as to permit the defend- ants to carry on their business as now being conducted without violating the restrictive cove- nants of the lease. pA'en though irreparable injury be shown, in view of the short time which the lease has to run, unless the right of those seeking the in- junction is clear and unmistak- able this court may not intervene to prevent the use of the theatre in the manner that it is now conducted. The issues are im- portant and the determination should be left to the trial court, and the injunction ad interim must be denied." « Lennox v. Curzon (Eng.) ( 1906) , 22 T. L. R. 6 11 . Under a lease for a theatre which was in process of construction it was j)rovided that when "closed by order of any superior authority, etc.," the rent was to be sus- jiended. An adjoining railway builtling collapsed and the theatre structure becoming unsafe, the London County Council refused to issue a license. Held, that the theatre was "clo.sed by order of a superior authority" and that the rent was susjjended. THEATRE LEASES 241 lations, .sliut down the tlieatrc, the rent reserved accrues nevertheless and tlie lessee is Uable therefor.'® Where the theatre is destroyed by fire before the com- mencement of the term of the lease, the lessee is rclicv(»d from Ills obligation thereunder.'^ In Adler v. Miles,*^ where the lease provided that the demised i)rcmises were "to be used and occupied for the purposes of a place of amusement for the exhibition of moving pictures and for no other purposes whatsoever" a city ordinance subsequently enacted making the giving of motion pictures in this theatre unlawful, was held suf- ficient to exonerate both the lessee and his surety from the obligation of paying rent. ** Lwniansky v. Tcssier (1912), 213 Mass. 182; 09 N. E. 1051. Tlie dcmi.scd premises were leased for a vaudeville and moving pic- ture theatre. Under tlie lease, the lessee was required to make all inside repairs. The state police notified the lessor that unless certain interior alterations were made the licen.se would be revoked. The lessee, knowing of the requirements of the state police, but not complying with them although he was obligated so to do under his lea.se, cannot excuse himself from paying the rent stipulated under the lease when the license is revoked be- cause of non-compliant'O with the state police reciuiremcats. « Taijlur V. Caldwell (Eng.) (1863), 3 Best. & 8. 82G. *^ Adler v. Miles (1910), 69 Misc. (X. Y.) 601; 126 X. Y. Supp. 135. After the making of the lease a city ordinance was enacted prohibiting tlie use of premises such as the demised premises for the exhibition of moving pictures. In an action on the lease against the surety of such lease it was held that neither the original lessee nor his surety wore obligated to pay rent after the |xissage of the ordinance, tlie court applying the rule ex- pressed in the maxim "lex non cogit ad impossibilia." 242 THE LAW OF MOTION PICTURES A covenant against assignments is valid; but where there have been numerous assignees, and the lessor has accepted rent from all, this would amount to a waiver on the part of the lessor. ^^ In building and other contracts for the construction of theatres, it is well to define with every degree of exactness what the theatre building is to be, with special reference to the unique elements of the building, such as the pro- scenium, stage, seats and so on.^° And for delay in such construction, the lessee may, in an action for the rent, counterclaim for damages sustained by him by reason of such delay, ^^ or the lessee is entitled to maintain an action " Nelson Theatre Co. v. Nelson (1913), 216 Mass. 30; 109 N. E. 926. Where defendant had leased a theatre to a tenant with the usual covenants against assign- ments unless consented to in writing, and where the tenant had subsequently assigned with- out such written consent, and there had been subsequent as- signments without written con- sents, and the defendant had accepted rent from all these assignees: Held, that he would be enjoined from ousting the last tenant, as his acceptance of the rent amounted to a waiver of that clause in the lease. Held aUo that evidence of experts on the receipts of the theatre for the past year as a basis for (-ompuf- iug the damages was admissible. ^"Neher v. Viviani (1910), 15 N. M. 460; 110 Pac. 695, passes on the meaning of a building con- tract for a theatre, and holds in particular that the phrase "a modern thirty thousand dollar theatre building" includes in addition to the bare building, the usual necessary permanent equipment, such as plumbing, heating and lighting apparatus, seats, curtains and scenery adapted to and intended for use in that particular building, but not the piano, furniture, carpets, etc. ^^ New York Academy of Music V. Ilackdt (1858), 2 Hilt. (X. Y.) 217. Defendant leased plaintilT premises for two months, plain- tiff to use diligence in completing the construction of building. TH i;ai'iu; li;asks 243 for li(iui(la(('cl damages iiiidcr the contract, where the theatre was not constructed and tlie lessor has utterly failed to perform. ■'-' lessee to l)e evicted on account of noii-paymeiit of rent. Pluiii- tifT failetl to use diligence in conipletinfj; the huililinR and de- fendant failed to pay rent. Ac- tion was for rent. Held that defendant might counterclaim for his damages l)y reason of plain- tilT's breach in failing io dili- gently comj)lcte the building; that defendant was entitled to be allo\ve Con^ey Island Co. v. M'lntyrc- Paxton Co. (1912), 200 Fed. {C. C. A.) 901. An agreement mndc for the use of an amuse- ment park construed, and its tenure dcfinod. Whetiicr the ri^lits of a con- cessionaire amounted to a license revocable at will of owner, (puvre. " Lcavitt V. Wind.'ior Land ^\: Inrestment Co. (1S9:?). 'A Fed. (C. C. A.) 439. Where contract jJrovides that defendant furnish buildin}; and pay certain of its expenses and the plaintiff give his time and skill in carrying on a theatre therein and to act as manager of such theatre, the tlefendant to receive a fixed sum as rent and in addition thereto one-half of the net profits; the contract also providing that the los.ses be borne equally by the jiartics it was held that a partner- ship had been created though the parties had referred to them- selves as lessee and lessor. See also Section 02. On the question of the dissolu- tion of such joint venture see: Shuberl v. Laughlin (1907), 107 X. Y. Supp. 708. Plaintiff con- tributed his theatre lease and defendant his skill as a manager and booking-agent in a joint 240 THE LAW OF MOTION PICTURES to rent the lessor was to receive a stipulated portion of the profits, and pay certain charges and to share in the losses, the relation was that of partners or joint venturers, and not that of lessor and lessee. The lessee may sell out his interest in the theatre to a third party; and in such a contract a covenant by him not to engage in business in a limited territory for a limited term has been held valid and binding. And where, in \'iolation of such covenant, he subsequently attempts to manage a theatre witliin the prohibited area during the prescribed term, he will be en- joined. ^^ However, injunction is not a remedy usually favored by the courts with respect to leases and their breaches, for to do so ''would be to compel supervision by the courts for a long term of years and the enforcement of negative covenants which would in effect be to decree specific performance." ^^ Where the owner of the theatre had contracted first with one company, then with another company, for the venture. In an action brouglit good will and business to the by one of the partners an order Metropolitan Opera Co. He appointing a receiver was re- covenanted not t(j engage in versed on the ground that plain- grand opera in New York City tiff was not asking for a dissolu- for ten years. On injunction to tion, and that the proper parties restrain (lef(>ndant from giving had n(jt been brought in. grand opera, held, that such a " Metro politan Opera v. Ham- covenant was not in restraint of merstein (1014), 102 A. D. (N. Y.) trade, and was reasonal)le. 691; 147 N. Y. Supp. ry.V2. I)e- '•^ Shuhrrt v. Woodirnrd (1909), fcndant Oscar Ilanimerstcin in 1(17 l''e(l. (C C. A.) 47. 1914 .sold his opera properties, THKATRK LEASES 247 lease of his theatre for tlie siuiic tcnii, injunction was likewise refused/'" In an action between the lessor and lessee of a theatre who had agreed to di\'ide the profits of a i)lay to ))e pro- duced therein, evidence of the previous receipts of the theatre, of the popularity of the production in places where it had already been produced and the probable amount of the receipts was inadmissible."^ But in an action on the breach of a lease for a theatre, e\idence of experts on the receipts of the theatre for the past year as a basis for computing the damages was heltl admissible. "- Wliere the issue involved is whether the performances given were in compliance with the contract, declarations of the patrons at the very moment they are leaving the theatre, of their reasons for so doing, are a part of the "res gestic" and admissible."^ Wliere a defendant was sued for services rendered and the question was whether he or liis landlord was lial)le <'o Welly V. Jacobs (1S9S), 171 '^^ Moss v. Tompkins (1893), 111. G21; 49 N. E. 723. PlaintilT, GO Hun (X. Y.), 288; 23 X. Y. manager of "The Black Crook" Supp. 023; aff'il 144 X. Y. 659; entered into a contract with de- 39 X. K. 858. In this connec- fendant for the use of the hitter's tion, see Sections 21 anil 49. theatre. Subsequently defendant »- \ehon Theatre Co. v. Xehon entered into another contract (1913), 216 Mass. 30; 109 X. K. with a rival "The Black Crook" 926. See also: lioscnwasser v. company for the use of his theatre Amusement Enterprises (1914), 8.S for the same iKTiod. PlaintitT Misc. (X. Y.) 57; 1.50 X. Y. Supp. sued for injunction to restrain 561. such use of the theatre. Held ^Tharlei/y. I'oltlwjT {l{m),l\S untenable. Wis. 258; 95 X. W. 124. 248 THE LAW OF MOTION PICTURES therefor, it was held that the lease between himself and the landlord was admissible in evidence.^^ Where the contract was evidenced by a letter, oral testimony show- ing a quahfication of the letter was held inadmissible.^^ The question has occasionally arisen whether a munic- ipality has the right to establish and maintain a place of amusement. In a recent Ohio case it was held that the powers to be exercised by a municipality did not include the main- tenance of a motion picture theatre.^^ " Miller v. Lawrence (1895), 13 Misc. (N. Y.) 130; 34 N. Y. Supp. 161. ^^ Zerralin v. Ditson (1875), 117 Mass. 553. Plaintiff sued for services rendered in conduct- ing of "The World's Peace Ju- bilee." Defendant set up a special contract whereby the services were rendered upon the understanding, expressed in a letter , that the management would not be responsible in case the music festival resulted in a loss. On the trial defendants offered the letter in evidence and plain- tiff attempted to give oral testi- mony to show a (lualification of the terms of the letter, which was rejected as varying the ex- press terms of tli<' letter. Held on appeal that the oral evidence was propc^rly rejected. '■^ Slate V. hynch (May, I'.H:})^ 102 N. E. (Ohio) 670. "Whether a municipality acquires authority 'to exercise all the powers of local self-government' by adopt- ing a charter, or adopts a charter as an indispensable mode of exercising the authority, the pow- ers to be exercised, being govern- mental, do not authorize taxa- tion to establish and maintain moving picture theatres." The decision was by a divided court. A strong dissenting opin- ion was written by Judge Wivnii- maker. See also: Smith v. City of Raton (1914), 140 Pac. 109 (N. M.) Under the powers granted to cities and towns by the statute to erect all needful buildings for their use, such municipalities are limited to the erection of such needful buildings as may be re- (juired for puljlic uses or for THLATUK LKASES 249 In California a dofision was rondorod a month after the opinion in tlic Oliio case was luindcd down, hoUUiif; that a municipal corporation uiifiht have the power to erect and maintain a i)la('o of \m\}\\r aniusenuMit, although it could not contract with a private corporation for the erection of the buildings by the private corporation on land belonging to the municipality, where the property was to be managed by a board of trustees, a majority of which were not to be selected by the municipality.''" municipal uses and purposes as pality may devote money for distinguished from private or quasi public use. Where the paramount purpose is to use fiuch building for theatrical per- formances, "legislative autlior- ity is lacking in this state for the erection of such buildings by cities and towns." See also: Tncslccs, dr., v. Leu'/.s (1012), r>:j Fla. G91. See in this connection Wordcti V. New Bedford (1.S81), 131 Mass. 23, where it was held that if the building was, in good faith, erected for municii)al purposes but later became vacant, the municipality had a right to ix^r- mit its uses for a i)rivate enter- prise. See also: Bryant v. Logan (1904), oG W. Va. 141; 49 S. E. 21. "' I'Jgnn v. San Francisco (June, 1913) i Km Cal. h7(\- 1.33 Pac 294. The court cites in support of the proposition that a numici- the pleasure and amusement of its inhabitants: IhdiUnrd v. Taun- ton (1886), 140 Mass. 467; 5 N. E. 157; Denver v. Hallett (1905), 34 Col. 393; 83 Pac. 1066; Kingman v. Brockton (1S91), 153 Ma.ss. 255; 26 N. E. 998; Spires V. Los Angeles (1906), 150 Cal. 64; 87 Pac. 1026; Laird v. Pitts- burg (1903), 205 Pa. St. 1; 54 Atl. 324. The court cites the following cases in supp(jrt of the proposi- tion that the public use of pub- lic property cannot coexist with private management and control of such property. California Academy v. San Francisco (1895), 107 Cal. 334; 40 Pac. 426; Home, etc., of the Inebriate v. San Fran- cisco (1898), 119 Cal. 534; 51 Pac. 9.50; Fm Societa, etc., v. San Francisco (1!HK)). 131 Cal. 169; G.3 Pac. 174. See also in this connection: 250 THE LAW OF MOTION PICTURES Lessees of theatres are customarily required to deposit a sum of money with their lessors as security for the due performance of all of the provisions of the lease. The agreement sometimes provides that in case of any default by the lessee, the lessor may retain the moneys deposited with him as hquidated damages. The com'ts will not be bound by the language of the parties. If the result is to penahze the lessee the courts will permit him to recover back his deposit. In Stimpson v. Minsker Realty Co., the plaintiff as receiver brought an action to recover back $68,500, part of a deposit of $72,000, made by the lessee with the lessor under a lease for a theatre. In view of the fact that the amount sought to be retained was out of all pro- portion to the damages sustained by the defendant the court was constrained to treat the amount as a penalty, notwithstanding the express provision of the lease that the lessor was entitled to retain the entire amount as liquidated damages in the event of a breach.^^ An action to recover back a deposit under a lease may be maintained only upon the expiration of the period of French v. Quincy (1861), 3 Allen loss in case of a breach as viewed (Mass.), 9; Stone v. Oconomowoc at the time the lease was made. (1888), 71 Wis. 155; 36 N. W. In the event of a breach by the 829; Jones v. Sanford (1877), 66 lessee, the lessor could assume Me. fyH!)] Sugar V. Monroe ilW2), absolute control of the premises 108 La. 677; 32 So. 961. and relet them for its own ac- «« Stimpson v. Miasker Realty count. It is hardly credible that Co. (1917),177A. D. (N. Y.).536. it would fail to relet them to "We also think that the S72,0()() a(lvant:if!;(', situated as thoy were retained by the h.'ssor is out of in the midst of numerous and all proportion to the probable theatre going population." THEATRE A NUISANCE 251 the lease, unless every ccmtinKciicy iiiidcr wliich the de- fendant might have had a claim for damages agaiast said fund has been exhausted.*^' The lessee may maintain an action for breach of the contract before the date arrives for his entry upon the premises, where he is informed prior thereto by the lessior that he will not be permitted to enter upon such ])remises."° The lessor, when suing for rent on a guaranty, is not required to prove that the defaulting tenant was in actual physical possession of the premises."' Section 80. — Theatre a nuisance. A theatre is not a nuisance per se.''- But under certain •"''^ Hal pern v. Manhattan Ave. Theatre Corp. (191G), 173 A. I). (N. Y.) 610. ■'o Grail V. McVickar (1874), S Biss. 7, 10 Fed. Cas. No. 5,708. The performances were to com- mence Feb. 9tli. It wa.s hcUl that a complete cause of action accrued prior to that date where the ies.see notified the lessor tliat he would not comply with the terms of tlic agreement. 7' Wooils V. Broder (1908), 11 3 N. Y. Supp. 335. For a case tvhere a bar privilege was leased see: Day v. Lun/i Park (1912), 174 111. App. 477. A concession granted hy the de- fendant, an amusement park, for a bar privilege, which con- tains a restrictive covenant against its assignment to third I)arties, is personal and does not, in the event of bankruptcy of the bar, i)ass to the trustee in bankruptcy. " City of Indianapolis v. Miller (1907), 168 Ind. 285; 80 N. E. ()26. "While theatres are sub- ject to the police ix)wer of the state in some particulars, yet it can by no means be said that the business of conducting a playhouse is in its own nature a nuisiince. 1 Hawk. P. C. 693; Joyce, Nuisances, Section 115; Wood, Nuisances, 3d Ed., Sec- tion 52." City of Chicago v. Weber (1910), 246 III. .304; 92 N. E. 8.59. "A city may declare and abate nui- sances, but a theatre Is not a 252 THE LAW OF MOTION PICTURES conditions it may easily become one, as when large crowds gather in front and extend in line, boisterous patrons congregate, noises issue from the theatre, and the like. The most frequent complaint is that great crowds are attracted to the theatre, and extend in long queues down the street, obstructing entrance upon and egress from adjacent property, and interfering with the free use thereof. Where tliis is a common occurrence, it unquestionably constitutes a nuisance, and may be abated by appropriate remedy.^^ This is true not only of a theatre, but of other nuisance per se, and a declaration by the city would not make it a nuisance unless it was such in fact. [Village of Des Plaines v. Poyer (1888), 123 111. 348; 14 N. E. 677.]" To Ihe same effect: 1 Hawkins P. C. (8th VaI), 693; Barber v. Penleij (Eng.) (1893), 2 Ch. 447; Bellamy v. Wells (Eng.) (1890), 63 L. T. N. S. 635; Ex parte Whitxrell (1893), 98 Cal. 73; 32 Pac. 870. Holt, C. J., in Betlerion's Case (1695), Holt K. B. 538; 5 Mod. 142; 5 Kin. 625. "It hath been holdnn that a common j)layhousG may be a nuisance if it draw to- gether such a number of coaches or people, etc., as to prove generally inconvenient to the phicps ndjaceut. And it seems that playhouses, having been originally instituted with a laud- able design of recommending virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may only be- come such by accident." " Lyons, Son^ & Co. v. Gulliver (Eng.) (1913), C. A. (1914), ICh. 631; 30 T. L. II. 75. Defendant conducted a theatre. A large number of people assembled in and about the theatre before each performance. Long lines were formed extending for some dis- tance from the theatre, five per- sons abreast. Plaintiff's premises were adjacent to tho.se of de- fendant. Held that the collec- tion of such crowds constituted an actionable nuisance, and that the failure of pohce to korp jm-oikm* gaps for passage of public and THEATRE A NUISANCE 253 fomis of public exhibition ai or line need not necessarily rcRulute the crowds was no defense. Dissent iiit; o|)ini- proved of the rule of law " tliat the collecting of crowds immediately before a residence, so as to block up the approaches to it, might be a nui.sance, and that if the collection of those crowds was to be attributed to the act of a ])articular individual, that in- dividual might be restrained from the commission of that act." The statement of the law by Lord Cairn as above quoted was approved on apixial by Lord Justice Selwj'n. Walker v. Brewster (Eng.) (1867) , L. R. 5 E(i. 2.-). Held that the collection of large crowds in front of defendant's anuiscment resort constituted a nuisance and should be enjoined, '* Sfiaw's Jcnclnj Shop v. .V. )'. 254 THE LAW OF MOTION PICTURES terous; its mere presence in sufficient numbers to inter- fere with the adjoining owner's rights constitutes the nuisance. Where a place of amusement is so conducted that noises issue therefrom so as to disturb the peace and rest of the neighbors, it becomes a nuisance, whether such noises are caused by the patrons or by the performers^^ Herald (1915), 170 A. D. (N. Y.) 504; 156 N. Y. Supp. 651. The maintenance of an automatic baseball playograph which caused the collection of thousands of spectators and impeded traffic to the extent of requiring the presence of a large number of police officers and interfered with the ingress to and egress from plaintiff's store constituted a nui- sance, for which plaintiff was entitled to damages, and if not abated at time of trial, to an injunction. Jaques v. Natl. Exhibit Co. (1884), 15 Abb. N. C. (N. Y.) 250. It was held that a puppet show in a window for advertising purposes, which drew together crowds of persons, was a nuisance. Bellamy x.WcU.siKnfjr,) (1S90), 63 L. T. N. S. Chir,. The assem- blage of large groups of persons before defendant's club wlioroin boxing exhibitions wen- cdii- ducted was licld to be a nuisance. Rex V. Carlile (Eng.) (bSlil), C. and P. 636. Defendant ex- hibited some effigies in his win- dow, which caused the collection of large crowds in front of the window and obstructed passage along the street. Held a nuisance. Rex V. Moore (Eng.) (1832), 3 B. & Ad. 184. The collection of a large number of persons on the road leading to defendant's shoot- ing grounds was held to be a nuisance. The court said: "If a person collects together a crowd of people to the annoyance of his neighbors, that is a nuisance for which he is answerable." " Cluncy V. Lee Wai (1896), 10 Hawaii, 319. The playing of instruments at defendant's thea- tre from which such noises ema- nated as interfered with plain- tiff's slumber was enjoined. .Sec also: Penrose v. Nixon (1891), 140 Pa. St. 45; 21 Atl. 364, where injunction was re- fused to restrain noises caused by tlie shifting of s(;enery. Village of Dea IHuims v. Foijer THEATRE A NUISANCE 255 The close proximity of the theatre to a church has also been held to constitute a nuisanceJ^ So, to(^, where l)atr()ns wore continually trespassing on the adjacent owner's j)roperty.^^ (ISSN), 12;i III. HAS; 14 X. E. 677. Where the noise and commotion of a public resort reaches such II point as to interfere with the rights of the public, they will constitute a nuisance. CommouivcaUh v. Cincinnati, etc., Rd. Co. (1908), 139 Ky. 429; 112 S. W. 613. An indictment charging that defendant per- mitted the congregation of large numbers of i)crsons at its public resort on and near a public high- way, who made loud noises, and otherwise misbeiiaved themselves to the discomfort and annoyance of the inhabitants residing in the vicinity, sufficiently alleged acts constituting a nuisance. See also: Cramer v. Klein (1908), 127 A. D. (N. Y.) 146; III N. Y. Supi). 469; Jung Brew- ing Co. V. Conintonirealtk (li)06), 123 Ky. 507; 96 S. W. 595; Lerin V. Coudmn (1906), 191 Mass. 341; 77 N. E. 718; Palestine v. Minor (1905), 86 S. W. (Ky.) 695; Toim of Davis v. Doris (1S95), 40 W. Va. 464; 215 8. K. 90(); Schleuter v. Billingheiiner, 9 Ohio Dec. (llepr.) 513; Paris v. Coni- vionieenlth, 4 Ky. Law Rep. 597; Jenkin.'i v. Jncksun (Eng.) (1888), 40 Ch. D. 71. ^» Nahaer v. City of Chicago (1915), 271 111. 288; HI X. E. 119. Held that a motion picture theatre within 200 feet of a church constituted a nuisance. Hamlin v. Bender (1915), 92 Misc. (X. Y.) 16; 155 X. Y. Supp. 963; affd 173 A. D. (X. Y.) 996. Where large crowds con- gregate about the entrance of a moving picture theatre to such an extent as to cause at times congestion of travel in front of the building and where those attending a church in the im- mediate vicinit}' of the theatre arc called ujmju to pa.ss and re- pass it, an injunction may be granted restraining the operation of the theatre, on .Sundays, as a nuisance. ^ Cronin v. Bloewecke (1899), 58 X. J. E(i. 313; 6:3 At). 605. Defendants conducted bjisel)all games at their park. A number of balls fell u|K)n plaintilT's premis»>s and persons tre^spa.ssed thereon to recover the balls. Injunction 256 THE LAW OF MOTION PICTURES Section 81. — Franchise and booking agreements. Many plays are booked tlu'ougli so-called "booking circuits." The chcuit company makes agreements with the owners of theatres, whereby it agrees to furnish them with companies of players together with the plays cus- tomarily produced at such theatres, and the theatre proprietors agree to pay to the performing companies a specified compensation, which is usually a percentage of the gross receipts. The theatres are known as the circuit. The circuit company thereupon enters into 'agreements with managers of performing companies, the agreements being kno\\Ti as "franchises," in which it agrees to secure bookings for the managers' productions. The circuit company is the agent of the theatre owner for whom it arranges bookings.'^ This becomes important on the question of suit. WTiere the owner of the theatre has breached the terms of the contract and has refused issued restraining defendants from distinct from that suffered by- permitting ball games to be con- him in common with the pubUc. ducted in such manner as to ''» hilerslate Amusement Co. v. annoy and injure plaintiff, either Albert (1913), 161 S. W. (Tenn.) because of the driving or dropping 488. Plaintiff operated a book- of balls upon the premises or by ing agency in Chicago. Defend- ixirmitting the collection of idle ant operated a theatre in Ten- or disorderly persons in the nessee. Plaintiff booked certain • streets. acts for defendant for which the The rule of law is that Courts latter became indebted to it in of iMiuity will restrain an existing a sum of money, or threatened nuisance at the Held tliat jilaintiff was the suit of the people by their attor- agent of the def(Mulant to book ncy general, or of a private in- these acts for which it was to dividual who sustains spoci.-d receive SIO a week and 5% of the and i)eculiar injury therefrom amounts paid to the troupes. THEATRE A NUISANCE 257 to pay the manager of the company whose play has been booked for his theatre, he may be directly sued by the manager. There is privity of contract between the par- ties, and the manager may allege the making of the contract, through the medium of the circuit company, al- though in fact one contract was made between the man- ager and the circuit company, and another between the circuit company and the theatre owner. A burlestiue booking circuit which opened a theatre in I)roximity to the plaintiff's theatre and thereby forced it to shut down, was held not guilty of conspiracy, since it had done notliing illegal, and its motives were imma- terial.^^ A booking agent will not be compelled to specifically ])erform its contract and book through its offices acts for a theatre proprietor, as that would reciuire the con- tinuous supervision of the court, and a court of equity will not assume such a duty.^° ^^ Rosenmu v. Empire Circuit motive which induced such act (1909), 131 A. D. (X. Y.) 429; was nmlicious." 115 N. Y. Supp. 511. Action by *^ Hammerslein v. United Book- })luinti(T as Receiver of the Court ing Offices (1915), N. Y. Law Street Theatre for a conspiracy Journal, Nov. 4. Defendant to bring about tlie ruin of that had entered into an agreement theatre by the defendant which with a number of owners and controlled a burlesque booking managers of vaudeville theatres circuit. whereby defendant agreed to Held untenal)le as defendant act as booking agent for the had merely done lawfully the managers and the managers things which it had a right to do. agreeil to book through defend- "If the means employwl to do ant exclusively. The managers a certain act are legal and lawful, agnn'd with each other that it is of no consequence that the during the term of the agreement 258 THE LAAV OF MOTION PICTURES Booking agents and circuit companies have been held not to be engaged in interstate commerce.^ ^ A booking agency or circuit company contract must be construed in the light of reasonableness, so that in a con- tract in which territory was to be set aside before a day certain, it was held that time was not of the essence, and the defendant could later set aside such territory or route.^^ Section 82. — Benefit performances — private exhibitions. It is a common practice for clubs, lodges and societies to arrange with theatre owners for benefit performances, the proceeds of which are as a rule donated to some worthy they would not become directly or indirectly interested in the operation of any vaudeville thea- tre other than their own in the City of New York except as ])rovided in the agreement. Plain- tiff became in effect a party to the above agreement by a subse- quent agreement made between itself and other parties and the defendant. Plaintiff in violation of his agreement became in- terested in another theatre and defendant thereupon refused to book any acts for phiintiff's theatre. A motion was made to compel defendant to specifically perform, to wit: to book acts for plaintiff. Th(! motion was de- nied, among other reasons, be- cause the court would not assume the duty of requiring the doing of acts which would require its continuous supervision. ^^ Interstate Amusement Co. v. Albert (1913), 161 S. W. (Tenn.) 488. ^■^ Perky v. Shvbert (1907), 121 A. D. (N. Y.) 786; 106 N. Y. Supp. 593. Where tlie parties, theatrical managers, contracted for a certain territory for book- ings, defendants to set aside a certain territory or route prior to May 1st of each year, it was held nevertheless that time was not of the essence of the con- tract, and that there was no evidence of a breach. BKNEKIT PtUFOUMANCEK — PRIVATE KXHIHITIONS J.V.J charity. As those perfonnaiices are promoters the right to violate the law. But this was clearly an ''outdoor" sport or exhil)iti<)n, and there was no exemption in the New York statutes for that kind of entertainment. A performance of that nature is not taken out of the statute l)ecause the expenses of the hou.se are paid. The test is whether the proceeds derived from the sale of tickets are devoted to charity."' "\Miere a benefit performance had been scheduled to take place, and there was a breach by the theatre owner, the association giving the performance could not reco\er where it had suffered no damage. '^■'' *^ Kodblc V. Woods (1910), l.V.) benefit performance at its theatre. N. Y. Supj). 704. SiihscMjuently, and after plaintilT ^H'omuiotnviidlk v. Alcxaiukr liad sold many of the tickets, (1001), ISo Mass. 551; 70 N. IC. defendant rescinded the contract. 1017. Held, that .since plaintiff hatl ^^Jackcl V. Nixon & Zimmcr- refunded all the moneys for the man (liK)7), ,33 Pa. Sup. Ct. 30. tickets so purchased of it, it PhiintilT, an association, con- could not recover, tracted with defendant for a 260 . THE LAW OF MOTION PICTURES "Proceeds" derived from a benefit or charitable per- formance have been defined as the balance remaining after deductions for the expenses necessarily incm-red for the giving of such a performance.^^ Unless specifically exempted by statute, a charitable organization must secure a theatrical Ucense and pay the required tax before giving pubhc exhibitions.^^ It is not a pubHc exhibition for a motion picture com- pany to exhibit its reels to dealers by running them off for the purpose of renting or leasing the same.^^ Section 83. — Interstate commerce. In New York it has been squarely held that the theat- rical business does not constitute "interstate commerce" within the meaning of the ^ ' Sherman anti-trust law. ' ' The fact that theatrical companies travelled from state to ^ Commomvealth v. Alexander ^M. G. v. Vitagraph Co., Ltd. (1904), 185 Muss. 553; 70 N. E. (Eng.) (1915), 1 Ch. 206; 13 L. G. 1017. R. 148; 84 L. J. (Ch.) 142; 31 "CiV// of Mobile V. Kicman T. L. R. 70; 112 L. T. 245; 79 (1910), 54 So. (Ala.) 102. J. P. 150. The term " E.thibUion" Sfwlley V. Bethell (Eng.) in Section 1 of the Cinemato- (1883), 12 Q. B. 1). 11. Defend- graph Act 1909, refers to the ant who had a private house cxliibition of cincinatograph pic- fitted up as a private theatre tures in phices of \)uh\u; enter- turned it over to another who tainmcnt, and does not inchide a advertised performances therein case where dealers in the exercise for the benefit of a School for of tlieir trade of selling or renting Dramatic Art. Ildd that de- films merely show tiieir lilms l)y fendant was guilty irrosi)ective ruiming them tlirough their ma- of the fact that the performance chines in the ])rescncc of one or was for charity. more customers. Sec also Section 100. BANKRUPTCY 261 state giving grand opera made no difference in tliis re- spect.**'' But iu lUincns the court has intimated that the sending of llieatrical troupes from one state to another is interstate commerce.^" The business of a booking agent has been held not to constitute interstate commerce, even where it booked acts in various states throughout the Union.^' And the making of contracts in one state for the pro- duction of plays in another has been held not to violate a statute forbidding foreign corporations from doing business in the latter state without first complying witli the statutory requirements.^- In United States v. Motion Picture Patents Co., how- ever, it was held that the shipment f)f motion picture films from one state to another constituted interstate commerce.^'' Section 84. — Bankruptcy. It has been held that a distributor of motion picture films is not a "trader" within the m(>aning of the Bank- *^ Melropolitan Opera v. Ham- ''■ A. II. Woudx Produclion Co. imrstcin (l'.)14), UVI A. D. (N. Y.) v. Chicago, Cinnnnati, dc, R. R., fiOl; 147 N. Y. Supp. 532. 147 111. App. 'iGH. See in this «" Woods Production Co. v. Chi- connection: Inlcmlale Ammeineid cago, He, R. R. (1909), 147 111. Co. v. AlbeH (1913), Kil S. W. Ai)p. 508. (Tenn.) 488. »' Interstate Aimixement Co. v. »' United States v. Motion Pic- Alhert (191.3), IGl S. W. (Tenn.) litre Patents Co. "(UJlo), 2-2.-) 48S. Here plaintitT oiM-ratiHl u Fed. (D. C.) 800. See Sec- bookinR iisencv in ("hicjiRo and tion 134, for discussion of this (lefcndnnt ll again, is of no imporlanco. This is a ni(M-e incident, and not the principal business of the bankrupt." BANKRUPTCY 203 that a corporation cngaf^cd in giving theatrical per- formances could not avail itself of the benefits of the Bankruptcy Act. It has, however, been held in a state court, that one conducting a motion picture business was engaged in a "trade" or "profession" and entitled to certain exemp- tions thereby on execution and le\y.^'' .Vn actor is a wage-earner, and as such entitled to a special preference for salary due him from his bankrujjt employer.^^ A license agreement is personal and does not pass to the trustee in bankruptcy .^^ ^Campbell v. Ilonakers (1914), 166 S. W. (Tex.) 74. The ques- tion wjus wlicther the property used by appolhuit in conducting his motion picture business was exempt from levy and sale under execution, as "tools, apparatus and books belonging to any trade or profession." Held that an Edison machine and an I'xiison Perfecting Kinetoscojic Manu- facturing sale machine and metal machine outfit were exempt. But the chairs u.sed in the theatre wer(> nut exempt. Held further that a |M'rson engaged in the mo- tion picture industry was follow- ing a trade. But see: Speakc v. Poiccll (Eng.) (1873), L. R. 9 Ex. 25, where it was held that the occu|)ation of an actor was not a " traile." •^ Winter German Opera, Ltd. (Eng.) (1907), 23 T. L. R. G62. Held that under the Preferential Payments and Bankruptcy .\ct of 1888, the artists of the com- pany were considered "servants" and that their salaries up to £.^0 W(juld have preferences in the estate. Sec al.so: Thomas v. Gatli (Eng.) (1906), Times, Feb. 1 and 2. '■^ In re Kay-Tee Film Exchange (1911), 193 Fed. (D. C.) 140. The Lubin Co. had lea.-^tnl a number of films to the bankrupt more than four months prior to the adjudication. On ix'tition for reclamation the referee held that the trustee had no title in such films and decreed that they be given up to the petitioners (at p. 149). 264 THE LAW OF MOTION PICTURES Section 85. — Libel. To accuse a theatrical manager of fraud, insolvency and embezzlement was held a Hbel.^^ And to include statements in a newspaper that a theatrical production was immoral when not so in fact was also held to be Ubelous.^"° A statement that a theatrical manager had "So far as this proceeding is concerned it is one to recover the identical property belonging to the petitioner and traced into the hands of the trustee in bank- ruptcy. The petitioner never intended to sell, and had no right to sell, and did not sell s^id moving pictures or reels to the bankrupt." Day V. Luna Park (1912), 174 111. App. 477. A bar concession in an amusement park is personal and does ncjt pass to the trustee in bankruptcy. For detailed discussion, sec Section 14. 99 Fn/ V. Bennett (1863), 28 N. Y. 324. A charge that a theatrical manager has designed to cheat and defraud the sub- scribers to an opera by a fraudu- lent discontinuance of perform- ances, that he had become insolvent at Pliihidclpliia and was about to becoiuf! insolvent at New York, tliat he had mis- appropriaUid tlie moneys received from subscribers, and tluit gam- blers patronized iJcrfDrmunces given by him was held to con- stitute a libel. See also: Gott v. Pulsifer (1877), 122 Mass. 235. The plaintiff brought this action because of statements made in defendant's newspaper concerning a scientific curiosity belonging to plaintiff. Gray, C. J., said: "This action is not for a libel upon the plain- tiff, but for publisliing a false and malicious statement con- cerning his property, and could not be supported without an allegation and proof of special damage. The special damage alleged was the loss of the sale of the plaintiff's statue to Palmer. Evidence of the value of the statue as a scientific curiosity was therefore rightly rejected as immaterial. 100 Merivale v. Carson (Eng.) (1888), L. R. 20 Q. H. Div. 27r); 58 L. T. N. S. 331. Fay v. Harrington (1900), 17() Muss. 270; 57 N. E. 369. Plain- tiffs, proprietors of a th(>atre, brouglit this action for libel LIBEL 20') forced out one of his copartners and had, together with the other surviving partner, appropriated the entire profit of the brains and capital of their associate to themselves constituted an actionable libel.'"' When the articles charged plaintiffs with discriminating unfairly against the Irish population, in their business of giving entertainments, they were held not actionable with- out proof of special damage. '"- A motion picture company w^as h(?ld to libel the ])lain- tiff, the owner of a shop, where a "White Slav'e" picture against the publisher of a news- paper. //(■/'/ that where the ar- ticles eliarffed |)hiiiitifTs with giv- ing!; imleceiit exliil)iti«)iis, evideiice showing tliat the costumes worn by the dancers at the performance which (Icfeiulant a.ssertetl was indecent, were siinihir in style to those usually worn by young women dancing on the stage at ]iublic performances, was properly exclude* 1. »"" Khur V. \nr York Presft Co. (1010), VM \. 1). (X. Y.) GSG; 122 X. V. Supi). 437. Plaintiff contended that defendant jjub- lished false statements concern- ing him because of the with- drawal by him of advertisements of his theatrical productions. Th(^ article contained a st^vto- nient to tlie effect that plaintiff had forced out of his business one of hik co-partners and that he and the other rerfiaining partner had seized "the whole profits of the l)rains and capital of their associate for tliemselves" — Held libelous per .se. The court said: "Although this article does not directly re- late to acts of the plaintiff in his business and profession of pro- ducing and l)!i('lu>(l Box Co. (1002), 171 N. Y. 5.38; 64 the conclusion thut plnintilT had N. E. 442. Cliicf Justice Parker a Rood cause of action against who wrote the opinion said: defendants in that defendants had IN (;eneral 269 this fjuostion was squarely prosontod. TIktc, one of tho defendants engaged in tlic general niillii»g business, had printed and sold, without the knowledge or consent of the l)laintifT, about twenty-five thousand lithogra})hie prints or likenesses of the plaintiff, which were distributed broadcast and exhibited in various [)laces throughout the country. The hkencss was a good one. Plaintiff, however, claimed that she had suffered great distress and anguish of mind and body, and sought injunction and damages. The Court of Appeals reversed a decision in her favor upon the ground that in the absence of statute there was no principle of the common law which would sustain her cause of action. It was held in England that the sale of picture post- invaded what is called 'a right of privacy'— jn other words tlie ri^ht to Ijc let alone. Mention of sucli a rif^ht is not to be found in B[ack^^tone, Kent or any of the otlier ^rcat commentators uiKjn the law, nor so far as the learning of counsel or the courts in this ca.se have been able to dis- cover, does its existence svom to have been a.s.serted prior U) about tlie year 1S90 when it wjis pre- sented with attractiveness and no inconsiderable ability in the Har- vard Law Review (Vol. IV, page 193), in an article entitled 'The Right of Privacy.'" Ilamj V. Cherry (1909), 73 Atl. (R. I.) 97. Approves of Roberson V. Roclienler Folding Box Co. and reiterates the doctrine that in- dependently of statute there is no such thing as a right of privacy. See also: Murray v. Gast Litho- graphic etc. Co. (1894), 8 Mi.sc. (X. Y.) 36; 28 N. Y. 8upp. 271; Atkiu.wu V. Doherly (1899), 121 Mich. 372; 80 N. \V. 285; Feck v. Tribune Co. (1907), 214 U. S. 185; 29 Sup. Ct. 5.>4; Edisot^ v. Edison Fnhjfonn Co. (1907), 73 N. J. Eq. 13(>; <)7 Atl. 392; Crutchcr v. Big Four (1908), 132 Mo. App. 311; 111 S. W. 891; Hillman v. Star Puhl. Co. (1911), (>4 \Va.sh. 691: 117 Pac. 594. 270 THE LAW OF MOTION PICTURES cards bearing plaiiitiff' s likeness was not actionable; - that a physician could not as an individual control the use of his name in connection with advertisements,^ and that a pugilist could not enjoin the exhibition of a motion picture showing him defeated in a contest.^ Not only was the individual helpless, under the common law, but his parents, guardians and personal represent- atives were likewise without remedy.^ ^Corelliw Wall (Eng.) (1906), ^Murray v. Gast Lithographic 22 Times L. R. 532. Unless the etc. Co. (1894), 8 Alisc. (N. Y.) 36; matter complained of was libelous plaintiff could not maintain in- junction independently of statute, where defendant placed her pic- tures on post-cards with alleged scenes of her life. See also: Kunz v. Bosselman (1909), 131 A. D. (X. Y.) 288; 115 N. Y. Supp. 650, where de- fendant was held liable for a similar offense under the Civil Rights Law. ' Clark V. Freeman (Eng.) (1848), 11 Beav. 112 and Dock- rell V. Dou{/all (l<:ng.) (1898), 78 L. T. N. S. 840, 80 L. T. R. 556, involving the right of a physician to the use of his name where an ad- vertisement had been issued; and Mackenzie v. Soden Mineral Springs (1891), 20 Abb. N. C. (N. Y.) 402; 18 N. Y. Supp. 240. * Palmer v. National Sportiiig Chih (Eng.) (1906), C'h. I)., Nov. 16. 28 N. Y. Supp. 271. A father was held to have no cause of action against one for publishing the photograph of his daughter. But where the picture or article is libelous and reflects on the other members of the family, a cause of action arises as to each. Fenstermaker v. Tribune Pub. Co. (1895), 12 Utah, 439; 43 Pac. 112. Schuyler v. Curtis (1893), 24 N. Y. Supp. 509; rev. 147 N. Y. 434; 42 N. E. 22. The court below granted injunction at the suit of relatives of a decedent, restraining the defendant, a volun- tary association, from making, .setting up and exhibiting in pub- lic a statu-e of the deceased. The Court of Appeals reversed, holding that there was no in- vasion of the right of i)rivacy. Sec: Marks v. Jaffa (1893), 6 Misc. (N. Y.) 290; 26 X. Y. Supp. 908. IN GENERAL J/ 1 As a result of tlic Kubei\s(jn dccisicjii llie Lt'f^iftlaturc (jf New York in 1903 passed a law designed to meet that situation, which law was incorporated in the Civil Rights Law '■ and came up for construction Ijy the same court in 1908. It was there held to be constitutional, but the court at the same time declared the Act to be purely prospective in its nature, and that such law did not limit the right of one to use the portrait of another which had been acquired prior to the enactment of the statute." Later decisions have discussed the right to sue for a violation of this statute in law and in ecjuity.'' In a ca.se wherein a picture was made purporting to show the evils 6Lu\vs of New York, 1003, Chaj). 132. ' Rhodes \. Spcrry & Hutchinson (ll)OS), 193 N. Y. 223; 85 N. E. 10'J7; aff'd 220 U. S. 502; 31 Sup. Ct. 490. "It Is wholly prospective in its operation, and, therefore, wholly good . . . and docs not apply to i)reviously acquired i)ictures at all. Upon portraits the ownership of which was in others at the time when the act took elTect its provisions are inoperative. Such pictures the owner is still at hherty to use for advertising or trade purposes without being held thereby to have been guilty of a crime or to have committed a tort. Ilis l)n)i)erty rights therein are un- alTected by the statute." » Jacob V. Schiff (1913), U9 X. Y. Supp. 273. Suit wa.s brought to restrain the use of plaintiff's portrait. Held that the main remedy was injunction with damages as incidental relief. "It may be said that the whole statute (Civil Rights) undoubt- edly was passed with a view of adording to a plaintiff a right to a jury trial in all the relevant issues, if he elects to pursue his remedy at law; but the bringing of the suit in equity, with rehance upon recovery for damages as inciilental thereto, is either a waiver of the right to a jur}' trial, or, perhaps, more strictly speak- ing, the abandonment of an in- tention to stM?k that mode of trial." 272 THE LAW OF MOTION PICTURES of the traffic in vice, plaintiff's factory was photographed exhibiting the firm name upon it. He brought suit on two causes of action, one for hbel, and one for a violation of the statute. The court sustained a demurrer on the second cause of action, but held that the exhibition of plaintiff's factory in which a large number of girls were employed, in connection with a picture of that kind, might reflect seriously upon his good name, and overruled a demurrer as to the first cause of action.^ The English courts, while refusing to recognize any right to protection in the person, have occasionally pro- tected the individual in his property rights, if the same were affected by an exhibition or dissemination of this kind, and they granted injunctions on the theory of a breach of a trust relationship.^" This doctrine has been followed in some cases by our Federal courts and in some of the states. ^^ Some of the American jurisdictions have taken issue 9 Merle V. Sociological Research 149 Ky. 506; 149 S. W. 849, a (1915), 166 A. D. (N. Y.) 376; photographer was employed by 152 N. Y. Supp. 829. the parents to photograph the ^"Pollard V. Photographic Co. dead body of a deformed child. (Eng.) (1888), L. R. 40 Ch. Div. He thereafter copyrighted the 345, in which a photographer was same and published it. Held, restrained from putting in his that he was liable in damages window a photograi)h of a patron, on the theory that it constituted See also: Boyil v. Dagenais a l)reach of a trust relationship, ((.'an.) (1897), liap. Jud. Quebec, See also: Atkinson v. Dohaiy lies. 66. (1899), 121 Mich. 372; 80 N. W. ''Corliss V. Walker (1893), 285. 57 Fed. (C. C) 4.34; 64 Fed. See in this connection: Vassar (('.(".) 280. College v. Loose Wiles (1912), In Dougla.H v. Stokes (1912), 197 Fed. (D. C.) 982. IN GENKUAL 2r.\ with tlic rule laid down by the Iloherson casp and liave granted luuteclion ''on the seorc of it fthe right to dis- play one's likeness) being a property right of material profit." '2 ^■'Mundcn v. //am'.s (1911), 15;} Mo. App. (552; 134 S. W. 1070. The court hokl.s that tlic right of privacy exists independent of any statute; that one whose picture is being cxliibited may restrain such u.sc tiicrcof or sue for dam- ages in an action at law. In taking issue with the doc- trine laid down by the prevailing opinion in Jiobtrsun v. Rochester Folding Box Co. (1902), 171 N. Y. 538; 64 N. E. 442, the court said: "We therefore conclude that one has an exclusive right to his picture, on the score of it being a property right of material profit. We also consider it to be a prop- erty right of value in that it is one of the modes of securing to a person the enjoyment of life and the exercise of liberty; and that novelty of the claim is no objec- tion to relief. If this right is, in either resjK'ct invaded, lie may have iiis remedy, either by ro- straint in e(iuity, or damages in an action at law. If there are s(x>cial damages, they may be stated and recovered; but such character of damages is not nec- essary to (lie action, since general damages may be recovered with- out showing a specific lo.ss; and if the element of malice appears, as that term Ls known to the law, exemplary damages may be re- covered." Edison v. Edison PoUjJorm Co. (1907), 73 X. J. Eq. 136; 67 Atl. 392. This ca.se also holds that there is a projK^rty right in one's photograph, and that where de- fendant was advertising Mr. Edi- son's name and picture without his consent , he could restrain such acts. See also: Von Thadorovich v. Franz Joseph Beneficial Asso. (1907), 154 Fed. (C. C.) 911; Vnmicrbilt v. Mitchell (1!>06), 71 N. J. Eq. 632; 63 Atl. 1107; Fostcr-Milburn v. Chinn (1909), 134 Ky. 424; 120 S. W. .364; Mackenzie v. Sodcn Miiural Springs (1S91), 20 Abb. X. C. (X. Y.) 402; 18 X. Y. Supp. 240; Francis v. Flynn (1885), 118 U. S. .38,5; 6 Sup. Ct. 148. Pavesich v. Xew Englatul (1904), 122 (Ja. 190; 50 8. E. &S. This case contains an excellent sum- 274 THE LAW OF MOTION PICTURES Section 87. — When liable under statute. For a leading case illustrating the application of the Civil Rights Law to motion pictures Binns v. Vitagraph Co. is of great interest." There the defendant released a film which purported to depict the story of a shipwreck. Plaintiff, although he had never posed for the picture nor authorized the use of his name therein, was widely ad- vertised as the hero. Although it was claimed that the actual photograph of the hero in the story was not that of plaintiff, the court nevertheless restrained the use of the film as coming clearly within the statute. A newspaper was held to violate the plaintiff's rights m publishing a photograph after a severance of business rela- tions between them; " and in another case defendant was niary of the law relating to the right of privacy. , 13 Binns v. Vitagraph Co. (1913), 210 N. Y. rA; 103 N. E. 1108. "A picture within the meaning of the statute is not necessarily a photograph of the living person, but includes any representation (A such person. The picture represented by the defendant to be a true picture of the plaintiff and exhibited to the I)ub]ic as such, was intended to be, and it was, a representation. of tlie plaintiff. Tlu; defendant is in no i)osition to say that the pif'ture d(jcs not represent the plaintiff or that it was an actual j)icture of a jKirson made up to look like and impersonate the plaintiff." In this connection see also: D'Altomonte v. A''. Y. Herald (1913), 154 A. D. (N. Y.) 453; 139 N. Y. Supp. 200; modified 208 N. Y. 596; 102 N. E. 1101. ^* Bowden v. Amalgamated Pic- torials, Lim. (Eng.) (1911), 80 L. J. Ch. 291; 1 Ch. 3S(); 103 L. T. 829. Where plaintiff supplied photographs to a newspaper at agreed rates, and after he severed his connection with it, the news- paper continued to jMiblish jjhoto- graphs of plaintilT, some copy- righted, and some uncopy righted, Ifrlil that the termination of the contract amounted to a with- WMKN LlAUl.K INDKU srATUTK 27rj not permitted to advertise his lengthy association in business with i)huntifT.''^ Where defendant, without consent, used the name of Dr. diaries W. Eliot for a series of l)ooks, calling the same "Dr. Eliot's Five-foot Shelf" and "Dr. Eliot's Set" it was held that he was violating the statute. '° The New York statute i)ro\i(les that the consent of the })erson whose name or ])icture is used must be ob- tained in writing, and an oral authorization is insufficient.'' drawalof all open offers and plain- doinurrable. The authorization tilT could enjoin both the publi- cation of the copyrighted and uncopyrightcd photographs. See also: Man.sdl v. Valley Prinling Co., Lim. (Eng.) (ll)OS), 77 L. J. Ch. 742; 2 Ch. 441. See in this connection: lliUinau V. Star Pub. Co. (1911), 64 Wash. 695; 117 Pac. 594. '^Thompson v. Tillford (1913), 152 A. D. (X. Y.) 92S; 137 N. Y. Supp. 523. '•/iVtW V. Jones (1910), (>() Misc. (X. Y.) 95; 120 X. Y. Sup]). 9S<); alT'd 140 A. D. (X. Y.) 911; 125 X. Y. Sup|). 1119. "WynU V. McCrecnj (190S), 120 A. 1). (X. Y.) 0.')0; 111 X. Y. Supp. SO. Plaintiff, an actres.s, had orally authorized the de- fendant to sell and make any u.se it .saw fit of her photograph. Ilfld, that where plaintiff brought an action undj'r the Civil Rights J^aw, a defense of that kind was .should have been in writing. Furd V. Ilcancy (1910), X. Y. Law Journal, July 22, Bischoff, J. "Plaintiff moves for an injunc- tion pendente lite restraining de- fendant from manufacturing the positive print from a certain negative motion picture of the plaintiff in their ix)sse,ssion , and from exhibiting or producing the same in violation of the rights claimed bj' her under sections '^ and 51 of the Civil Rights Law. It is undisputed that the defcnd- ant.s intend to use the .said pic- ture for the purposes of trade, and it is admitted by them that tliev have not obtained the writ- ten consent of the plaintiff to such use, as provided for in said sections. The defendantvS, by certain mesne transactions, dulv aciiuired said negative, originallv owned i)y a certain Cameraphonc Coujpany, for whom the plaintiff 270 THE LAW OF MOTION PICTURES posed and to whom she gave her consent to the exhibition of said picture for one year. The said agreement was entered into by the plaintiff with said company, under date of 9th of October, 1908, and granted the right to said company to exhibit the pic- ture so taken for the year ending on the 2nd of November, 1909. The said agreement is in the form of a letter written on behalf of the said company to the plaintiff, but is not signed by her. There can be little doubt, however, that the acceptance of the latter and the subsequent posing by her pursuant to the terms thereof should be regarded as a written consent within the statute. The defendants admit in the brief filed in their behalf that the right given to said company was limited to one year, but state that they were unaware of the existence of such agreement at the time of their purchase, and therefore cannot be bound by its terms. They assert that they arc bona fide purchasers for value, and that the rule which is applied upon the purchase of personal property, that the purchaser must have notice that ho buys with only a qualified right of use, if such is the fact, should prevail and prevent the dcfotidaiits being bound by some special and secret agreement made by the plaintiff with the Cameraphone Company. The difficulty with such a con- tention is that it does not meet the point made by the plaintiff that the said statutory consent has not been obtained. The defendants, in ordinary prudence, were charged with the dutj'' of ascertaining, before they made the purchase, as to whether the latter would involve the right to use the picture for purposes of trade, notwithstanding the pro- visions of the Civil Rights Law. If, because of omission to make due inquiry in that respect, embarrassment exists, they have no one but themselves to blame. The further circumstances that the plaintiff was an actress, of more or less renown, and that therefore her j)icturc would have value as being of some public interest, might well have put the defendants upon inquiry to ascer- tain whether the apparently valu- able rights they intended to ac- Khe.'lished and circulated for commercial pur- poses in connection with its liusiness a booklet or magazine, and in the July number exhibited on one of its pages, 'in lulornment thereof,' the iwrtrait or picture 280 THE LAW OF MOTION PICTURES statute gives the right of action to "citizens" alone, a failure to allege the citizenship of the plaintiff makes the complaint demurrable. ^^ of plaintiff without his consent. The pubUcation of a person's por- trait is not in itself illegal. Rober- son V. Rochester Folding Box Co., 171 N. Y. 538. To come within the statute the use of the portrait must be for advertising purposes or purposes of trade. In Jeffries V. N. Y. Evening Journal Pub. Co., 124 N. Y. S. 780, it was held that the publication of a portrait in a newspaper in connection with the biography of the person was not within the statute; that a picture is not used for advertising purposes unless it is part of an advertisement, and that the pur- poses of trade refer to commerce or traffic and not to the dissemi- nation of information. There is nothing in the complaint to show either expressly or by fair intendment that the picture was used as part of an advertisement or for purposes of trade, com- merce or traffic. It is alleged to have been inserted on the top of the page 'in adornment thereof.' If inserted for adorn- ment merely, or for any other jjurposo not specified in the stat- ute, j)l!iintifT cannot recover. It is stated in liinns v. Vilagrapli Co., 210 N. Y. 55, that "the statute is very general in its terms, but when a living person's name, portrait or picture is used it is not necessarily and at all times so used either for advertising purposes or for the purposes of trade. The statute is, in part at least, penal, and should be construed accordingly. So con- strued, and also construed in con- nection with the history of chap- ter 132, Laws of 1903, which was enacted at the first session of the Legislature after the decision in the Roberson case, it does not prohibit every use of the name, portrait or picture of a hving person." That its use was for one of the purposes enumerated cannot be assumed; it must be alleged and proved." See also: Merle v. Sociological Research (1015), 100 A. D. (N. Y.) 376; 152 N. Y. Supp. 829. ^''Fuller V. McDermott (1904), 87 N. Y. Supp. 536. See also: Lcris v. IJitchkock (1882),10(1). (:.)Fed. 4; U.S. v. Taylor (1880), 3 Fed. (C. C.) 563; Messenger v. State (1889), 25 Neb. 674; 41 N. W. 638. WHEN NOT LIABLE VNDEU STATUTE 2S1 Tho Civil Iii^;lits Law as enacted in New York was not intended to jjrevent tlie dissemination of news, and it was held that the defendant newspaper was not nal)le for the pubhcation of plaintiff's name and pieture in a sinj^le issue; to hold otherwise would be tantamount to nuizzliuK the press.'-" It seems that one may be estopped from in\'oking the aid of the statute, as where he has lent his name to a busi- ness in which his name or pictiu'e is being advertised, and has permitted the owner of the business to expend large sums of money to exploit such name or picture,-* or sells the business and stock of a corporation ])earing his name.-'' " Moser v. Press Pub. Co. (190S), 59 Misc. (N. Y.) 78; 109 N. Y. Supp. 9G3; Colyer v. Fox- Pub. Co. (1914), 1G2 A. D. (N. Y.) 297; 140 N. Y. Supp. 990; Jef- fri4;s V. N. Y. lu'ciiing Journal Pub. Co. (1910), 67 Misc. (X. Y.) 570; 124 N. Y. Supp. 780. 28 Wendell V. Comluil Mach. Co. (1911), 74 Misc. (N. Y.) 201; 123 N. Y. Supp. 758. Where one who is in another's employ volun- tarily poses for a portrait to be used in liis master's business and with knowlodRo that he was to make its j)roscnt use thereof, he may not, after the latter has in- curred ox|)enses in its use to build up his business maintain an ac- tion under the Civil Higlits I^iw upon the termination of the em- ployment, to restrain tho further use of his portrait for advertising purpo.ses. Wyall v. McCreery and Wyatt V. Wanamaker (1908), 126 A. D. (X.Y.) 050; HI N. Y. Supp. 80, distinguished upon the ground of i)laintitT's infancy, the infant not being estopped to invoke the protection accorded under the act. Sec also: Almiiui v. Sea Beach R. Co. (1913), 157 A. D. (X. Y.) 230; 141 N. Y. Supp. 842. But see: Bowden v. Avudgatnatetl Pic- torials L'mld (Eng.) (1911), 103 L. T. 829. "ir/«7e V. While (1914), 160 A. 1). (X.Y.) 709; 145 X.Y. Supp. 743. While this case holds tiiat one selling his right to a cor^xtra- tion selL-s therewith the right to 282 THE LAW OF MOTION PICTURES In no case will the court grant relief pendente lite where the plaintiff's right is involved in doubt.'^° Section 89. — When use of name or picture is libelous. It frequently happens that the use of the person's name or picture is not such as may be restrained under the Civil Rights Law, but that such use will amount to a libel. In that case equity will not restrain, but the plain- tiff may recover damages at law.^^ Defendant exhibited a ''Wliite Slave" film in which plaintiff's factory was depicted as being a rendezvous for vicious characters. It was held that this amounted to a libel, although it was not a violation of the Civil Rights Law.^2 A publication of plaintiff's portrait in conjunction with the use of his own name where in doubt the court will not grant the corporation had borne it, it an injunction pendente Hte con- seems to us that this rule is taining the same relief that would limited by the rule that where the ultimately be granted if the skill and personal qualities of the plaintiff succeeded upon the trial vendor are peculiarly valuable of the action." as in the case of an artist, musi- " Bullcrkk Piibl. Co. v. Typo- clan, actor or director, a transfer graphical Union (190G), 50 Misc. of the name is not permissible (N. Y.) 1; 100 N. Y. Supp. 292. as it would tend to work a fraud A court of equity will not enjoin upon the public. See Blakcly v. a libel even where the plaintiff Sousa (1900), 197 Pa. 305; 47 by reason of his inabihty to prove Atl. 286. special damage has no remedy at ^"Bulterick Pvhl. Co. v. Typo- law. (See cases cited therein.) graphical Union (1900), 50 Misc. Sec also: Section 12. (X. Y.); 100 N, Y. Supp. 292. '^■^ Merle v. Sociological Re- " Where plaintiffs' right to the .search (1915), HiO A. I). (N. Y.) ecjuitable relief sought is involved 376; 152 N. Y. Supp. 829. WHEN USE OF N'AMK Oil I'KTrUK IS I.IUKI.Ors 2>Q a wliiskey advert isonient was licld to he libelous, and defendant was bound to resi)ond in damages even tliouj^h it had made an innocent mistake.^' And a newspaper was held liable for the publication of a picture of i)laintifT o\er an article which was plaintiff.^' "PecA: V. Tribune Co. (1908), 214 U. S. IS.-); 2«) Sup. Ct. o.-)4. PlaintilT'.s portrait wa.s publislicd ill defendant's newspaper in con- nection with an adverti.semeiit of wliiskey. »Sonie name other than plaintifT's was printed at the foot of the picture. The court held that the publication of plaintiff's portrait in connection with such an ailvertisement with the statement made therein that plaintiff liad drunk the whiskey was libelous. It was further hekl that it was innnaterial whether the publication was caused through an innocent mistake. The court cites in support of the jjroposition that it is innnate- rial whotiicr tlie error is causetl iimocently. King v. WoodJalL (Eng.) Lofft. 776, 781; Hearne v. SUmrll (Eng.) 12 A. and ]•:. 719, 720; Shi'jihedidv. ]yhil(ikTr (Eng.), L. R. 10 ('. P. 502; Clark v. Xorth American Cb. (1902), 20;i Pa. St. 346; 53 Atl. 237; Moraase v. Bruchn (1890), 151 Mass. 507; 25 N. E. 74. true of another but not of See generally: De Sandn v. Xew York Herald Co. (1904), .S.S A. D. (X. Y.) 492; 85 N. V. Supp. Ill; Clary-Squire v. Presa Publ. Co. (1901), 58 A. D. (X. Y.) .362; 6.S X. Y. Supp. 1028; Farley v. Ercning Chronicle Publ. Co. (1905), 113 Mo. App. 216; Emer- son V. Nash (11X)5), 124 Wi.sc. 369; 102 X. \V. 921; Wandl v. HearsCx Chicago American (1906), 129 Wis. 429; 109 X. W. 70; Foster Milburn Co. v. Chinn (1909), 134 Ky. 424; 120 S. W. 3&4; Morrison V. Smith (1904), 177 X. Y. 360; 69 X. E. 725; Hart v. Woodbury Dei-mat. Institute (1906), 113 A. D. (X. Y.) 281 ; 98 X. Y. Supp. 1000; Taylor v. Hearst (1895), 107 Cal. 262; 40 Pac. 392; Pair- sich V. Xew England (1904), 122 Cla. 190; .50 S. E. 68. " Farley v. Ercning Chronicle Co. (1905), 113 Mo. App. 210; 87 S. W. 565. Rose Ball v. The Tribune (1905), 12,3 111. App. 235. Where de- fendant's iu'ws|)apcr iiriiitcii an article and picture, the likeuesd 284 THE LAW OF MOTION PICTURES In one case it has been held that where the libel pub- lished related to the family as a whole, a cause of action arose to each member of the family.^^ Section 90. — Weekly news motion pictures. The issuance of motion pictures as ''Weekly News" wherein are depicted the current events of the day, has become a regular feature of several of the larger producers. The scenes are taken from the actual happenings, and are reproduced without any embelHslmients or changes whatsoever. The position taken by the motion picture producers is that their "Weekly News Service" has become one of the means of disseminating news, and is to all intents and pur- poses a newspaper with all the rights and privileges of the press. They contend that since newspapers are not pro- hibited by the Civil Rights Statutes from printing and publishing the hkenesses of persons ^^ they as well have the being that of plaintiff, but the photographed and her picture article referring to one as "young printed in defendant's magazine, composer secured morphine late "When the statute was en- in the night of her dcatli," relat- acted originally in 1903 the cus- ing to another person, held a torn of publishing in papers the question for the jury. portraits of individuals who were 36 FcnMcrmaker v. Tribune Pub. distinguished in their activities Co. (1805), 12 Utah, 439; 43 Pac. of life was very general. If the 112. Legislature had intended to wii)e '•C'o/yer V. Richard Fox Pnh. out this custom, it could have Co. (1914), 162 A. D. (N.Y.) 297; said so easily in positive lan- 1 U) N. Y. Sujip. 999. The plain- guage." tilT, a professional high-diver, was JiJJrics v. N. Y. Evening Juur- WEEKLY NEWS MOTION PICTURES 2H,') right to reproduce sucli likenesses in tlieir current event services. This question was squarely presented to a court for the first time in the case of IIuTJiiston v. Universal Film Mfg. Co. where the learned justice held that the motion i)icture industr}', as a whole, was a private enterprise and that there were no substantial points of resemblance between the motion picture weekly news service and the newspaper. For that reason the court held that the motion i)icture reproduction and exhibition of a portrait of a prominent woman lawyer, featuring her in a sensational news event, constituted an invasion of her personal rights under the statute. In view of the importance of this decision the entire opinion is given below. ^" It must, however, be remem- bered that it is not a decision of a court of last resort. 7MiZ (1910), G7 MLsC. (X. Y.) 570; ture of a pugilist or president 124 N, Y. Supp. 780. Plaintiff, would bring the case within the u famous jnigilist, .sought under statute where that oi an obscure Section 51 of the Civil Rights and (juiet citizen would probal>Iy Law of N.Y. (formerly Cliap. 132, not; nor docs ho, indeed, object Laws 1903) to enjoin the defend- to his picture, except in couuec- unt from publishing a biography (ion with his biography. Motion in which he was pictured. for tenii-K)rar>' injunction denied." The court there held: "In " Iluinistun v. I'niirrsnl Film my opinion a picture is not used Mfg. Co. (1917), X. Y. Law 'for advertising purpo.ses witiiin Journal, Aug. 10th, Ordway J.: its meaning unless the picture Motion for injunction iM?ndcntc is part of an advertisement, while lite to restrain defendants from 'trade' refers to 'commerce or using and disphiying the plaintiff's traffic,' not to the dissemination name, photograph and portrait of information. According to the in their moving picture fihns, con- plaintiff's construction the pic- trary to the provisions of sectiona 286 THE LAW OF MOTION PICTURES Whether or not it will be *' weekly news service" is in 50 and 51 of the Civil Rights Law. The defendants have organized and are conducting a business called the "Universal Animated Weekly," in which they produce and distribute for use by their customers reels of films of motion pictures, which are photographs of actual current events which they deem of public interest. These reels are produced and distributed weekly and are ex- hibited all over the country in moving picture theatres as soon as possible after the occurrence of the events depicted. The de- fendants furnish with them to their customers posters which are used as bulletins for display outside of the place of exhibition to inform the public what will be shown within. The defendants admit that "this service is mar- keted and sold" by them, and is "a source of substantial profit" to the defendants. In their reel of films used as alK)ve described and called " Uni- versal Animated Weekly No, 77," tlie defendants have included photographs or pictures of the ))laiiitin" accompanied with th(; following "legends:" "Woman lawyer solves Ruth finally determined that the its essence a newspaper, the Cruger mystery. After world- wide search, Mrs. Grace Humis- ton's persistent efforts lead to discovery of high school girl's murder — New York City. Sub. The woman who succeeded where police failed — Mrs. Grace Humis- ton. In Cocchi's cellar — passed by millions — the crime was hidden for months. Thousands attracted to scene of crime." They have also furnished post- ers or publicity matter accom- panying said number of the "Weekly" films, to be used by their customers as above de- scribed, containing in largedisplay type the same words as appear in the main legend above quoted. These reels of films and posters are being used by at least fifty customers of the defendants in moving picture theatres in New York City and other parts of the country. The plaintiff has not given her written consent to this use of her name and picture, and now brings suit for an injunction against such use and for damages. In my opinion this case cannot be distinguished in principle from the case of Jh'niis v. Vilnxjraph Co., 210 N. Y. 51. The defendants WEEKLY NEWS MOTION PICTURES 2H'i })roducer may in no event under a statute of this kind, take the name or photograph of a person without his con- Weekly" and are pnKluceegislature did not intend bj' chapter l'.i'2 of the Laws of 15)03, now .sections 50 and 51 of the Civil Rights Law, to extend the prohibitions of that statute to newspapers. But that is very far from holding that such a service as the de- fendants conduct is a ncwspa|X'r or tiiat the acts complainotl of are not prohibited by the statute. Tlie Supremo Court of tlie I'nited States lias recently had occasion to consider the character of sucli 288 THE LAW OF MOTION PICTURES a service in the case of Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, where the question was involved of the constitutionaUty of a censorship of a service which included (p. 232) "events of historical and current interest — the same events which are de- scribed in words and by photo- graphs in newspapers, weekly periodicals, magazines and other publications, of which photo- graphs are promptly secured a few days after the events which they depict happen, thus regularly furnishing and publishing news through the medium of motion pictures under the name of "Mu- tual Weekly," and said (p. 244): "It cannot be put out of view that the exhibition of moving ])ictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Con- stitution, we think, as part of the press of the country or as organs of public opinion." The defendants argue that they are not using the plaintilT's name and picture "for adver- tising purposes or for the pur- poses of trade." I cannot agree with them. The films arc used in the defendants' regular busi- ness, for purposes of profit, and the posters are used to ad- vertise the films and to induce the public to patronize the the- atres where the films are exhibited. In other words, the defendants are exploiting the plaintiff's name and picture in their busi- ness for profit, and even if they are incidentally disseminating in- formation as to current news of the day, the plaintiff has the right to object and to an injunc- tion against the continuance of such conduct. In Blnns v. Vita- graph Co., supra, the court said (p. 58): "We hold that the name and picture of the plaintiff were used by the defendant as a matter of business and profit and con- trary to the prohibition of the statute. It is urged that there is danger of serious trouble in the practical enforcement of any rule which may be adopted in con- struing and enforcing the statute so far as it relates to purposes of trade. If there is any basis for the suggestion of danger in en- forcing a part of the statute under consideration it is the duty of the Legislature to repeal such part thereof," etc. As the court said in Almind v. 8ea Beach Railway Co., 157 App. Div. 230, 232: "The right of WEEKLY NEWS MOTION PICTURES 289 privacy under tlio statute caiuiut be invaded for purposes purely in- formative or redemptive, whether the altruist We entirely a chari- table envoy or a railway company. No cause is so exalted that it may allure by exposing the por- trait of a i)erson to the public gaze." The defendants argue that if this motion is granted it will seriously interfere with, if not destroy, their business, which gives information as to current events and innocent amusement to thousands, and they set out at length the services they are rendering to the government and to the Red Cross in connection with the present war and the activities of good citizens in con- nection therewith. Even if this were true, the remedy is by an api)eal to the Legislature, but the results they pretend to fear are not likely to follow. While I am not called on t(^ decide the point, it is not probable that any court will enjoin the use of moving picture films of current events of real public importance, because they happen as a mere incident to include among many the pic- ture of an individual. As the court said in the Binns ca.se (p. 57): "It is not neces.sary in this opinion to discuss the tiucs- tion whether a {jcrson, firm or corporation would \)c liable under the statute for making and using a picture of a living |x;rson when it is included in a picture of an actual event in which such {X-'r- son was an actor, and such pic- ture is a mere incident to the actual event portrayed. The use of the plaintiff's name and picture, as shown by the testi- mony in tliis case, was not a mere incident to a general picture representative of the author's un- derstanding of what occurred at the wreck of the RcpubUc." There is a clear distinction be- tween a merely incidental and fortuitous use of an individual's picture as an incident to some im- portant public event, and the exploitation of that individual as the important and central part of an event which is not of real public importance, however gr(>at may be the public interest therein. In this case it is clear that Mrs. Humiston's name and picture are the main pwint of that part of defendants' film re- lating to the Cniger murder, and that the tlefendants are seeking by the use of her name and pic- ture to make money out of her reputation and prominence. She is not the commander of an army, a visiting amliassador or even a 290 THE LAW OF MOTION PICTURES sent, weave fiction about it and represent the whole in motion pictures. ^^ public official, but a private citizen practicing her profession as a member of the bar, who is entitled to be protected in her right of privacy. It is conceded that the plaintiff gave no written consent to the use of her name and picture, and although it is claimed that she orally consented she denies that fact, and it is immaterial on this motion. So also the fact, if it be a fact, that her name and picture have appeared fre- quently with her consent in the daily newspapers is not material on this motion. All these facts may perhaps be material on the question of her damages, but that is not before me now. As Judge Gray said in the case of Roberson V. Rochester Folding Box Co., 171 N. Y. 538, at p. 5GG: "It would be, in my opinion, an extraor- dinary view which, while con- ceding the right of a person to be protected against the unauthor- ized circulation of an unpublished lecture, letter, drawing, or other ideal property, yet, would deny the same protection to a person whose portrait was unauthor- izedly obtained and made use of for commercial purposes. The injury to the plaintiff is irrepar- able, because she cannot be wholly compensated in damages for the various consequences en- tained by defendant's acts. The only complete relief is an in- junction restraining their con- tinuance. Whether, as incidental to that equitable relief, she should be able to recover only nominal damages is not material, for the issuance of the injunction does not, in such a case, 'depend upon the amount of the damages in dollars and cents." Motion for injunction during tlie pendency of this action granted on plaintiff giving an undertaking in the sum of $2,500. '^ Binns v. Vitagraph (1913), 210 N. Y. 51; 103 N. E. 1108. CHAPTER VII THE PUBLIC (continued) Tlieatre Proprietor's Duty Sec. !)1. Kiglil to exclude patrons. 92. Liai)ility for injuries sustained l)y i)atron.s— In general. O.'i. Falling over balcony. 94. .Seats and floors. 95. Tripping in darkened theatre — aisles — stejxs — exitw. 96. Articles dropping. 97. Wild animals. 98. Crowds. 99. Hurt by performer. 100. Miscellaneous accidents. 101. Acts of strangers. 102. Assault. 103. Who is liable. 104. Property lost in theatre. Section 91. — Right to exclude patrons. The e.xc'lu.siou of certain people or ela.sses of people from the motion picture theatre i.s another one of the j)ul)hc's rights wliich has assumed considerable importance, antl whicli has l)een the subject of statutory enactment. Under the common law a theatre i)roprietor could ex- clude whom he wished.' It was held in the leading case 'ColUxkr V. Ilm/man (1905), v. Ward (1911), 203 X. V. .T)!; 18.3 N. Y. 2.50; 76 N. E. 20; 96 X. K. 736; I'coplc ix rcl. 1 L. R. A. (X. S.) 1188; Aaron Burnham v. Fh/nn (1!)07). 180 291 292 THE LAW OF MOTION PICTURES of Purcell V. Daly that the ticket of admission was merely a revocable Ucense, and that the only penalty which the proprietor of the theatre would incur for its revocation would be the cost of the ticket and incidental loss suffered.^ As the relationship is a purely contractual one, a refusal to N. Y. 180; 82 N. E. 169; People v. Ki7ig (1888), 110 N. Y. 418; 18 N. E. 245; Luxemburg v. Keith (1909), 64 Misc. (N. Y.) 69; 117 N. Y. Supp. 979; Purcell V. Dahj (1886), 19 Abb. N. C. (N. Y.) 301; Marrone v. Wash. Clvb (1912), 227 U. S. 633; 33 Sup. Ct. 401; Wood v. Leadbitter (Eng.) (1845), 13 M. & W. 838; Shubert V. Nixon (1912), 83 N. J. L. 101; 83 Atl. 369; McCrea v. Marsh (1858), 12 Gray (Mass.), 211; Burton v. Schepf (1861), 1 Allen (Mass.), 133; Johnson v. Wilkinson (1885), 139 Mass. 3; 29 N. E. 62; Greenburg v. West. Turf (1903), 140 Cal. 357; 73 Pac. 1050; 148 Cal. 126; 82 Pac. 684; aff'cl 204 U. S. 359; 27 Sup. Ct. 3S4; Taylor v. Cohn (1906), 47 Ore. 538; 84 Pac. 388; Meisner V. Detroit (1908), 154 Mich. 545; 118 N. W. 14; Bucnzlc v. Newport Ass'n (1908), 29 II. I. 23; 68 Atl. 721; Homey v. Nixon (1905), 213 Pa. 20; 61 Atl. 1088; W. W. V. Co. V. Black (1912), 113 Va. 728; 75 S. E. 82; Taylor v. Waters (Eng.), 7 Taunt. 374; Younger v. Judah (1892), 111 Mo. 303; 19 S. W. 1109; Boswell v. Barnum (1916), 185 S. W. (Tenn.) 692; Rex V. Jones (Eng.) 1 Leach C. C. 204; Pearce v. Spaulding (1882), 12 Mo. App. 141. ^Purcell V. Daly (1886), 19 Abb. N. C. (N. Y.) 301. "The proprietor of a theatre has a per- fect right to say whom he will or will not admit to his theatre, and should any one apply at the box-office of a theatre and desire to purchase tickets of admission, and be refused, there can be no ([uestion that he would have no cause of action against the proprict(jr of the theatre for such refusal. And in the same way, if tickets are sold to a person the proprietor may still refuse admission, in which case the proprietor would be compelled to refund only the price paid for the tickets of admission, together with such other oxjiense as the party might iiave l)een put to, but which exixinse must be directly connected with the issuing of the ticket of admission." RIOHT TO KXrrj'DE PATRON'S 293 admit one who lias purchased a ticket is a breach of the contract and nothin<5 niore.^ Not only may the proprietor refuse admission to a ticket holder, but he ma}' refuse in the absence of a pro- hibilory statute, to sell a ticket to any particular person. Under the doctrine that tlu^ theatn; is a purely private enterprise, the proprietor may contract with whomsoever he pleases. He may also attach any condition to the sale of the ticket that he sees fit, and where the ticket is sold sub- ject to a condition that it be not resold on the sidewalk by a speculator, and such condition is brought to the attention of one buying it at or before its purchase, the proprietor may exclude the purchaser from admission.^ ^ Homey v. Nixon (1905), 2i;{ P:i. 20; 01 All. 108S; 1 L. R. A. (N.S.) 1184. "Tl»e proprietor of a theatre is a private individual, eiig;iKe(.l in a strictly i)rivate busi- ness, wliicli, thougli for entertain- ment of the public, is always lim- ited to those wlioni lie may aj^ree to admit to it. There is no duty as in the case of a common carrier, to admit everyone vviio may apply and be willing to pay for a ticket, for the theatre proprietor has ac- quired no peculiar rights and priv- il(>ges from the slate, and is tlicrc- forc under no imphed obligation to serve the pul)lic. When he sells a ticket he creates contractual re- lations with the holder of it, and whatever duties on liis part grow out of these relations, he Is bound to perform or respond in damages for the breach of his contract, if it is of that only that complaint can be made." Weis V. Skinner (101.')), 178 S. W. (Tex.) 34. (hi the question whether one who hid/s a scat may demand Ifie re- liini- (if his money if the house is full see: Lewis v. Arnold (Eng.) (1H.30), 4 C. & P. 354, which holds that he is entitletl to a refund of his money. Wollislcr V. Ilayman (1()05), 18,3 X. V. 2.-)0; 76 N. E. 20; 1 L. R. A. (X. 8.) 1188. 294 THE LAW OF MOTION PICTURES And he may revoke the Ucense either before or after ad- mission ■' and may even eject him.^ The mere fact that the theatre is Ucensed does not make it a pubhc or quasi-pubHc institution. The hcense conferred is not in the nature of a franchise as in the case of a common carrier/ for in the case of the latter the state delegates certain of its rights and powers to the holder of the license, whereas in the case of a theatre the hcense is in the nature of a special tax.^ To overcome the evils which grew out of the applica- ^Boswell V. Bamum & Bailey (1916), 185 S. W. (Tenn.) 692. "Amusement places are private enterprises, and the law does not confer upon the public the right to demand admission thereto. No legal duty is breached by refusing admission to anyone, or excluding anyone after ad- mission. If such person had bought a ticket there is a breach of contract, but there is no tort." « Marrone v. Wash. Jockey Club (1912), 227 U. S. 633; 33 Sup. Ct. 401; 43 L. R. A. (N. S.) 961. "The fact that the purchase of the ticket made a contract is not enough. A contract binds the person of the maker, but does not ('reat(! an interest in the prop- erty that it may concern, unless it also operates as a conveyance. . . . B\it if it did not create such an interest, that is tf) say, a right in rem, valid against the land- owner and third persons, the holder had no right to enforce specific performance by self-help. His only right was to sue upon the contract for the breach." The court upholds the right of the proprietor to eject the ticket holder after the revocation of the license if he refuses to leave the premises. To the same effect: People V. Hart (1910), 56 111. App. 523; Shubert v. Nixon (1912), 83 N. J. L. 101; 83 Atl. 369. '' Collister v. Hayman (1905), 183 N. Y. 250; 76 N. E. 20. "A theatre may be licensed, like a circus; but the license is not a franchise, and does not place the proprietors under any duty to the publi(r or under any obli- gation to keep the place open." Ulorney v. Nixnn (1905), 213 Pu. 20; 61 Atl. 1088. RIGHT TO EXfU'DK PATRONS 2(>.' tion of the foroKoiiis d<)ctriiK% tlio Federal Government '' and the several states have enacted statutes making it unlawful generally to discriminate against members of th(^ public because of their "race, creed and color." These statutes being in derogation of the conmion law, have been strictly construed, and unless the exclusion has been })(>cause of the race, creed or color of the individual ex- cluded, he has no remedy against the pn^prietor. This proposition is singularly illustrated in Woolcott v. Shubert '° where the defendants sought to exclude from their theatres a critic of the "New York Times" on the ground that his criticisms of their productions had been highly displeasing to them. In New York there was a statute at the time when this action was brought which provided that "all persons within the jurisdiction of this State shall be entitled to the full and equal accom- modations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons." '^ The statute further provided that no person shall directly or indirectly refuse to accord the same acconmiodations, advantages and privileges to any person on account of his "race, creed or color." The Court of Appeals held that the management was limited in its undoubted right to exclude the plaintiff only by the Civil Rights Law "except for reasons ap- phcable alike to all citizens of every race, creed or color." » Civil Rights Act, 18 Stat. 335. " Uws 1913, Chap. 265 (New ^° Woolcott V. Sfnibcrt (1916), York). 217N. Y. 212; 111 N. E. 829. 296 THE LAW OF MOTION PICTURES Since Woolcott was a critic writing for pay, and the dis- crimination against him was not based on race, creed or color, but was based on his criticisms of the defendants' plays, the court held that he could not enjoin the de- fendants.^^ The reasoning in that case follows closely the prin- ciples laid down in the Civil Rights cases, ^^ where the Federal Statute was held to be constitutional, and wherein it was decided that in the absence of any other statutes preventing them, proprietors could exclude from their theatres persons, if the exclusion was based on some- thing other than race, creed or color. On the other hand, the Civil Rights Statute of California provides that any orderly person presenting a ticket of admission acquired by purchase is entitled absolutely to admission. It was there held that such ticket holder on being excluded from a race course, was entitled to recover the penalty under the statute, although his ex- clusion had been based upon some ground other than race, creed or color. ^'* '2 See: Grannan v. Weslchesler conspiracy to prevent one from /2ac. i4ss'n (1897), 153 N. Y. 449; exercising his lawful trade, and 47 N. E. 896. it was held that they could law- People ex rel. Burnharn v. Flynn fully exclude such critic from their (1907), 189 N. Y. 1r- ^*Grecnbcrg v. Western Turf formances on tlic ground that his Assoc'n (1903), 140 Cal. 357 criticisms were scurrilous and 73 Pac. 1050; 118 C/al. 12G highly unfair was held not to 82 Pac. G84; alf'd 204 U. S. 359 violate the law with respect to 27 Sup. Ct. 384. RTCnT TO EXCLFDE PATRONS 297 While it was tho atn-optod rulo in England since 184") when Wood v. Ledbitter was decided, that a ticket was a revocable license and could he revoked either before or after entry into tho theatre, the recent English case of Hiirsl V. Ficlurc Theatres has modified this rule.'' There plaintiff had purchased a ticket entitling him to an un- reserved seat, entered the theatre, and occupied a seat therein. Shortly after the commencement of the per- formance he was requested to leave the auditorium, and uiK)n his refusal to do so, force was threatened, and he walked out. The prevailing opinion held that "the hcense was a license to enter the building and see the spectacle from its commencement until its termination. . . . The de- fendants had, I think, for value contracted that the j^laintiiT should- see a certain spectacle from its com- mencement to its termination. They broke that con- tract, and it was a tort on their part to remove him." ^^ The l']nglish rul(\ as estal)lished by Hurst v. Picture Tlicaires is that a theatre ticket is a license coupled with a ^'-Iluist V. Piclure TJieaires, tniftual relation existing between Ltd. (ICiiR.) (1915), 8;} L. J. (K. B.) himself and the proprietor of the l.s;i7; 111 L. T. 1)72; 30 T. L. U. tlicatre, and might maintain an 642; oS Sol. Jo. 731). action on the eontract a.s well as '« The Iliirst v. Piclure Theatres for a.ssault if he was forcibly Ltd. decision was followed in ejected. Dissenting opinion by Barn-well v. Nalional Amuse- McPhillips, J. A., to the effect ment Cn. (lOng.), 23 1). L. R. that the i)ro|)rietor of the theatre 615; 31 W. L. K. 512. A patron has "complete control over tliose once having entered and taken who are iiermitted to attend" the the proper .seat wa-s held entitled entertainment, and may eject pa- to retain his seat under the con- tron if he refuses to leave theatre. 298 THE LAW OF MOTION PICTURES grant — the grant to see the spectacle, and the hcense to go upon the premises to enjoy the grant; and for that reason it may not be revoked. The American rule is, by the great weight of authority, that the purchase of the ticket confers but a license rev- ocable at any time, and that this right is hmited only in so far as it may be affected by the various Federal and state statutes. To exclude a negro from a theatre is to violate the pro- visions of the statute.'^ And it was even held that where a negro was not excluded, but was asked to exchange the seat purchased by him for a seat in another part of the house, there was equally a violation of the statute. ^^ It was, however, held in another state that where the accommodations afforded by the part set aside for the use of the negro were equal to that afforded to the other " Joyner v. Moore (1913), 152 elude or authorize the exclusion A. D. (N. Y.) 266; 136 N. Y. of plaintiff and when he on the Supp. 578; Cremore v. Huber contrary had made rules to the (1897), 18 A. D. (N. Y.) 231; contrary and customarily per- 45 N. Y. Supp. 947; Joseph v. mittcd negroes to enter. Bidwell (1876), 28 La. Ann. 382; Hull v. GSth St. AiJiusement Co. People V. King ilSSS), HON. Y. (1913), 144 N. Y. Supp. 318. 418; 18 N. E. 245; Johnson v. Action was brought under Civil Sparrow (Can.), Q. J. K- 15 S. C. Rights Law because of refusal to 104; Q. J. R. 8 Q. B. 379. sell seat for orchestra balcony to Thomas v. Willia7)is (1905), negro. Held there was no viola- 48 Misc. (X. Y.) 615; 95 N. Y. tion where all the seats were Sui)p. 592. A negross was denied already sold at the time j)laintiff admission to a theatre because of sought to purchase tiu; seat. her color. Held that the pro- '^ Bnylles v. Curry (1889), 128 prietor was not liable when the 111. 2S7; 21 N. 1']. 595. defendant did not personally ex- MAHII.ITV von INMIUIES SUSTAINED HV PATRON'S 29(» portions of the llicatrc, tliore was no violation of tho statute. " Section 92. — Liability for injuries sustained by patrons — In general. While tlie proprietor of the theatre is not regarded as an insurer of the safety of his patrons -° he is recjuired as a general nile to exercise reasonable care and jrrudence in maintaining his premises in a safe condition.-' In many of the states the measure of this duty has been de- fined as analogous to that owed by the owner of a ten- ement house. The trend of the decisions, however, has of late years been away from this doctrine, and indications are not wanting that a high degree of care is imposed upon the proprietor, in keeping with the peculiar condi- tions that exist when great crowds gather for the purpose of recreation and amusement. " Wliere, however, a person invites others to come upon his premises to view an exhibition conducted by him for hire, he warrants the reasonable safety of the place, and by reason of that warranty is not under a passive duty ^^Commonwealth v. George his patrons, wits not, however, (10ir)),(U Pa. SuiKjr. Ct. 412. held to be an insurer and iKuind See also: Younger v. Jiuhih to anticipate the improbable. (1892), 111 Mo. 303; 19 S. W. =>' See: Noack v. Wosdick 1109; IG L. R. A. 558. (1913), 182 111. App. 425, where a ^iicc: ]y ells \. Minn. Baseball manager of a restaurant or (1913), 122 Minn. 327; 142 X. W. summer garden \v;us held bound to 706, where tlie owner of a base- exercise reasonable care to keep ball jwrk while required to use the premises in a safe eondi- care and precaution to protect tion. 300 THE LAW OF MOTION PICTURES merely, but is under an active duty, to guard against all risks which might reasonably be anticipated." -- He is bound to inform himself of the condition of the premises -^ and to ascertain their special fitness for the accommodation of surging crowds and other unusual occurrences that the owner of other property need not generally anticipate. He is responsible for structural de- fects -^ as well as for the acts of omission and commission 22 Redmond v. NaVl Horse Show Ass'n <1912), 78 Misc. (N. Y). 383; 183 N. Y. Supp. 364. Plain- tiff as a patron while viewing an exhibition was struck by a heavy gate which fell from the impact with a horse which had become unmanageable. Held negligence on the part of plaintiff, upon ground that defendant should have reasonably foreseen and guarded against such an accident. " Lmk V. Peck (1900), 132 A. D. (N. Y.) 426; 1 16 N. Y. Supp. 1051 ; aff'd 199 N. Y. 546; 93 N. E. 377. "The owner of a place of enter- tainment is charged with an affirmative positive obligation to know that the preinises are safe for public use. He may not be exonerated merely because he had nf) precise knowledge of the de- f(!Ctiv(! condition of the place to which he invited the public." '^* Schnizer v. Philips (1905), 108 A. D. (N. Y.) 17; 95 N. Y. Supp. 478. "The law is well settled in this state that where a party in possession of premises throws the same open to the public for the purpose of gain, he impliedly warrants the prem- ises reasonably safe for the pur- poses for which they were de- signed and where as in the case at bar, the plaintiff is injured by the fall of a structure which she is using at the invitation of the person in charge and in the man- ner which such person has a right to expect the same would be used, the burden of explaining the ac- cident and of showing freedom from negligence is upon the de- fendanl. See also: Ahramovritz v. Tenzer (1911), 144 A. D. (N. Y.) 170; 128 N. Y. Supp. 951; Fox v. Buffalo Park (1S97), 21 A. D. (N. Y.)321;47N. Y. Supp. 788; aff'd 163 N. Y. 559; 57 N. E. 1109. LIAIUIJTV I' UK INJURIES SIJSTAINKU HV PATUONS .'iOl OH the part of ageiitsi and sLTVaiits wliilu t'ligaged in the lju.siness of operating the tlieatre.-' And that duty ex- tends not alone to those who pay the i)rice of admission to his premises, but also to all others upon the same by his invitation.-'' This liability on the part of the owner of the building is not evaded by a lease of the structure, for even here the courts have gone so far as to read into the lease an ^''Oakland v. Bingham (1892), 4 Ind. App. 545; 31 N. E. 383; Dickson V. Waldron (1893), 135 Ind. 507; 34 X. K. .506; 35 N. E. 1 ; Fowler v. Holmes (1889), 3 N. Y. Supp. 816. Kcssler v. Dcutsch (1908), 44 Mi.sc. (N. Y.) 209; 88 N. Y. Supp. 846. The master is responsible for an act of the servant done within the general scope of the employment while enp;afj;ed in the master's business and to further it, whether the act be done negli- gently, wanlonly or willfully. The burden, liowever, is on the plaintiff to establish that the servant acted within the scope of his authority. See in this connection: Deyo V. Kingston Consolidated R. R. Co. (1904), 94 A. D. (X. Y.) .578; 88 N. Y. Supp. 487. Plaint ilT was injurefl throu{?h neglip'nce of employes of a fireworks manu- facturer giving e.\liibition in de- fendant's amu.sement park. De- fendant not held liable since exhibition was done entirely by manufacturer's employes and defendant had no control nor a,ssumed to exercise any control over them. See also Crowley v. Rochester Fire Works (1906), 183 N. Y. 353; 76 X. E. 470. See also Section 102. " Owens V. Assoc. Realties (1911), 81 X. J. L. 586; 80 Atl. 325. Plaintiff, a minor, was per- mitted to enter defendant's park by defendant's employes, with- out paying an admission fee, in exchange for which plaintiff rendered certain services. Held that plaintilT was there at de- fendant's invitation and that defendant was thereby under an obligation to exercise care for his safety. See also Turgeon v. ConrwcticiU Co. (1911), 84 Conn. 538; SO Atl. 714. 302 THE LAW OF MOTION PICTURES implied covenant by the lessor that the premises are fit and safe for the pm-poses for which they are intended to be used.-^ "Fox V. Buffalo Park (1897), 21 A. D. (N. Y.) 321; 47 N. Y. Supp. 788; aff'd 163 N. Y. 559; 57 N. E. 1109. "While it is un- doubtedly true in ordinary cases in the leasing of buildings that there is no imphed warranty on the part of the lessor that the buildings are fit and safe for the purposes for which they are leased, the rule is different in regard to buildings and structures in which public exhibitions and entertainments are designed to be given and for admissions to which the lessors directly or indirectly receive compensation. In such cases the lessors or owners of the buildings or structures hold out to the public that the structures are reasonably safe for the pur- poses for which they arc let or used, and impliedly undertake that due care has been exercised in the erection of the buildings. Francis v. Cockrcll (I'-iig.) (1870), L. R. [5 Q. B.] 501; Swords v. Edgar (1874), 59 N. Y. 28; Camp v. Wood (1879), 76 N. Y. 92; Beck v. Carter (1877) , 68 N. Y. 283; Crotc v. C. etc. II. It (Eng.) (1848), 2 K.xch. 251; ('nmphell v. Portland Sugar Co. (1873), 62 Me, 552; Wendell v. Baxter (1859), 12 Gray (Mass.) 494." Lusk v. Peck (1909), 132 A. D. (N. Y.) 426; 116 N. Y. Supp. 1051; afif'd 199 N. Y. 546; 93 N. E. 377. A lessor who rents baseball grounds containing a grand stand which was in a de- caying condition at the time of the letting is liable for injuries sus- tained by a patron. Where the premises are in a proper condition at the time he originally rents them but be- come defective during the term of the lease and where at the expiration of the lease he relets the premises to another party without repairing the premises, the lessor is liable to a patron during the period of the second lease for an injury sustained by reason of such defective condition. Barrett v. L. 0. B. Impr. Co. (1903), 174 N. Y. 310; 66 N. E. 968; 61 L. R. A. 829. Where the lessor let a structure for public use which was structurally de- fective or did not afford ade- quate protection to persons using it he was held liable. See also: Edwards v. New York (1885), 98 N. Y. 245. FALLING OVER UALCONV 303 But in any event, whether l>y an iinpHed covenant or an express covenant by the lessor, there must be notice, actual or constructive on his part, ljefrly constructed and insecurely fastened. Held, a question for the jin y. "A person erecting and using a hall for such exhibitions must SEATS AND FLOORS 305 The American rule is extremely unfair io tlie public It would l)e more in k('ei)ing with justice if tlie j)r()i>ri('t()r were held strictly to account for the giving way of the balcony rail, regardless of whether he knew anything about its construction, or had received notice of any de- fects. There are some elements of responsibihty resting upon the theatre proprietor which, because of the peculiar arrangement of the building and the methods of its use, impose a greater duty upon him than the x\jnerican juris- diction exacts. It seems hard to understand why a common carrier, which is bound to accept everyone presenting himself as a passenger, is charged with the highest degree of care, while tlie proprietor of a theatre, more or less free to fill his house, may expose gi'eat numbers of the public to unusual dangers and be hable for ordinaiy care only. If this rule were modified, it would do more to insure the safety of an audience than is accomplished by all the numerous statutes and ordinances that are i^assed every year. Weiner v. Scherer '" comes nearer to expressing this doctrine than any of the other reported American cases. Section 94. — Seats and floors. While the duty of the theatre proprietor has been de- use roiisonahle care in the con- '* Wciiur v. Schcrcr (1900), striK'tioii, inainteiiiuicc and man- (it Misc. (X. V.) 82; 117 N. Y. uRcincnt of it, having regard to Sni)|). lOOS. Here the rail gave tlie character of the exhibitions way Ijccause of the surging of given and the customary con- the crowd, causing several i)eople duct of spectators wiio witness to fall uiv)n tlie plaint it! who Wivs them. . . ." seated in the orchestra. 306 THE LAW OF MOTION PICTURES fined as ordinary care, even where the seats of a graiid stand had collapsed it was held nevertheless that he was liable for defects in the structure of the building which resulted in the giving way of the flooring. ^-^ The safer practice on the part of the proprietor is to make a thorough inspection of his building every day, paying particular attention to the seats. An inspection of this kind has been judicially defined as a full com- pHance with the proprietor's duty to his patrons. ^^ Section 95. — Tripping in darkened theatre — aisles — steps — exits. The case of Branch v. Klatt ^^ has laid down the best " Texas State v. Britton (1902), lis Fed. (C. C. A.) 713. Plaiu- tilf wus injured by the falling of scats in a grand stand. Held that the corporation operating the State Fair and advertising the side-show was liable in damages. See also: Van Antwerp v. Linton (1895), 89 Hun (N. Y.), 417; 35 N. Y. Supp. 318; aff'd 157 N. Y. 716; 53 N. E. 1133; Uuneke v. Went Brighton Am. Co. (1903), 80 A. D. (N. Y.) 2G8; 80 N. Y. Supp. 201. Brown v. So. Kennebec (1S59), 47 Maine, 275. The proprietor was held liable to a patron for injuries caused because of negli- gence in the constructif)n of a building resulting in the fall or giving way of the flooring. See also: Latham v. Roach (1874), 72 111. 179. ^^ Glynn v. Lyceum Theatre Co. (1913), 87 Conn. 237; 87 Atl. 796. "The lessee did not insure tlie absolute safety of the theatre seats; it, by its invitation to its guests, assumed the duty toward them of exercising reasonable care to sec that the seats were in a reasonably safe conditioii for its guests, Turgeon v. Connecticut Co. (1911), 84 Conn. 538, 541; 80 Atl. 714. It performed this duty by having its servant ex- amine i\w .seats each day and report their (n)ndition, and there- after repairing the defective ones. " "Branch v. Klatt (1911), 105 Mich. 060; 131 N. VV. 107; after retrial 173 Mich. 31; 138 TlUl'l'lNG I.N DARKENED TlIEATItE, ETC. 31)7 rule of all tho reported decisions with respect to the liabil- ity of the tlieatre i)ro])netor when his theatre is darkened during a performance. It holds that the patron, in such case, has the rif^ht to rely on the premises Ix'ing in safe ccjndition, and that his duty is lighter than that of a pede.s- trian. That is an eminently sensible doctrine, and should be followed in all the states. Unfortunately, it is not. The courts generally adhere to the old rule of ordinary care and contributory negligence, ^'^ something which in the N. W. 2&3. Phiiiitiff wius hurt by descendint; tlie steps situated at the exit of a theatre after dark. The (juestiou was whether by using this exit jjlaiiitiff was guilty of contributory iic>:;lip;oiu'e. "One woukl have the right to presume that the defendant had discharged his duty of having the premises in a reasonably safe condition, as to hghts and con- struction; and the onhnary |x*rson woukl naturally suppose that it would 1)(^ safe to pass ak)ng a passageway provided for his exit, with reasonal)le assurance of its being in safe condition. The very fact of the premises being main- tained in a darkened condition niiglit give him addcni assurance of it,s being reasonably safe. . . . The duty of a ix'rson in a the- atre, wliere he has been invited, is hghtor than that resting ui)<)n one passing ak)iig the pubhc streets." See also: Andre \. Merleiui el al. (1!)10), 96 Atk (N. J.) 893. "It is next argued that the plaintiff was negligent as a matter of law in attempting to leave the theatre before the show wii.-< Hnlsheil. Not so. The defendants commonly exhibited the same pictures over and over again on the same even- ing, and it was quite usual for patrons to depart at any time." " llolknback v. Clcmmcr (1912), m \Va.sh. 565; 119 Pac. 1114. Plaint ilT had attended a moving- pictun; show and on leaving the theatre was directed by the usher to take a particular exit. There was a step down of seven inches at this exit. \ot noticing this step she w;is pn'cipitated to the ground and injured. Held that defendant was not liable; that jilaintiff should have usetl her sense* of sight and looke' was aflimied. *'>Ewing V. rha<^c (1011), ;}7 '•> Dalton V. Hooper (1014), 108 S. \V. (Tex.) 84. I*laintifT, wliile descending a stairway in a tlieatre, caught her foot on a projecting metal strip, and sus- tained injuries. Held, that while defendants were not insurers, yet they owed the dutj' of exer- cising reasonaljle care. " It is their duty to make proper inspections to .see that the place is in proper condition to avoid injury. In this case there was proof to show inspection, and whether the projecting metal strip that caused apix-llee to fall was known to be in that condition, or should have been known to appellants by rea.sonablc care, a sufficient length of time before tlie accident to have been re- paired by apiK^llants, was a ques- tion for the jury's detenninatii)n." Va'entine Co. v. Sloan, 53 Ind. App. 00, 101 N. E. 102. Plain- tilT, while attempting to descend an aisle in the theatre, tripjx^d 310 THE LAW OF MOTION PICTURES In Micheltree v. Stair "^^ the proprietor was sought to be held hable by reason of an injury suffered by an actress who used an iron stairway to reach her dressing-room. It was held that she assumed the risk. We cannot rec- oncile this decision with the cases in the same state which hold that a tenant who has no method of egress from or in- gress to his apartment other than the stairway on which he is injured, is not, by reason of his using such stairway, guilty of contributory negligence. We do not believe that that decision will be followed. On the other hand, a patron of a theatre has no right to leave by a rear exit which is not intended for general use, and where he does so, and is hurt, he cannot recover."*- App. Cas. (D. C.) 53. The de- fendant violated a statute in failing to build proper inclines leading to exits, in his theatre. The court held that one who failed to comply with a statute was guilty of negligence as a matter of law where the person injured was free from contribu- tory negligence and the violation of the statute was the proximate cause of the injurj'. * • M icIieUree v . Stair ( 1 909) , 1.3.5 A. 1). (N. Y.) 210; 120 N. Y. Supp. fAO. PluintifT, an actress, slipped, while using stairway loading to her dressing room, because of the slippery condition of the iron trends on the stairs. Held that as she had used the stairway a number of times be- fore, she must have known the condition of the stairway and assumed the risk. Held further that the appellants not being plaintiff's employers, were only bound to use reasonable care in keeping the building, including the stairway in repair, but under no obligation to furnish her with a reasonably safe place to work. ••2 Hendershott v. Modern Wood- men (1911), 66 Wash. 155; 119 Pac. 2. Plaintiff while leaving a hall by the back stairway was injured. Held, no liability, as there was no invitation to enter or leave by that way. Johnson V. Wilcox (1890), 1.35 Pa. St. 217; 19 All. 939. Plaintiff had attended :i dance-hall. In- stead of leaving by the lighted AltTKLKS DROPPING :?n Nor is the owner liable because plaintiff had tripped over a mat in the foyer near the ticket ofhce." Section 96. — Articles dropping. Wlien a j)atron is injured by the fall of a part of the ceiling or chandelier, the rule of res ij)sa locjuitur applies, and the burden is on the proprietor to show that he was free from negligence. In such a case proof that the premises were regularly and carefully inspected will not relieve him from liability.^' To hold otherwise would be to place a premium upon carelessness on the part of theatre proprietors. It has been held in Flanagan v. Goldberg ^^ that a charge entrance he stepped out upon a tiark platform. Held that de- fendant was not liable for the injury resulting. "' Ilulmes V. United Theatres (191.5), 152 N. W. (Mich.) 987. See generally: Norton v. lludner (1913), 213 Mass. 257; 100 N. E. .546; De Velin v. Simn^son (1909), 72 Atl. (R. I.) 388; Dunjer v. //(7/.S Bros. (1903), 79 A. D. (N. Y.) 45; 79 N. Y. Supp. 7S.5; Reeves v. Fourteenth St. Theatre (1906), 110 A. D. (X. Y.) 73.5; 96 X. Y. Supp. 448; DiuUey v. Afjraham (1907), 122 A. D. (X. Y.) 480; 107 X. Y. Supp. 97; Meyer v. Grand Rapids Chair Co. (1914), 180 Mich. 604, 147 X. W. 488. ** Goldstein v. Levy (1911), 74 Misc. (X. Y.) 463; 132 X. Y. Supp. 373. But see: Sheets v. Suiibry (1912), 237 Pa. St. 153; 85 Atl. 92. Plain- tiff, while attending an amu.^^e- iiiciit park, stopjx'd under a tree. A linilj or branch fell upon him, injuring him, and the testimony showed that it apix-ared to be de- cayed, although there was some dispute as to that. It appeared that two days prior thereto an insjjection of the park had been made. Held that defendant was not liable and judguiciit in plain- tiff's favor reversed. *' Flanagan v. Goldberg (1910), 137 A. D. (X. Y.) 92; 122 X. Y. Supp. 205. Plaintiff was in- jured by a board falling in a 312 THE LAW OF MOTION PICTURES to this effect was error, but the special facts in that case must be considered, as there was indication that the board had been placed by strangers. The better rule would be to give the patron the benefit of every hberal construction, for he enters at the invitation of the owner, and relies upon the latter' s prudence and carefulness in the maintenance of the premises/^ Special circumstances might arise when the proprietor would not be held liable, as in case of a sudden panic ''^ on where the article dropped had not been fastened to the premises and might have been so dropped by a stranger. ■^^ motion picture theatre. The court held that it was error to charge that the burden was on defendant to show freedom from neghgence rather than on plain- tiff to show neghgence. *^ Currier v. Henderson (1895), 85 Hun (N. Y.), 300; 32 N. Y. Supp. 953. Defendant was held liable for injuries received by plaintiff by the fall of a batten from the flies in defendant's theatre. Schnizer v. Phillips (1905), lOS A. D. (N. Y.) 17; 95 N. Y. Su[)p. 478; Fox v. Buffalo Park (1897), 21 A. I). (X. Y.) 321; 47 N. Y. Supp. 788; aff'd 136 N. Y. 559; 57 N. K. 1109; Abrom- owitzv. Tcnzcr (1911), 144 A. D. (X. Y.) 170; 128 X. Y. Supp. 951; Lmk V. Peck (1909), 132 A. 1). (N. Y.) 426; 116 N. Y. Supp. 1051; aff'd 199 N. Y. 546; 93 N. E. 377. ^T King v. Ringling (1910), 145 Mo. App. 285; 130 S. W. 482. Plaintiff was injured by falling of a board at defendant's circus, during a panic caused by a wind- storm. Held defendant not liable as no evidence was brought out showing that defendant was guilty of a breach of any duty owing to plaintiff. « Williaym v. Mineral C. P. A. (1905), 128 Iowa, 32; 102 N. W. 783; 1 L. H. A. (X. S.) 427. While seated below a grand stand in a park where races were being held, a bottle was dropped upon plaintiff. Held that as reasonaljle care was the measure of duty, the charge was correct and the ^VIM) ANIMAI>; 313 Section 97. Wild animals. UiidcT one line of cases the rule of liability on the jjurt of an owner of wild animals was a veiy stringent one, so that where the animal escaped and injured another, the owner at once and in any event became lia))le.'^ Tlie owner was legally i)resumed negligent "'" and was charged with knowledge of the propensities of such animals to do injury.-'' He was bound to ''absolutely prevent" the jury's vordi<'t for tlie dofendaiit would not l)(! disturbed. There was no evidence to show how the bottle had been dropped or by whom. Picscltd V. Miner (1900), 30 Misc. (X. Y.) 301 ; 63 N. Y. Supp. 508. "PlaintifT moves to set aside a dismissal. He showed tliat while in the orchestra of defendant's theatre, he was in- jured througli tlie fall of an iron hook from above the stage. The defendant throuRh a witness called by the jilaintiff, sliowed that the hook fell while in use by the stage carpenter; there was no evidence of tlie character of any defect which existed prior to the accident, or that the tool was UMsuited to tlie work. . . . The dismis.sal was therefore proper." « lllale, P. C, chap.33, p. 430. The doctrine was laid clown by Hale that when the animal es- capes, the owner is at once liable irrespective of the degree of care exercised by him in keejv ing the animal confined. See: Besozzi v. Harris (Eng.) (1858), 1 Fost. & F. 92; Wyalt v. RosherviUe Gardens (Eng.) (18SG), 2 Times L. H. 282; Manger Bros. v. Shipman (1890), 30 Xeb. 3.'y2; 46 N. W. 527; Shaw v. McCreary (Can.), 19 Ont. Rep. 39. '-"Rogers v. Rogers (1887), 4 N. Y. St. Rep. 373. Xcgligence of the owner is the legal presumi>- tion. While a man might by a wanton act, provoke an attack "every failure to use care is not negligence nor does the rule of contributor}' negligence in the scn.se in which that term is ordi- narily applied, govern in such ca.ses." ''^Spring v. Edgar (1878), 90 U. S. 645. "Animals ferae natu- rae as a cla.ss are known to l>c miscliiin'ous; :ind the rule is well settlinl that whoever underUikea 314 THE LAW OF MOTION PICTURES injury ^- and the fact that plaintiff was a trespasser upon the premises whereon the animals were kept did not defeat a recovery. ^^ to keep such an animal in places of public resort is or may be liable for the injuries inflicted by it on a party who is not guilty of negligence and is other- wise without fault ... in ac- tions for injuries by such beasts it is not necessary to allege that the o\vner knew them to be mis- chievous, for he is presumed to have such knowledge, from which it follows that he is guilty of negligence in permitting the same to be at large." See also: Woodbridge v. Marks (1896), 5 A. D. (N. Y.) 604; 40 N. Y. Supp. 728; Brooks v. Taylor (1887), 65 Mich. 208; 31 N. W. 8.37; Fopplewell v. Pierce (Eng.) (18.52), 10 Cush. 509; Snoiv V. McCracken (1895), 107 Mich. 49; 64 N. W. 866; Partlow V. Ilaggerty (1870), 35 Ind. 178; Williams v. Moray (1881), 74 Ind. 25. '■^Gooding v. Chutes (1909), 102 Pac. (Cal.) 819; 23 L. R. A. (N. S.) 1071. Dofoiidant was keeping animals for exhibition at a place called "The Chutes." Plaintiff was employed to look after them, and in particular a camel of vicious propensities. " It is the duty of one who owns or keeps domestic animals known to be vicious to guard them in such a manner as ^yill absolutely prevent the occurrence of an injury to others through such vicious acts of the animals as they are naturally inclined to com- mit. . . . This language is used in the authority cited with re- spect to the duty of an owner of wild animals, which are pre- sumed to be ferocious." Hays V. Miller (1907), 43 So. (Ala.) 818. The owner of a wolf was hold liable for injuries in- flicted by the animal. "On the other hand the owner of wild animals ferae naturae is as a general rule liable for in- juries done by them. It is not necessary to prove that the owner had knowledge of the vicious nature of a wild animal causing injury, as he is conclusively presumed to have such knowledge. Neither is it necessary to show that the owner was negligent in permitting the animal to be at "Marble v. Ross (1878), 124 Mass. 44. WIM) ANIMAIi^ 315 "It is the duty of thoso who koop thorn (wild boasts) to do it in such a niannor as will absolutely i)revont the occurrence of an injury to others through such vicious acts of the aiiinials as they are naturally inclined to com- mit, and such liability exists without notice of the jjre- vious misconduct of such animals. In other words, such notice is conclusively presumed from the nature of the animal." •'* But wild animals have become a very necessarj' feature of the motion picture business as well as of theatrical exhibitions and the rule of absolute liability has been recognized as harsh and unjustly severe. It has for that reason been modified to the extent that .some negligence must be shown on the i)art of the owner before he may be held liable. •'' large for lie is bound to keep it secure at his peril." See: Par fin ns v. Manser (1903), 119 Iowa, 88:93 X. W. 86. Aiulreir v. Kilgnur (Can.), 19 Manitoba, 545; 13 West. L. Rop. 608. Held the owner absolutely liable for injuries caused by his I^et racoon. VreAenburg v. Behan (1881), 33 La. Ann. 627. Where plain- tiff's intestate wa.s set upon by a l)oar and mortally attacked, his estate could recover of the defendants, members of a club, which had kept the bear upon the adjoining premises. See also: Sperknidii v. Krciij (1899), 79 Mo. App. 370. Ildrrif! V. Carstens Packing Co. (1906), 86 Pac. (Wa-sh.) 1125. Defendant, the owner of a vicious steer, held liable for one injurwl l)y the animal. See also: Midler v. McKeni^on (1878), 73 N. Y. 195; Hammond v. Melton (1891), 42 III. App. 186; Ahlstran^l v. Bishop (1899). 88 III. App. 424. ''* Parker v. Cuahman (1912), 195 Fed. (C. C. A.) 715. Plain- tiff attended a wild-animal show, and a lion reache'^Molloy V. Starin (1«K)8), 191 N. Y. 21; 8:1 N. E. 588. The owner of a boat wa«J tran^jiorting several trained bears. Plaintiff, 316 THE LAW OF MOTION PICTURES "Hence the gist of such an action as this is not the keeping of the dog with knowledge of his dangerous na- ture, but rather the neghgent failure to properly restrain the animal, and to keep liim so safely that he may not injure anyone who is lawfully at the place." ^^ Where the owner is free from all negligence and the animal escapes, the owner is not liable. ^^ Nor is the owner a boy of nine years, came upon the cages and was injured. Held that the defendant was not brought within the rule making it absolutely liable for beasts ferae naturae, unless negligence on his part could be shown, and that as no negligence was here shown, a verdict in favor of plaintiff was reversed. ^ Hayes v. Smith (1900), 62 Ohio St. 161;56N. E. 879. See also: Thomas v. Bayson (1901), 21 Ohio C. C. 778; Fake V. Addicks (1890), 45 Minn. 37; 47 N. W. 450; Melsheimer v. SnlUvan (1891), 1 Colo. App. 22; 27 Pac. 17; Meibiis v. Dodge (1875), 38 Wis. 300; Worthen v. Love (1888), GO Vt. 285; 14 Atl. 461; Graham v. Payne (1889), 122Ind. 403;24N. E. 216. '•'' (,'onnor v. The Princess Theatre (Can.), 10 I). L. R. 143; 4 O. VV. N. 502; 27 Out. L. Rep. 466; 49 C. L. .1. US. Phiintiff w;is injured l)y a trained nK)nkoy wliich performed in the theatre of defendants. Held that de- fendants were not liable as they had not been guilty of any neg- ligence, the monkey having been insecurely fastened by a stranger. See also: Du Tremble v. Poulin (Can.), 42 Que, S. C. 121. De Gray v. Murray (1903), 69 N. J. L. 458; 55 Atl. 237. Defendant was accustomed to keeping a vicious dog locked up for the night. The dog managed to chew away the woodwork around the lock of his house, and escaped, injuring plaintiff early the following morning. Defend- ant held not liable. Scrib7ier v. Kelly (1862), 38 Barb. (N. Y.) 14. Defendant owned an elephant. Plaintiff's horse became frightened thereat and caused the injury. Hrld (hat while the defendant's nogligciu-e was presumed, there was no proof here that he was anything but careful, and the complaint was dismissed. WILD AM.M.\I>> 317 liahlo when the i)laintilT has liimself been guilty <;f eun- tributory negligence or has provoked the animal.''* And the owner has been held harmless where the plaintiff was employed to look after the animal, for in that ease the latter is presumed to have accepted the risk incidental to his employment. ^^ There seems to have been a reversion to the old doc- trine in a recent New York decision where a proprietor was held hable although no actual negligence on his part was shown. It is rather surprising to see the old doctrine of absolute liabiUty invoked and enforced at the present time, but iSlamp v. Sixty-eighth Street Amusement Company ^^ seems to be based wholly on that theor>'. There a lion had cscai)ed during a performance, and a panic ensued, causing the plaintiff's injuries. While the learned court rightly held that the panic and injury were a direct re- sult of the animal's escape, it also held that the pro- <^Ervin v. Woodruff (1907), 119 A. D. (N. Y.) 603; 103 X. V. Supp. lO.'jl. One who places hiin- solf in danpcr of attack by a l)oar is guilty of contributory negli- gence. See: Marqucl v. LaDiikc (1893), 96 Mich. 596; 55 N. W. lOOG; Jackson v. Baker (1904), 21 Ai)i). D. C. 100. " Barman v. City of Miluunktc (1896), 93 Wis. 522; 07 X. W. 924; 33 L. R. \. <1.VJ. IMaintilT was einployetl in a park where deer and elk were kept and while in an enclosure with the anin)als, w;us attacked by them and in- jured. He was held to have ac- cepti^d the ordinary risks inciilent t« the business, and defendant was not liable. See: Little v. City of Madison (1877), 42 Wis. G43; S. C, 49 Wis. 605; 6 X. W. 249; May v. Burddt (Eng.) (1846), 9 Q. B. 101; 9 .\dol. & E. (X. 8.) 101 ; Filburn V. Peoples P. & A. Co. (Eng.) (1890), 25 Q. B. Div. 258. ^ Stamp V. nsth St. Am. Co. (1917), 159 X. Y. Supp. 683. 318 THE LAW OF MOTION PICTURES prietor of the theatre was liable irrespective of whether he was neghgent or not. To this doctrine we cannot subscribe. We do not think that the case will stand. Section 98. — Crowds. It has been held neghgence on the part of the theatre proprietor to so overcrowd his balcony as to cause the giving way of the rail." Narrow passageways, resulting in a jamming of the crowd, and injury to the plaintiff will also make him Hable, as it has been held to be the proximate cause of the injury.^- And a failure to guard the space under a platform which collapsed and killed a boy who had strayed underneath was sufficient to charge the defendant with liabiUty.^^ ^^Weiner v. Scherer (1909), 64 Misc. (N. Y.) 82; 117 N. Y. Supp. 1008. Plaintiff while seated in the orchestra was injured by the giving way of a rail on the bal- cony, causing several people to fall upon him. "The defendant must be as- sumed to lui\e known the capac- ity of the balcony, and he had no right to permit it to become so overcrowded as to cause undue pressure upon the rail. The pressing forward of the people U) view the performance was also to be expected, and that this would naturally be done, by the standees should have been an- ticipated; and the admission of a much greater number of people than the balcony in ordinary use was intended to contain . . . made it a question for submis- sion to the jury." ^^ Bole V. Pittsburgh A. C. (1913), 205 Fed. (C. C. A.) 468. Plaintiff was injured while at- tending a baseball game. Held that the proximate cause of the accident was the act of defendant in maintaining a narrow passage- way, and judgment in defend- ant's favor was reversed. <'' Murrell v. Swilh (1910), 152 Mo. App. 95; 133 S. W. 76. Plaintiff's intestate, a boy of HURT m lEIiFORMKU M\) In one case fire hroko out in tlie defendant's circus, and plaintiff was injuretl. Defendant's liability was rested upon his failure to supply fire extinf^uishers/' From the fore^oinp; cases the rule might be adduced that the i)ro|)rietor of a theatre or other place of amuse- ment is bound to anticipate the gathering of great crowds, and he is in duty bound to make some suitable provision for their safe entry and exit, their disposal, and for the common emergencies that may arise, such as fire and panic.'''' Section 99. — Hurt by performer. The proprietor of a theatre is mider a duty to exercise reasonable care in safeguarding the audience from injury elKJit years, met his detitli under :i phitform erected by and under the charge of the defendant's managers in the midst of fair grounds. The surging of tlic crowd caused the jjlatforni to collapse. Held that harriers should have been placed, as cliil- dren might iiave been expected to go into this space. That rea- sonabU* diligence and caution was the measure of defendant's duty. (Sec: Van Clccf w Chicago, 23 L. R. A. (N. S.) 642.) ^*Gnswol(l V. Ringling (191.')), 10.-) A. D. (X. Y.) 737; 1.^)0 X. Y. Supp. 1022. It was held that the question of negligence was for the jurj- in a case where a sjkjc- talor of a circus was injured in endeavoring to get out ui)on the breaking out of fire in the tent and the defendant failed to have chemical e.\tingui.shers therein. " Edwards v. N. Y. A 11. h'. A'. (ISS.")), !»N X. Y. 24.'). Defend- ant had lea.sed Clilmore's (lardens to one Kelley, who wjus to make all alterations. Kelley permitte- ing of the people, the gallery fell, injuring plaintiff. By a tlivi(le. Where the State Fair C'oinini.s.sion jxTmitted a race of high jjower automobiles on its grounds and protected the part assigned to si^ctators from tlie track by a wooden fence of flimsy construction, it was held liable for death and injury of per- son by an automobile which broke tlirough sucli fence. Conrad v. Clauve (1883), 93 Ind. 476. Defendants were the owners and managers of an amuse- ment park to wliicli an aihnission fee was charged. A part of tlic ground was allotted to target shooting. Plaintiff was not in- fonnetl upon entering the park that a part thereof wa.s allotted to target shooting and hitched his horse within the proscribed area. Defendants were held liable for the value of the horse which was shot, u|xjn the ground that there was a duty impcjsed upon defendants to inform plaintiff of the danger of hitching liis horse within the ground set aside for target shooting. Thompson v. Lowell (1898), 170 Ma.ss. 577; 49 N. E. 913; 40 L. U. A. 34.'). Where a .spectator at a grove wius struck in the eye by a bullet fired by a performer therein, he was entitled to go to the jury on the question whether defendant had taken due pre- caution to guard against injur>'. A railroad corix)ration which owned and maintained such a grove also held liable. Ilallyburton v. Burke Co. (1896), 119 N. C. 526; 26 S. E. 114. ^^^lere a horse, on a race- track, l)olted from his course and injured a specttitor who was sitting on the railings, the pro- prietor of the track was held not liable. 322 THE LAW OF MOTION PICTURES struck by a foul ball.^^ But where the screen which is provided is inadequate plaintiff may recover.'" Nor is this a duty owed to a patron alone, but the pro- prietor, it has been held, owes a duty to a trespasser as well, if he knows of the latter's presence."^ The proprietor is liable to a patron for insulting and defamatory language addressed to the latter by a per- formerJ^ Section 100. — Miscellaneous accidents. One who operates a scenic railway is a carrier of pas- sengers and is hkewise bound to the highest degree of ^^ Crane v. Kansas City Base- ball (1912), 168 Mo. App. 301; 153 S. W. 1076. Plaintiff had purchased a seat in the grand stand which was protected against danger of being struck by foul balls. He voluntarily chose to take a seat in an unprotected area. Defendant held not liable. ^° Edling v. Kansas City Base- ball (1914), 181 Mo. App. 327; 168 8. W. 908. Plaintiff was witnessing a ball game on de- fendant's amusement grounds. Plaintiff was sitting in a stand which was screened. A foul ball struck the screen, broke through and hit plaintiff. Defendant was held liable. See also: Fox v. Doiu/herty, 2 W. N. C. (Pa.) 417; where it was held not to be contributory negligence to sit in the front row of the orchestra. ''Her rick v. Wixon (1899), 121 Mich. 384; 80 N. W. 117; 81 N. W. 333. The fact that plaintiff forced his way into a show tent, where he was injured by the explosion of a giant firecracker in the course of the performance, will not preclude a recovery based on the proprietor's negli- gence, since the duty of reason- able care is owed even to tres- passers when their presence is known. See in tliis connection: Aiufhlrey V. Wilcx (1917), 91 S. K. (S. C.) 303; liamonns v. Grand Rapids Iiy.Co.iV.)\7), 160 N.W. (Mich.) 382. ''- fntcrslalc Am. Co. v. Martin (1913), 8 Ala. App. 481. MISCELL-VNEOLS ACCIDENTS 'A'2:\ care.'^ Ai\d one who operates a " iiicm'-gf)-roun(l " may not start il until every i)asseiiger in it lias been seated."* A swing erected in an amusement park must not be main- tained in a defective condition '' and the owner of a park ''* Wash. Luna Park v. Goud- rich (1010), llOA'ii. 092; GO S. K. 977. A juil(;inent in favor of pliiintifT W11.S iiffinned. He had been :i pu-ssengcr in a "roller coaster" car, and while therein another car had collided with him, causing tlie injury. O'Callayhan v. Dcllwood Park Co. (1900), 242 111. 33G; 89 N. E. 1005. One ojK*rating a scenic railway was lield to be a carrier of pa.ssengers and bound to use tlie same degree of care as any other carrier of passengers. Pointer v. Mountain R. C. C. (1917), 180 S. W. (Mo.) SO."). The rule of res ipsa lo(iuitur on scenic railways not held to apply. Lunisdiii V. Thompson Scenic A??/. (1000),l.i().\. 1). (X. V.)20!); 114 N. V. Supp. 421. Action for negligence on scenic railway-. Verdict for jjlaintitT reversed. Sec: lluncekc v. U'. liriijhUm AuHusement Co. (1903), 80 A. D. (X. Y.) 2G8; 80 X. Y. Supp. 2(11 ; Barrett v. Lake Ontario Ikach Imp. Co. (1003), 171 N. V. 310; 66 X. E. 068. On the question of liabilHy to a trespasser see: Aughtrey v. Wiles (1017), 01 S. E. (S. C.) 303. PlaintitT non-suited after injury sulTered on automobile race-track on the ground that he was a trespa.s.ser. Ramonas v. Grand Rapids Ry. Co. (1017), 160 X. W. (Mich.) 382. ^* Harris v. Crawley (1012), 170 Mich. 381; 136 X. W. 356. The (juestion in this ca.se was whether defendant was negligent in starting his "merry-go-round" before plaintiff was seated. See Linthicum v. Truitt (1911), 2 Boyce (Del.), 338; 80 Atl. 245, on the (juestion whether it was negligence to attempt to board a "merry-go-round" while it was in motion. ^'' Schwab V. .[nderson Sleam- ImhiI Co. (1011), ()6 Wjush. 236: 11',) Pac. 614. The owner of a park was held not liable for an injury to the plaintiff uix)n a swing erected just outside the limits of the park, although thert^ is a short and logical dissenting opinion by Judge Chadwick which gives the better rule. 324 THE LAW OF MOTION PICTURES is likewise liable to one who is injured by a turnstile at the gate7® While one who was riding on an amusement device was non-suited by reason of his failure to show a faulty con- struction of the device/^ it was held that where the ac- cident was caused by the act of the defendant's employe, a question of fact was presented for the jury."^ To leave one's position in a grand stand and go to an exposed part of the field has been held contributory neg- ligence."^ The proprietor of a swimming bath was held not liable because the attendants furnished by him failed to rescue plaintiff's intestate.^" ^« Marx V. Ontario H. & A. Co. (1914), 211 N. Y. 33; 105 N. E. 97. It was held that a sudden back- ward movement of a turnstile through wliich it was necessary for patrons of an amusement park to pass, by one of defend- ant's attendants, causing an in- jury to a ticket holder, rendered the defendant liul:)le. " Fennar v. Atlantic Am. Co. (1913), 84 X. J. L. 691; 87 Atl. 344, Plaintiff while riding on the "Human Niagara Falls" was in- jured. Ilcbl tliut in tlie absence of any evidence to show faulty construction or want of repair, the complaint was bad. " Hays V. Kldor Am. Co. (1912), 51 Pa. Sup. Ct. 420. A bamboo Blidc in an amusement park was used by plaintilT, who alleged that by reason of the start or shove given him b}'^ the defend- ant's employe he was injured. Held a question for the jurj'. -^ Burns v. Herman (1910), 48 Colo. 359; 113 Pac. 310. Where defendant provided a grand stand where the spectators were to sit and the plaintiff voluntarily left the i)Iacc furnished l)y defendant and went to a place where he was in danger of being injured, it was held that plaintiff was guilty of contributory negligence. ^^ Levinsky v. Cooper (1911), 142 S. W. (Tex.) 9.59. Defend- ants conducted a natatorium, and plaintiff's intestate, while swim- ming therein was drowned. Wliile it was held that the proprietor of the jilace was bound to exer- cise reasonable care in furnishing ACTS OF STRANGERS 32.1 It is a noKligont act for a street railway company to run its car at full speed opposite a point where people are leaving a theatre in large numbers.*' Section 101. — Acts of strangers. The i)roi)rietor is n(jt haijle for the acts of patrons or strangers unless they are such as could have reasonably been foretold. "Wliile the defendants were bound to exercise reason- able care to protect their invitees from peril, they were not insurers of their safety, and if the accident occurred through the willful act of a third party, the defendants could not Ijc held liable therefor." *- Depredations l)y boys committed at intervals would be attondants, lie was not responsible if the attendants failed to rescue the intestate. •" Fuirbdiiks V. Montreal St. Ry. Co. (Can.), 311). L.R.72S. See generally on accidents: Cmunneau v. Muskegon (190C), 145 Mich. .'il4; lOS N. W. 720; Phillips V. Wisconsin State (l.S,S4), 60 Wisconsin, 401; 19 N. W. 377; Iliggins v. Franklin Co. (lOOG), 100 Maine. r^Cur, 62 Atl. 70.S; Currier v. Boston Music Hall (1S8S), 1.35 Ma.ss. 414; Hart v. Wash. Park (1895), 157 III. 9; 41 N. E. 620; Scott v. Unit^rsily of Mich. (190S), 152 Mich. 6.S4; 116 N. W. 624; Selinns v. Ver- mont State (18SS), 60 Vt. 240; 15 Atl. 117; Stair v. Kane (1907), 156 Fed. (C. C. A.) 100; Decatur V. Porter (1907), 137 111. App. 448; George v. Univ. of Minn. (1909), 107 Minn. 424; 120 X. W. 750. '^-Meeker v. Smith (1903), 84 A. D. (N. Y.) 1 1 1 ; 81 N. Y. Supp. 1007. PlaintifT's intestate while visiting defendant's amusement park was killetl by the falling of a jack, a part of an apparatus used in defendant's park. The ac- cident occurred through the will- ful act of a stranger. See also: Williarns v. Mineral C. P. A. (1905), 128 Iowa, 32; 102 X. W. 78;?; Cretnore v. Huber (1897), 18 A. D. (X. Y.) 231; 45 X. Y. Supp. 047. 326 THE LAW OF MOTION PICTURES something to put the proprietor on his guard, and he would be bound to guard against future acts of a Uke nature; but if no prior acts had occurred, he would not be hable for the injury sustained on this occasion. ^^ Section 102. — Assault. The proprietor of a theatre owes his patron the duty of protecting him against assault, both of the theatre employes and strangers. "Common carriers, inn-keepers, merchants, managers of theatres and others who invite the pubUc to become their patrons and guests, and thus submit personal safety and comfort to their keeping, owe a more special duty to those who may accept such invitation. Such patrons and guests have a right to ask that they shall be protected from injury while present on such imdtation and particularly that they shall not suffer wrong from the agents and servants of those who invited them." ^^ The proprietor is in duty bound to maintain ^^ Flanagan v. Goldberg (1910), tions, or had done so, and there- 137 A. D. (N. Y.) 92; 122 N. Y. upon negligently failed to protect Supp. 205. Plaintiff attended those invited to the entertain- a motion-picture show and during ment." the performance a board fell upon ^* Dickson v. Waldron (1893), her. 135 Ind. 507; 34 N. E. 506; 35 'e done politely and without any undue humiliation." While the i)roprietor as a general rule is not respcnisihlc for the act of other patrons'^'' he is nevertheless liable for such acts when committed tlirough his agency or where he has had reason to anticipate such acts and could have taken measures to prevent them.^" He is likewise an- scrv'iiiit erred, and that tliis rule ^ Cremore v. Iluber (1S97), ai)i)lied to a special policeman 18 A. D. (X. Y.) 231; 45 N. Y. ennuficd l)y the theatre proprietor. Oakluiul V. Bingham (18U2), 4 Ind. App. 545; 31 N. E. 383. One conducting an amusement park was held liable for injuries sustained by a patron through an a.ssault made by a gatekeeper. Fowler v. Holmes (1889), 3 N. Y. Sui^p. 816. A person col- lecting tickets at entrance to defendant's theatre assaulted plaintiff who attempted to enter, having a ticket of admission. Held that the trial court properly submitted the ([uestion to the jury whether defendant's ticket taker was acting within the scope of his employment at the time he a.ssaulted jjlaintiff. See also: Kj)stein v. (Jurdun (1909), 114 X. Y. Supp. 438; Kesslcr v. Deutsch (1904) , 44 Misc. (X. Y.) 209; 88 X. Y. Supi). 84G. *' Rtisso V. Orpheum Theatre (1914), GO So. (La.) 385. Supj). 947. "' Mastad V. Swedinh Brethrnt (1901), 83 Minn. 40; 85 X. W. 913. A person managing and controlling a puljlic place of amusement, to which he invites the public, on payment of an admission fee to attend, and at which place he sells to his cu.s- tomcrs and patrons intoxicating licjuors, and who sells such licjuors to one in attendance at such place and thereby renders him drunk anil disorderly, well knowing that when in that condition he is likely to commit assaults u[H)n others without cau.se or jirov- ocution is bound to exercise rea.sonable care to protect his other customers and patrons from such assaults and insults, and for a failure to do so is liable in tlaniages at the suit of one as- saulted aiul injured. Scc>: ! iiih'iiniijinlis V. Dairson 328 THE LAW OF MOTION PICTURES swerable for the insulting and abusive language of the performers.^^ Colored people may not be ejected from the theatre ^^ and for an assault committed by the servants of the pro- prietor, he is liable. A patron who occupies a seat to wliich he is not en- titled may be asked to give it up, and if he refuses the usher or other servant may use such reasonable degree of force as will accompHsh the purpose.^" But he must (1903), 31 Ind. App. 605; 68 ^^ Drew v. Peer (1880), 93 Pa. N. E. 909. 234. Defendant held liable for »» Interstate Am. Co. v. Martin ejecting a colored man and his (1913), 8 Ala. App. 481; 62 So. 404. The defendant, the pro- prietor of a theatre, was held liable in damages to plaintiff, a patron of the theatre, for the act of a performer in addressing to plaintifT insulting and defamatory language. The court said: "It is not to be doubted that one of those duties is to accord to the ticket holder civil treatment while he is exer- cising the privilege for which he has contracted. This duty is one that may be breached by the proprietor himself or by mis- treatment at the hands of an employe while acting within the scope or range of his employ- ment, and the mistreatment may consist in the use of uncivil and offensive language afldressed to or spoken al)out the tirkot holder." wife from his theatre. Indianapolis v. Dawson (1903), 31 Ind. App. 605; 68 N. E. 909. Defendant, a street railway com- pany, having knowledge of a conspiracy to attack all colored persons who attended at its amusement park, which it owned, transported a negro to its park. It was held liable for injuries sustained by plaintiff because of an assault at the park. ^ Hyde v. Toronto Theatre (Can.), 17 O. W. R. 380. The usher may use reasonable force in ejecting from the theatre one whose ticket does not en- title him to that particular seat. See also: Macdmmn v. Duff (1887), 14 Daly (N. Y.), 315; Younger v. Jwlah (1892), 111 Mo. 303; Ijcuus v. ArnoUi (Eng.) (1830), 4 C. and P. 3.54. ARRAT'I/r 32f> ho Rivpn a roasonahlo opportunity to explain,^' ami if it turns out that the i)ropri('tor has made the mistake, the patron may recover punitive as well as compensatory damages.*^ said scat as 'taken' could pve the prosecutor a riglit to tliat which someone else had previously bought and paid for. . . ." ^^ Armstrong v. Stair (1914), 217 Miiss. r>34; 105 N. E. 442. Plaintiff purcha.setl a balcony ticket. He gave it to the usher who left him standing, and plain- tiff then occupied the hust seat. I.ator, when asked for his check he tried to account for its absence, and a special officer was sent for. The latter took him into custody and brought him to a ix>lice station where he wa-s forced to remain all night. IlcUt that the defendants, including the man- agers of the theatre, were liable for a.s.sault, false imprisonment and malicious prosecution. See in this connection: Weiss v. Skinner (1915), 178 S. W. (Tex.) .'i4. For wrongful ejection from the theatre because of the pur- chase of a ticket for another i^er- formance than that attendetl, the manager of the theatre was heUl not liable in contract, because he was not a party thereto, nor in tort, for he did not eject plaintiff. »- Webcr-Stnir v. Fisfier (1009), Commornrcnlth v. Poirell (1873), 10 Phila. (Pa.) ISO. "A visiUjr at a theatre or other place of amusement is entitled to a seat. This right to some extent de- jMMids upon the character of his ticket. If for a reservetl seat, he has a right to that particular seat. If not reserved, then to any one he may find unoccupied, and which had not i)reviously been sold to another. I instructed the jury that if the prosecutor selected a seat in that portion of the building called for by his ticket, and that there was nothing upon the said seat to indicate that it was 'taken', and no notice had in fact been given pros- ecutor i)rior thereto that it had been sold to someone else, he had a right to occupy it, and the act of the d(>fen(l:uit in ejecting liim therefrom was an a.ssault and battery. Subsequent reflection has satisfied me that it is not so much a (juestion of notice, jis of whether there had l)een an actual bona fide .sale of that particular seat to a third party. If .so, no neglect on the part of the i)n>- prietor of the niusruiu in marking 330 THE LAW OF MOTION PICTURES The patron also owes a duty to the proprietor to con- duct himself in a peaceable and orderly manner, to retain the seat sold to him and to refrain from causing any riot or disturbance.^^ He cannot hold the proprietor Hable where he has violated that duty. 119 S. W. (Ky.) 195. Plaintiff In this case plaintiff was ac- received evening tickets instead companied by two other people, of tickets for a matinee by a mistake of the theatre employe. Held that he was entitled to punitive damages. 8' Lewis V. Arnold (Eng.) (1830), 4 C. and P. 354. Action for assault and false imprison- ment. Plaintiff had bought a ticket for the pit. There being standing room only, he attempted to climb into a box. From this he was ejected and escorted out of the theatre. An altercation arose, and plaintiff was arrested. Chief Justice Tindall said: "Even if this plaintiff had been informed that there was room in the pit of this theatre when there was not, which in this evidence is matter of doubt, he had still no right to go into this private box. His proper course, if there was not room, was to go out of the theatn; and demand the return of his money. . . . Mr. Arnold has tJKTcfon! a right fo turn the plaintiff out of the private box, using no more force than was necessary," and in the altercation that took place outside of the theatre one of these people struck a blow. Held that even if plaintiff was passive, all three were engaged in a common purpose, and he was therefore nonsuited. Clifford V. Brandon (Eng.) (ISIO), 2 Camp. 358. Action for assault and false imprisonment. Plaintiff had entered Covent Garden during a disturbance in the audience due to the raise in prices of the seats. On going out, although not actively taking part in the rioting, he was ar- rested. Subsequently ho was dis- charged and on this action, Chief .lustice Mansfield said: "The jury will consider whether Mr. Clifford was an instigator of the riot, which one of his witnesses has represented as resembling a i\\\\\v- rel among a thousand drunken sailors. The law is that if any person encourages or promotes, or takes part in riots, whether by words, signs or gestures, or by wearing the badge or ensign WHO IS i.i\ni,F. r^r^i The rule as to jninitivc daina^<'s is that whore the assault was wanton or N'icious, such damages are recover- able. Proof of knowledge of viciousness of the servant has been held necessar>' in one state and not necessary in another.^' It is always for the jury to pass on the (question whether the manager himself instigated the assault,^' and where the reason assigned for the eject- ment was that the ]xitron was drunk and disorderly, evidence showing that on i)rior occasions he was not drunk and disorderly is inadmissible.^'^ Section 103. — Who is liable. The general rule is that the proprietors of parks, fairs and amusement grounds are liable for iujiu'ies sustained because of the negligence of their concessionaires,'-'^ of the rioters, he is liimself to 1)0 eonsideretl ii rioter. ..." See: lim>io v. Oipheum Theatre (1914), 60 So. (La.) 385; Greg- ory V. Brun-fiu'ick (Eng.) (1843), GMan.& (1.205. »* Walsh V. Ilijdc A Bchman Amiuic. Co. (190G), 113 A. D. (N. Y.) 42; 98 X. Y. Supp. 9G0. PlaintifT, :i ticket holder, was ejected from defendant's tlieatre and was badly beaten and bruised. \'erdiet granting specifieneral employ of tlie (Icfcndnnt. Tlu; fact that for a percentage of tlie receipts the defendant had agreed PROPERTY LOST IN THEATRE 335 On the other liuiid, tlie i))()i)ri('t()r of the liicutre is not lial)l(' for the torts of the company's own employes even thougli the company is playing under a Uke arrangement of a i)crcentage of the gross receipts."" The lessees of a theatre were held liable for an assault committed l)y an usher in their employ, on the theory that while they were not joint tort-feasors they were employers, and as long as the usher was acting within the scope of his duty, they were responsible for his acts.^°^ Section 104. — Property lost in theatre. The theatre proprietor is no insurer of the property of his patrons, where the same has not been committed to liis care especially. And where so committed he can only be held liable for his negligence."^''' to furnish t(j tlie company the appeared against him in court, staf^e, scenery, and stage-hands, dill not aher his hal)ility. They were still his servants. HeUl hablc. *"* Thomas v. Springer (1909), VM \. 1). (X. Y.) 040; 119 \. Y. Supp. 400. .Mthough the tiieatre proprietor retained pos.session ami control of the house and sold the tickets of admission he was held not estopix'tl from denying that the employes of the theatri- cal company were his .servants. ^"'' Kpstein v. Gordon (1909), 114 N. Y. Supp. 438. The usher of a theatre took hold of plaintilT's coat, ' called him vile names, struck him, arrested him, and where plaintiff was discharged. There wa.s no justification. Held that the question pre- sented for the jury was whether the usher was acting within the scojx) of his duty. "It is true that there Ls no proof tending to show that the defendants, (the le.ssees) or either of them, in any way ijei-sonally participated in the misconduct complained of, and neither of them can be held liable as joint tort-feji.sors; but this fad does not relieve them from their liability as employers of the »*7/rr." '"• Faltison v. llammerstein (1896), 17 Misc. (X. Y.) 375; 39 336 THE LAW OF MOTION PICTURES N. Y. Supp. 1039. "The man- ager of a theatre, in the absence of a special agreement, is not, unUke an innkeeper and common carrier of goods, upon which classes the common law, from motives of public policy then prevailing imposed an extraor- dinary liability, an insurer of his patron's property though the property' may consist of apparel such as is necessarily or usually worn by the patrons and laid aside by them while attending the play. Hisliability is,at most, that of every person except inn- keepers and common carriers of goods." It was also held that the burden was on the plaintiff to show neg- ligence on the part of the de- fendant. See generally on this proposi- tion the following non-theatrical cases: Barnes v. Stem Bros. (1915), 89 Misc. (X. Y.) 385; 151 N. Y. Supp. 887; Wentworth v. Riggs (1914), 159 A. D. (N. Y.) 899; 143 N. Y. Supp. 955; Mc- Allister V. Simon (1899), 27 Misc. (N. Y.) 214; 57 N. Y. Supp. 733; Wamser v. Browning King (1907), 187 N. Y. 87; 79 N. E. 861; Bun- mll v. Stern (1890), 122 N. Y. 539; 25 N. E. 910; Woodruff v. Painter (1892), 150 Pa. 91; 24 Atl. 621; Bradncr v. Mullen (1899), 27 Misc. (N. Y.) 479; 59 N. Y. Supp. 178; Appleton v. Welch (1897), 20 Misc. (N. Y.) 343; 45 N. Y. Supp. 751; Buttman v. Dennett (1894), 9 Misc. (N. Y.) 462; 30 N. Y. Supp. 247; Bird v. Everhard (1893), 4 Misc. (N. Y.) 104; 23 N. Y. Supp. 1008; Del- mour V. Forsythe (1911), 128 N. Y. Supp. 649; Montgomery v. Ladj- ing (1899), 30 Misc. (N. Y.) 92; 61 N. Y. Supp. 840; Poioers v. O'Neill (1895), 89 Hun (N. Y.), 129;34N. Y. Supp. 1007. CHAPTKH VTIT THE PUBLIC (continued) License Sec. lUo. Wliat is "Motion picture," "Theatrical performance," "Theatre." 106. Necessity for Hcensc. 107. Power to license discrctioiiary — Revocation. lOS. Extent of discretionary power. 109. Right to license on condition. Section 105. — What is " Motion picture," ** Theatrical performance," " Theatre." Just whut constitutes each particular form of theatrical entertainment cannot be stated with any degree of finality. Even as between the several kinds of pictures, such as motion-pictures and stereopticons, the statutes of some states have differentiated.' And it has boon a mooted question whether a motion picture exhiijition given in conjunction with some other business comes within the letter and spirit of statutes regulating motion i)ictures generally. - ^ Block V. City of Chirngn ■ Boisseau v. Scula Am. Co. (l!)0()),239Ill.251;S7X.K. 1011. (Can.) (1013), 22 Can. Cr. Ca.s. An ordinance which referred only .'Jl ; Edward v. McClcUan (VM)), to motion-picture licen.^es, and US X. V. Supp. ISl; ll'eusN not to stereopticon exhibitions blalt v. Bingham (190S), 5S Misc. was held constitutional. (N. Y.) 328; 109 X. Y. Supp. 337 338 THE LAW OF MOTION PICTURES However, there is no longer any uncertainty as to the status of such an entertainment. In the early case of Edison V. Lubin ^ a motion picture was held to be for purposes of copyright merely a series of photographs. Places where they were exhibited were not required to be licensed. Later on, with their development and growing popularity, licensing restrictions became the rule in all the states. Harper v. Kalem,^ which for the purpose of copyright stamped the exhibition as a dramatic enter- tainment, brought it within the then existing statutes regulating theatrical entertainments, and really made it unnecessary and superfluous to pass special restrictions. A motion picture is to all intents and purposes a theat- rical or dramatic exhibition,^ and decisions which seek to draw a distinction between it and the spoken drama are compelled to resort to quibbling.'' X statute which requires a license for a dramatic exhibition or entertain- ment requires a license, unless expressly excepted, for a motion picture. 545; Economopoulos v. Bingham forbids all performances of any (1907), 109 N. Y. Supp. 728; character in a place of public CotinnonweaUh v. Spiers (1912), amusement on Sunda3\ That the 51 Pa. Super, (,'t. 59. phrase "any other entertainment ^Edison V. Lubin (1903), 122 of the stage" is broad enough Fed. (C. C. A.) 240. to include any public e.xhibi- * Kalem v. Harper (1911), 222 tion whatsoever given upon the U. S. 55; 32 Sup. Ct. 20. stage. ■■'Matter of City nj New York '■ Kd wards v. McClellan (1909), {re Ilammcrslein) (1907), 57 Misc. 118 N. Y. Supp. 181. It was held (X. Y.) 52; 108 N. Y. Supp. that a motion-picture exhibition 197. field that Section MSI of was not a "pubHc show" within the Greater New York Ciiarter tiie meaning of a Sunday statute. WHAT I> "MOTION I'KTLKE, ETC. S6'J Tho courts have been greatly divi(ied on what consti- tutes a "theatrical performance," and have included in that category and demanded a Hcense of an orchestral concert given on a raised dais," a performance consisting of the singing of a song at a piano, ^ a pantomime,'-* motion pictures shown in an ice-cream saloon,'" motion pictures ' Mayor etc. of Xeic York City V. Eden Mmee (1886), 102 X. V. 593; 8 X. E. 40. » RiuiHell V. Smith (Eng.) (1848), 12 g. B. 217; 17 L. J. Q. li. 22.-); 12 Jur. 723. The singiiiK of a song at a piano although without scenery or co.stunic wa.s held to be a "dramatic jiieco." It was also held tiiat the hall in which the song was sung was a place of dramatic entertainment. Under this decision semble that any place where a dramatic piece is performed is a place of dramatic entertainment. See al.so: CUirk v. Bishop (Eng.) (lS72),2oL. T. 908. » Day V. Simpson (Eng.) (1865), 18 C. B. X. S. 680. A play in which hut two persons apjx'ar on the stage and the reflection of other pei-sons is thrown uiK)n a mirror in back of the stage in such a manner as to deceive the audience in believing them to actually ap|K?ar is an "enter- tainment of the stage" and the owner of the house, who had pro- cured no license for the .same, was held guilty. '" Weislblall v. Bingham (1908), 58 Misc. (X. Y.) 328; 109 X. Y. Supp. 545. Plaintiff operated an ice-cream salocjn and to at- tract customers gave moving picture exhibitions. Xo admis- sion fee was chargetl. Held that although no admi.ssion fee was charged it was a public perform- ance, a "common show" within the contemplation of the statute and an illegal public jxirformance unless the license issued to "com- mon shows" was secured. To the same effect see: Econo- mopoulos V. Bingham (1907), 109 X. Y. Supp. 728. "I do not think the charging o( an admission fee or the fail- ure to charge a fee changes the situation: but if it lias any l)ear- ing, the affidavits .sliow that the plaintiff collects admission by an extra charge on soda water and the like .sold to |K'ople who arc jX'nnittetl to view the ex- liibition and listen to the music." THE LAW OF MOTION PICTURES fitted up with a vaudeville stage, ^^ a circus/- an opera/^ horse-racing/'* a medical museum/^ a booth/^ a bowling alley/' and an aquarium. ^^ is distinguished from the spoken drama, but the fundamental and really essential element of both is action." ^* Webber v. Chicago (1892), 50 111. App. 110. "There is no more uncertainty as to horse racing in Garfield Park being an exhibition within an enclosure than as to seUing whiskey in a bar room being such a business as requires a dram shop license." ^^ People V. Kennedy (1913), 141 N. W. (Mich.) 887. J6 Fredericks v. Payne (Eng.) (1862) , 1 H. and C. 584. A booth wliich has been erected tempo- rarily is a "place" within the meaning of Section Eleven of the Theatres Act of 1843. [See Tarling V. Fredericks (Eng.) (lcS73), 21 W. R. 785 for that section.] See also: li>u'- tion. 11 lid that as the public were not admitted indiscrimi- nately, no dance license was re- (juired. See also: Marks v. Benjamin (Eng.) (1&39),5M. & W. 565. But see Archer v. Willingrice (Eng.) (1802), 4 Esp. 185. Where though the admi.ssion fee for the dancing was paid to one who taught the dance.s and not to the proprietor, he was recjuired never- theless to obtain a licen.se. See also: Shult v. Lewis (Eng.) (1804), 5 E.sp. 128; Gregory v. Tujfs (Eng.) (18:33), 6 C. & P. 271; (hrgonj v. Tavernnr (Eng.) (1833), or. k P. 280. ^ Giiaglieni v. Matlheivs (Eng.) , .34 L. J. M. C. 116. Where the music and dancing are not tlie chief business of the house but merely a .secondary feature, a license will not be required. Hut see Ilnll v. Green (Eng.) (18.-)3), Ex. 247. ^Oellers v. Horn (1807), 3 Pa. Sup. Ct. 537. Performances given by amateurs by an organi- zation of university undergradu- ates, are not theatrical iM'rform- ances within the purview of the statute, and no license need be procured. Duck v. Bates (Eng.) (1884), 13 Q. B. D. 843. A ix-rformance given by an amateur ilramatic society in a hospital, admis- sion to whicii wa.s by free ticket issued to friends of the jx'r- formers, wa.s held not to be a public jx;rformance. -'* Mark ham v. Southern Con- ser valor 1/ of Mn.sic (1902), 130 N. (\ 276; 41 8. E. 531. A school for musical instruction owned a hall wherein as an incident of its instruction, it gave concerts. Distinguished si)ecialists were con- tracted with to give performances to which the pupils and general public were admit tetl ui)on the |)aynient of an admission fee. The concerts were run at a lo.ecial i:)erson or organ- ization from either obtaining a license or paying the re- quired tax, unless the statute specifically provides for such exemption. The license itself need not be in writing.^" seqtiently «.s a license fee, sec Shelley w. Bethetl (Eng.) (ISS^l), Mnhnnoy City v. Ilersker (1911), 12 Q. B. D. 11. A defendant 231 Pa. :n\); SO Atl. 5.39. who hiid a private house fitted ^'^ Royal Alhcrt Hall v. London. up xs a private theatre turntH.1 Co. Council (Eng.) (1911), 104 it over to another. The latter L. T. 894; 7.5 J. P. 337; 9 L. CJ. R. advertised performanees therein 620; 27 T. L. R. 362. Altliounh lor the benefit of a school for the corporation of Albert Hall has Dramatic Art. Admission \v:is full powers under its charter by ticket which cost i'l Is. to give public performances of Held that inasmucli a.s the staj^e play.s in its buildings, such owner of the house had not pro- powers are not letters patent cured a license he was guilty, to give stage plays, and the cor- irrcs|icctive of the fact that tiie poration must ol)tain a theatre performance wa.s for charity, license. construing Section Two of the '» City of Mohih' V. Kicrmn Theatres Act of 1S43. (1911), 54 So. (Ala.) 102. *^CUy of Boslon v. Schaffer 348 THE LAW OF MOTION PICTURES There is some conflict as to whether a hcense is required for an entertainment for which no direct admission fee is charged. In New York a cabaret was held exempted from procuring a Hcense. ^^ In England, however, the con- trary seems to be the rule."- And Herbert v. Shanley,^^ decided by the United States Supreme Court, subsequent to the New York decision above mentioned, by holding that a performance given at a restaurant to which no direct admission fee was charged, was a public perform- ance for profit, has made the English rule, the American doctrine in this respect. (1830), 9 Pick. (Mass.) 415. A license exacted by the mayor and aldermen need not be in writing. "No formal written license was given to the defendants, but that is not material; for there was a vote of the city that the hcense to the theatre should be renewed, on the pro[)rictors giv- ing bond and paying .11000 a year, and the defendants have proceeded as under a license." ''People V. MarUn (1912), 137 N. Y. Supp. 677; People v. Keller (1916), 96 Misc. (N. Y.) 92; 161 N. Y. Supp. 132. But .see: Weislblatt v. liingimm (190S), FiH Misc. (N. Y.) 32S; 109 N. Y. Supp. .54.'); Economopoulofi v. liinijlmm (1907), 109 N. Y. Supp. 728. *"■ Farrulalr v. liniiihriilqv (Kng.) (1S9S), 42 Sol. Jo. 192; Sarpu v. Holland (Eng.) (1908), 99 L. T. 317; WallY. Tayler (Eng.) (1883), 52 L. J. Q. B. 558; Gregonj v. Tuffs (Eng.) (1833), 6 C. & P. 271; Archer v. Willingrice (Eng.) (1802), 4 Esp. 186; Trailing v. Messenger (Eng.) (1867), 31 J. P. 423; WiUiam.s v. Wright (Eng.) (1897), 13 T. L. R. 551. "Herbert v. Shanlcy (1917), 242 U. S. 591; 37 Sup. Ct. 232. See generally as to defendant's scienter and the manner of use of the premises the folhnving Eiighsh cases: Shelley v. Bcthcll (l^ig.) (1883), 12 Q. B. D. 11; Marks V. Benjamin (Eng.) (1839), 5 M. & W. 565; Gregory v. Tuffs (Eng.) (18.33), 6 C. & P. 271; Syers v. Conquest (Eng.) (1873), 37 J. P. 342; R. v. Rosenthal (Eng.) (1805), .30 J. P. \0\; R. v. Slriiy- nell (Eng.) (1865), L. R. 1 (i. B. POWEK TO LICENSE DISCRETIONARY — REVOCATION 349 Section 107. — Power to license discretionary Revoca- tion. The power to license, by the great weight of authority, has been held to be purely diseretionary in the ofhcial or body in whom it is vested, even though such power may be granted or revoked "at their pleasure." " The courts will not interfere in the exercise of that discretion, nor substitute their judgment in place of the hcensing body, unless that discretion is abused.''' In a leading case the New York Appellate Division held that "The cjuestion which we have here presented therefore is whether the refusal of the commissioner to gi-ant the Hcense is a 'judicial act.' . . . But with that determination when reached the court has no right to interfere. In other words, the granting of licenses is re- ferred to the judgment and discretion of the connnissioner, and there is no authority in any particular instance for 93; Clarke v. Scnrlc (Eiik-) (179:^), 1 Esp. 25; Ikllus v. IkcUe (En^.) (1797), 2 Esp. 592; Rial v. Wil- son (EnR.) (1895), 1 Q. B. 315; }I off man v. Boml (Eng.) (1875), 32 L. T. N. S. 775; Brown v. Nugent (Eng.) (1872), L. R. 7 Q. B. 588; Garrelt v. Messenga' (Eng.) (1S07), L. R. 2 C. & P. 5S;{; liiyuui v. Uannwj (Eng.) (1891), 2 Q. B. 709. ♦* Commonu'callh v. Mdlann (1913), 213 Mass. 213; 100 N. E. 355. *^ People ex rel. Cuniiaktij v. Wurster (1897), 14 A. U. (X. Y.) 5.">0; 43 N. Y. 8upp. 1088. The |X)Wor granted to a mayor to i.-;.>y the courts. See also cases cited in Section lOS. /i*. V. Anhton, ex parte Walker (1915) (Eng.), 113 L. T. 690; 79 J. P. 444. Discu-sses the proposi- tion as to who is entitled to no- tice of apix^al from the refusal to grant a music liceu.-19; 112 L.T. 519;79J. P. 238;31T. L. R. 138; 13 L. (1. R. 541. I At h ridge v. Wilaon (Can.), 8 A. L. R. 178; 8 W. W. R. 424. Statute regulating erection and oi)eration of theatres including licensing control aiul sujxTvisioM of use and ojx'rations of moving picture machines and regulations of exhibition, sale and lejusing of films construed. The The;itrcs Act, ch. 25, 1911-12. /tx parte London <{• Prorincial EL Theatres, Ltd. (lOng.) (1915), 31 T. L. R. 329. County Coun- 352 THE LAW OF MOTION PICTURES As an illustration of the first limitation upon its power, reference may be had to ordinances imposing a specified Ucense fee. Unless the amount of the tax is excessive, the courts will not interfere.^- A statute imposing a Ucense tax upon places of amuse- ment graded according to the size of the city wherein the theatre was situated, was held vahd; ^^ so also, where the tax was upon a graded scale according to the price of admission charged. ^^ A mayor in whom was vested the power to license was permitted to look behind an application to ascertain whether its actual purpose was truly represented, and if not so, to refuse to issue a hcense.^^ cils in considering applications for license under the Cinemato- graphic Act of 1909 are not con- fined to matters relating to safety alone. See also: Ex parte Harrington (Eng.) (1888), 4 T. L. R. 435; C. A. "C% of Dididh V. Marsh (1898), 71 Minn. 248; 73 N. W. 962. A license fee of $125 for six months was held not to be excessive. See in this connection: The King v, Dimock (Can.) , 30 1). L. U. 217; 26 Can. Cr. Cas. 311; 44 N. H. II. 124. Under an Act which imposes generally a license fee of S50 on " public places of amuse- ment," motion pictures may not be required to pay $300 as a license fee. See in tliis connection: Leth- bridge v. Wihon (Can.), 8 A. L. R. 178; 8 W. W. R. 424. Held that in the absence of a special provision the licensing authority had no right to impose a license fee on theatres. " State V. O'llara (1884), 36 La. Ann. 93. To the same efTect: State v. Schonhauscn (1885), 37 La. Ann. 42. " Metropolis Theatre Co. v. City of Chicago (1912), 228 U. S. 61; 33 Sup. Ct. 441. " People ex rcl. (Uimiskey v. Wurstcr (1897), 14 A. 1). (N. Y.) 556; 43 N. Y. Supp. 1088. The EXTENT OF DISCRETION' OF LICENSING P0\\T:R 353 Thoro arc uunicrous iiistaiict's illustrative of the third limitation. The question has usually come up hi cases where the one vested with the authority to Ucense, has either refused to issue or threatened to revoke the license of a theatre because of the exliihition therein of a motion picture which in liis opinion, is obscene, unmoral, seditious or a])t to create race prejudice. The comls have been increasingly prone to give the licensing power wide scope in the exercise of its cUscretion, until now the broad rule followed by the courts seems to be that unless the element of bad faith, cai)ri('iousness or misinformation is ai)i)arent, they will not interfere with the discretion exercised. "These statutory provisions and ordinances, thevahdity of wliich is not and could not well be questioned, nec- essarily delegate to the commissioner authority to issue and to revoke Ucenses according to his judgment and dis- cretion, to be exercised, of course, in good faith and im- partially and conscientiously according to what he beheves mayor may refuse to grant a mayor was justified in tlie con- (hoatrifal license to a dub when; elusion that a lieense for a first- it apfK'ars tliat only prize-fight class theatre was not appli- exlul)iti()iis arc coiitcinplatcd. cable to the j)urj)j v. licit (1916), liiUcr v. Wallace (1914), 100 A. I). 218 N. Y. 212; 112 N. K. 747; (N. Y.) 787; 145 N. Y. Supp. People ex rel. Rota v. Baker 1041; People ex rel. Lodes v. (1910), 136 A. D. (N. Y.) 7; 120 Dep'l of Health (1907), 189 N. Y. EXTENT OJ" 1>I.S( KETH)\ ol MCENSING rOWEU li.j'> This is tlu' laii^iiu^!;(' of tlic Appclhitf^ Uivisi(jii of New York (First Dcpartineiitj with reference to the hhn kiKJwn A. I). (N. Y.) 'jOd; l.il N. V. Sui^p. 3G(); (itnc.stc liecr. v. Ed- gcrton (1910), 172 A. D. (N. Y.) 1()4; 158 N. Y. Supp. 421; ItitUr V. Wallace (1914), IGO A. I). (X. Y.) 787; 145 N. Y. Supp. IWl." Univer.sal Film Mfy. Co. v. Bell (1917), N. Y. Law Journal, June 5th, Grccnbauin, J. 'In- deed it is wholly immaterial what the court's opinion may he as to the wisdom of the conunis- si(jner's action as long as he acted in good faith. The court cannot act as a commissioner of licenses. That the ct)mmissioner did not act arliitrarily or capriciously, it is hut fair to state that the affi- davits submitted indicate that he ba.sed his opinion of the character of tlie j)roduction after he had tlioroughly familiarized iiim.self with its theme, the pictures and (he words employed in its prt\s- entation and considcrwl tlie ef- fect it was likely to pnxluce upon tho.se wiio witne.'vs it. Among tl»c answering affidavits a numIxT of them are maile l)y persons of high standing and by rt*i)rcsen- tatives of civic societies to the effect that tlie play is contra botws morwf. Whether their opin- 187; 82 N. K. 1S7; I'iexotlo v. Bmrd of Kihiailum (1!>14), 212 N. Y. 4();{; 100 N. 1-:. ;«)7; MalUr of Fnnikliii Film Corponition (1917), 253 Pa. St. 422; 98 Atl. 62.'i; Van Nonlen y. Sewer Com tn'r (1904), «K) A. 1). (X. Y.) 555; 84 N. Y. Sui)p. 445; Bainbndge V. City of Minneapolis (1915), 131 Minn. 195; 154 N. W. 964. "For decisions in which the same rule is stated but mandamus was issued see: I'J. C. T. Club v. Stale Racing Comm'n (1907), 190 N. Y. 31; 82 N. E. 723; Cosby V. liobin-son (1910), 141 A. D. (X. Y.) 050; 120 X. Y. Supp. 540. "There is no evidence that the threatened action of the defend- ant is in bad faith, and it must therefore! i)e presumetl tliat he is acting honestly in the exercise of fair and impartial discretion and judgment. City of Buffalo V. //(■// (1903), 79 A. D. (X. Y.) 402; 7!) X. Y. Supp. 449. "The merits of the action should not be determined on confhcting aflidavits, nor should a temj)orary injunction i.ssuc in sucli ca.se against the official in whom the law has vested the duty of acting in tlic premises. MaUcr of W'hitlen (1913), 152 356 THE LAW OF MOTION PICTURES as ''Birth Control," in which case the order of the justice at special term enjoining the commissioner of hcenses from in anywise interfering with the exhibition of the picture was reversed." ions are correct or not it is not necessary for the court to pass upon, but they are merely re- ferred to as bearing upon the question of whether or not the defendant has abused his dis- cretion. Under the statute the commissioner is to consider whether the play is 'immoral, indecent or against the public welfare.' One of the definitions of the word 'decency' found in the Century Dictionary is 'propriety of action, speech, dress, etc' What constitutes decency, or, in other words, what is propriety of action, must be determined by standards in vogue among highly civilized peoples and not those that maj^ prevail among the Fiji or South Sea Islanders. Lewd men and women have no sense of decency, and what may be regarded a.s decent by one person may not be thus regarded by another. The discnition hon- estly exercised by the comniis- sioiicr in the discharge of his duties iiiMV not be overthrown by the court excepting only wiien; it may be .shown lli;it liis actions were influenced by corrupt or dishonest considerations, the bur- den of proving which rests upon the moving party." 5^ For other cases where the licensing power altevi'pted to en- join the exhibition of an obscene or immoral -picture see: Universal Film Manufacturing Co. v. Bell (1917), N. Y. Law Journal, Greenbaum, J. (The Hand that Rocks the Cradle); Sociological Research v. Waldo (1914), 83 Misc. 605; 145 N. Y. Supp. 492 (The Inside of the White Slave Traffic); Genesee Recreation Co. v. Bingham (1916), 172 A. D. (X. Y.) 464; 158 N. Y. Supp. 421 (no title given in decision); Block V. Citij of Chicago (1909), 239 111. 251; 87 N. E. 1011 (James Boys and Night Riders); Stein V. Bell (1917), N. Y. Law Journal, May 2nd (The Awaken- ing of Spring); Ivan Film Pro- ductions V. Bell (1916), N. Y. Law Journal, December 5 (The Sex Lure). For cases where a production grant a license iM'rmitting theexhil)ition of a photoplay entitled "The Frank Ca.-^e" ba.sed on the inci- dents of the famous murder trial in (!e()rgia. Hambridijc, Jr. \. City of Min- iwapulis (1915), 131 Minn. 195; l.')4 X. W. 90^1. Action wa.s brought to enjoin mayor from re- voking license of theatre wherein plaintilT had arranged to exhil)it tlie film "The Birth of a Xation." //(/'/ that mayor wa.s not abusing his discretion or exercising it capriciously. «« Maltcr of Ormsby v. Bell (1916), 21S X. Y. 212; 112 X. K. 7 17. Since tiie jiower of the coin- mis.si()ner to grant a license to a motion picture theatre is dis- cretionar>', it wa.s held that it w;us not an abu.sc of liis dis- 358 THE LAW OF MOTION PICTURES It was also held to be a proper exercise of discretion to refuse a license because of the proximity of the building wherein the motion pictures were contemplated to be given, to a church and school." And, in England, the courts refused to interfere where a municipahty refused a Hcense for a motion picture theatre, when the applicant for the license was a com- pany of which the majority of the stockholders were alien enemies.^- Attention, however, may be here called to cases where it was held that where there had been full comphance with the requirements of a statute for the issuance of a license for a motion picture theatre, the apphcant was prima facie entitled to such license.®^ Section 109. — Right to license on condition. Provisions contained in a licensing act requiring the payment of specified sums, as a condition precedent to the issuance of a hcense, have been held vaUd.''^ cretion to refuse a license bo- nor (1912), 77 Misc. (X. Y.) 57G; cause the owner of the adjacent 137 N. Y. Supp. lOG. property stored comlMistibles and " R. v. London County Cotmcil, would lose liis permit if the theatre ex parte (Eng.) (1915), 2 K. 13. were opened. 482; W. N. 154; 84 T.. .1. (K. H.) See also: Matter of Armstrong \. 1795; 113 L. T. 122; 31 T. L. R. Murphy (1901) , 65 A. D. (N. Y.) 329; 70 J. P. 417. 123; 157 X. Y. Hupp. 534; City '^^ Walker v. Fulmnan (1914), of Buffalo V. Chndcnyne (1889), 84 Misc. (X. Y.) 118; 140 X. Y. 7 X. Y. Supp. 501; afT'd 134 Supp. 519; Kries v. Dick (1914), N. Y. 103; 31 X. K. 443; French 141 Pac. (O)!.) 505. V. Jonefi (1900), 191 Mass. 522; <>* Higgim v. Lacroix (1912), 78 X. E. 118. 119 Minn. 145; 137 X. W. 417. '^^ People ex rcl. Moses v. (lay- A license fee of .S2(K) as a piere(iui- RIGHT TO LICENSE ON CONDITION :V)Q Where the licensing power is vested by statute in a political subdivision of the state, it may insert and enforce a stipulation that the theatre shall be kept open only durinji; specified hours.^'" site to operate a motion-picture theatre in a villaRo hold not to \)e excessive. "The village is presumably a growing community now having more than one thousand inhabi- tant*^. These shows are usually carried on every day in the week with several performances each day. Fifty-five cents per day does not appeal to us to be so liigh that it necessarily results in prohibiting moving picture shows from locating at Deer River." Park V. Morgan (1912), 64 Fla. 414; 60 So. 347. An ordi- nance imposing a license tax upon theatrical shows was held valid. Baker v. Cily of Cincinnati (1860), 11 Ohio St. .534. A pro- vision in a licensing act whicii exact<'d the payment of .SG;^.')!) from the applicant for license held legal. To the same effect: CiUj of Boston v. Schajfer (KS.30), 26 Mtuss. 415; Hodges v. Mayor (1840), 21 Tenn. 61; State v. D'Hara (1884), 36 La. Ann. 93; State v. Schonhniiser (188.5), 37 La. Aim. 42; City of Diduih v. Marsh (1898), 71 Minn. 248; 73 N. VV. 962; Metropolis Theatre Co. V. City of Chicago (1912), 228U. S. 61;.33Sup. Ct.441. People V. Coleman (18.54), 4 Cal. 46. For an exhaustive sum- mary of the right of the state to tax trades, professions and oc- cupations. See in this connection: Orton V. Brown (1858), 35 Miss. 426. Discussing a tax of S25 a day im- posed upon a circus the court said: "Hence the law ta.xes the ex- hibition as a matter of public policy, and thereby gives the right to make the exhibitions upon payment of the sum re- (juired. This, in effect, is a license to do an act, and not a tax MIX)!! proix^rty; and therefore when the- sum requireil is paid, the right is conferred without further exaction." In other words where the owner had paid his tax, he was not re- (luiretl to pay an additional county tax. ** People ex rel Kielcy v. lA-nt (191.5), 166 A. D. (X. Y.) .5.50; 360 THE LAW OF MOTION PICTURES The applicant for a license may also be required to pledge himself not to apply for a hquor Ucense, as a con- dition to the granting of the theatre Ucense.^^ And generally, the hcensing power may impose condi- tions for the grant of the hcense,''^ and reasonable Umits may be placed upon the exercise of the rights granted thereunder.^^ It may not, however, impose a condition that the theatre shall remain closed on Sunday, as that in the language of the courts "must be deemed 'tyrannical' and a usurpation of power and not 'discretionary' ... for the mayor thus makes a Sunday law unto himself and seeks to impress it upon the community in hostihty to the general law of the state and judges that of which the legislature is the sole judge." 69 152 N. Y. Supp. 18. "A license may be conditionally granted. It may be given subject to cer- tain reasonable hours of opening and other Hmits upon its exercise." 6" Queen v. County Council (Eng.), 2 Q. B. D. 3S6. The County Council may require, as a condition to granting a theatre license, that the appUcant pledge; himself not to apply for a liquor license. " R. V. YoiLshirc Covnty Coun- cil (Eng.) (ISUO), 2 q. ii. :iS(i; Manchesler Palace v. Manchesler Corporation (Eng.) (1898), 62 J. P. 425; R. V. ShcerncKn County Council (Eng.) (1898), ()2 .1. P. 56.}, C. A. And as to procedure where li- cense is opposed see: Royal Aqua- rium Soc. V. Parkinson (1892), 1 Q. B. 431 , C. A; R. v. London Co. Coumil (Eng.) (1892), 1 (^ B. 190; R. V. London Co. Council (Eng.) (1894), 71 L. T. 638; Leeson v. General Council (Eng.) (1889), 43 Ch. D. 300, C. A. •■'» People ex. rcl. Kieley v. Lent (1915), 100 A. D. (N. Y.) 550; 1.52 N. Y. Supp. 18. ''^Klinqer v. Ryan (1915), 91 Misc. (N. V.) 71; 153 N. Y. Supp. 71; 153 N. Y. Supp. 937. Re-affirming the doctrine of People ex rel. Kieley v. Lent, that since a municipality could not enforce a Sunday closing ordi- RIGHT TO LICENSE ON CONDITION 361 Where the theatre license is issued by one bureau and the liquor license by another, the theatrical licensing bureau is not thereby necessarily deprived of its control over the sale of licjuor in the theatre. The licjuor licensing bureau may be reciuired to first secure the consent of the other bureau before issuing its license to the theatre."" naiu-o !)>' finos or imprisonment unless exprc-ssh/ nulhorized by the I>egislature, it could not accom- plish the same purpose by the conditions of a license. But see: A7/w v. No. American Theatres (Eng.) (1915), 2 K. B. 61; 112 L.T. 101 S; \V. N. 61; 79 J. P. 297: i;} L. (".. H. 735; 84 L. J. (K. Ji.) 1077; :U T. L. U. 201. A condition contained in a license, that the theatre be kept closed on Sunday was held valid, and might lawfully be im- posed. Also to same efTect, London Co. Council V. Bcrmomhey Bioscope Co. (Eng.) (1915), 27 T. L. R. 141. In this connection see: City of Mnhilc V. Kin- nan (1911), .54 So. (Ala.) 102: Yorkrille v. Bing- ham (l!K)!)),(n Misc. (X. V.) mG; US N. Y. Supp. 7.5;i. See also: Theatre De Liix^ v. GMhill (Eng.) (1914), 31 T. L. R. 1.38; 112 L. T. 519. A theatre licen.se was granted ujwn comli- tion that no child under ten years of age should be allowed t<> attend under any circumstances after 9 P. M. Held, that the act was ultra vires ujxjn the ground that there wa.s no connection between the ground ujxjn which the condition was impo.setl and the .subject matter of the license. Dissenting opinion by Atkin, J., that county c Wm. IV, c. 39, s. 7 and that the Licensing Act of 1S72 did not api)ly. CHAPTER IX THE PUBLIC (continued) Regulation Sec. 110. Buildings — Distances. 111. Standees— Aisles — Closing. 112. Operator and booth. 113. Firemen — Fire-escapes — Exits. 114. Admission of cliildren. 115. Regulation amounting to prohibition. 116. Prohibition — Immorality. 117. ^^^lo is liable for penalty. 118. Ticket "Scalping." 119. Censorship. 120. Sunday performance. Section 110. — Buildings — Distances. It is a valid exercise of the police power to regulate the construction of the theatre building/ the nature and kind of materials to be used in certain parts therein and the like.2 The authorities may also demand that changes be ^ McCke V. Kctmcdy (lOOS), auditoriums on the level with the 114 S. W. (Ky.) 298; People v. street was held constitutional. Bime (1910), 248 111. 11; 93 M. G. v. Shoreditch Corpora- ls. E. 327. tlo7i (Eng.) (1915), 2 Ch. 154; Jewel Theatre Co. v. Wimhip 79 J. P. 309; W. N. 1S4; 31 T. L. (1914), 144 N.W. (Mich.) 8.35. A H. 400; S4 L. J. (Ch.) 772; 59 statute requiring that all motion Sol. .lo. 439; 112 L. T. (>2S; 13 piftiirc theatres shall have their L. (i. It. 11 II. The authorities 302 lUILDlNGS — DISTANCES 303 made in tho builclinp; to reduce fire hazards and other risks.'' Wiiere, liowever, the relator had ('(luipi)ed and used a building as a motion picture theatre, the mayor of the City of New York was held to be not authorized to withhold a license from him under the provisions of an ordinance which was passed subseciuent to such equip- ment.' It was held in England that a tent was not a "place" poriiiittcd the ownors of a public tlie first instance, and (luite a KwiininiiiK l)atli to liirn it into a motion i)icture tiicatic '/e. V. Hainiaij (Kng.) (1891), 2 q. n. 709. *Inre Walker (1914), ^ Misc. (N. Y.) 118; 146 N. Y. Supp. 519. Where the relator liad ecjuipjx'd and used a ])uilihn}; a.s a motion picture theatre prior to December 1st, 1912, the Mayor of the city \v:vs not autliorized to witliliold a Hcense from him under the ])rovisions of an or- (Hnance which was passed in March, 1913. "If the mayor may withliold a license then it is witliin his power to destroy vahial)le j)roi>- erty rights of owners who, acting under com|)etent authority have invested large sums in the con- struction of moving picture .shows, by simply refusing to renew such licenses when such licenses ex- pire. It is one thing to refuse a lic(>nse to i)uild and construct in dilTerent thing to refuse to {xjrmit the continued use of such a theatre when once lawfully con- Ktructe(). Defendants had .secured a jxTinit to alter a .stable into a theatre in accordance with plans theretofore filed by them. The plans filed by defend- ants conformed to the laws then in force. Subset panics, statutes and ordinances have been passed i)njhil)iting patrons from standing in the aisles of a theatre' ^^^lil(' in an early 137 N. Y. Supp. 196. Where the power to grant licenses for mo- tion-picture shows is vested solely in the Mayor, it is not an abuse of his discretion to refuse a license to an applicant for a site next to a public school and opposite a church, where it is shown that parents have rcinonst rated, and clergy protested against the Is- suance of the license. Nahser v. City of Chicago (1916) , 271 111. 288; 111 N. E. 119. It was held that under its police power a municipal corjwration could refuse to grant a license for a moving picture tlieatrc which wtus situated within two hundred feet of a church. See also: Matter of Kohn (Wag- ener, Sis.son) (1917), N. Y. Law Journal, Mi\y'2\);(l()o' Waldo V. Seelig (1911), 70 Misc. (N. Y.) 254; 12G N. Y. Supp. 79S; aff'd 146 A. D. (N. Y.) 879; 130 X. Y. Supp. 1133. Action was brought by the Fire C.'onnnissiouer to recover a pen- alty from the proprietor of u theatre for ol)structitig tlie aisles in his theatre. Held that the Hpace directly back of the seats of the main floor was an "aisle." ''- Potter V. Watt (Eng.) (1914), 84 L. J. (K. B.) 394; 79 J. P. 212; 112 L. T. 508; 31 T. L. H. 84. The respondent was found guilty of permitting people to stand in the aisles of his theatre, in violation of the Cinemato- graph Act of 1909. The fact that he had not in- stalled the full number of .seats in the theatre was no justifica- tion. '^Sturgis v. Coleman (1902), 38 Misc. (N. Y.) .303; 77 N. Y. Supp. 886. Wliile the side- aisles of a theatre were much wider than the minimum pre- scribed by law, it was held, n('vertliele.ss, to l)e a violation l(» place stools and chairs therein, even though i)ermanent seats might have been built u]). OPERATOR AM) BOOTH 3G7 A tlioatrc exit may open upon an alley." Regulations as to closing are reasonable and valid. '^ Section 112. — Operator and booth. It is a reasonable exercise oi the pohce power to recjuire all i)ersons operating motion picture machines to submit to examinations before obtaining a license.'® "The danger to life and property incident to the use of moving picture machines when operated by incompetent persons is known to all. The films used in connection with the machine are highly explosive and dangerous in their character, and if not properly managed and cared for are Hable to explode." ^^ " (^'ity "f ImUannpulis v. Miller (1!)07), ION Iiul. 285; 80 N. K. 620. Action fur violation in niaiiitainin}:; an alloy entrance to the theatre. Held that the ordinance was invalid in that it deprived the defendant of the use of a public highway. " People ex rel. Kicley v. Lent (1915), 166 A. D. (X. Y.) 550; 152 N. Y. Supp. 18; aflf'd 215 N. Y. 626; 109 X. E. 1088. Gallagher \'. Riuld (IOur.) (1898), 1 Q. B. 114. The time for ch.siiig under the Licensing Act of 1S74 held to apply ctjually to theatres and to nuisic-halls. .4.S to whether an ordinance re- quiring all female patrons attend- ing theatrci, motion picture ex- hibitions or other amusemetUs to remove their lulls wan valid see: Oldhcow V. Citu of Atlanta (1911), 71 S. E. (tlu.) 1015. '« Slate ex rel. Ebert v. Loden (1912), 117 iMd. 373; 83 Atl. 564. A statute which required all persoas to submit to examination before obtaining a licen.se as motion-picture ojx^rator was held constitutional. '' State ex rel. Ebert v. Loden (1912), 117 Md. 373; 8.3 .\tl. 564. Victoria Pier Syndicate v. liecie (Eng.) (1912), 28 T. L. R. 443. The word "inflammable" as used in the Cinomctographic Act of 1909 is not hmitcd to films which are "inflanunable" only while being useil in the pro- ecting machine. 368 THE LAW OF MOTION PICTURES The booth m which the machine is inclosed may also be required to be fireproof ed.^^ It has been held that an officer entering the theatre premises for the purpose of making an inspection to see whether inflammatory films were being used, may make other observations as well, and will not be considered a trespasser. ^^ Section 113. — Firemen — Fire-escapes — ^Exits. The hcensing powers have the undoubted right to have firemen inspect the theatres and remain throughout the performances.-" But they may not compel the proprietor of the theatre to pay for such fireman, for that would be manifestly unfair. As one judge said, they could appor- tion a goodly number of fu-cmen and policemen tlii'ough- out the amusement places of the city, and thereby saddle such proprietors with the cost of maintaining almost the entire fire and pohce departments.-^ ^^ Mailer of Whitten (1912), '-^ City of Hartford v. Parsom 152 A. D. (N. Y.) 506; 137 N. Y. (1913), 87 Conn. 412; 87 Atl. Supp. 360. It was liold not to 736. Hehl that where statute be an abuse of discretion to required that a fireman or police deny a license because the mo- officer should ]:)e stationed in tion picture 'booth was not fire- each theatre during performances proofed. and was silent as to who shall "Mc\'iltie V. Turner (Eng.) pay such person, tlie obligation (1915), 60 S. J. 238; 113 L. T. to pay rested upon the inunic- 982; 13 L. G. R. 1181; 79 J. P. ipality and not upon the owner (Journal) 400. of the theatre. Held further also 2" City of Hartford v. Parsons that such statute was reasonable (191.3), 87 Conn. 412; 87 Atl. and proper. 7'M); City of Chicago v. Wehcr ('it;/ of ('liiauio v. Wclwr {l*.)\0) , (1910), 246 111. 304; 92 N. E. 859. 210 111. 304; 92 N. E. 859. Held FIUE.MEN — FIRE-ESCAPES — EXITS 3G9 Safeguards against fire and attendant loss of life arc of prime importance \vliere theatres are concerned, and the regulating powers may require any j^rccaution deemed necessar}' in that resjiect. For that reason, statutes and ordinances regulating {ire inspection have been upheld as constitutional and reasonable,-- as well as acts requiring exits, fire-escapes, fire-extinguishers and the like.-'' In addition, the penalties for infraction are severe and rigidly enforced.-' that while the city might pass an ordinance compcHing the theatre to have a fireman in attendance, the proprietor of the theatre could not be compelled to pay for the fireman. To the same effect see: Waters V. Leech (1840), 3 Ark. 110; but see contra: Tanneyibaum v. Rehm (1907), 152 Ala. 494; 44 So. 532; Cily of New Orleans v. Hop Lee (1901), 104 La. 601; 29 So. 214; Harrison v. Baltimore (1843), 1 Gill. (Md.) 2(>1, wlicre the pro- prietors were comi)clled to pay. " Jeup V. State Fire Marshal (1914), 182 Mich. 231; 148 X. W. 340. A statute regulating the operation and construction of tlieatres and moving picture ex- hibitions, providing for lire in- spection and issuance of licenses was held constitutional as it did not conflict with provisions of the constitution prohibiting pius- sage of local or special acts or in- vade the constitutional require- ments for municipal charters and local self-government. " Roumfort Co. v. Delanerj (1911), 230 Pa. St. 374; 79 Atl. 653. An act requiring exits, fire escapes, fire extinguishers for buildings used as theatres and other places where the pubUc as- sembled was held valid. R. V. Ilannay (Eng.) (1891), 2 (J. B. 709. The authorities may demand that changes be made in the building to reduce lire hazards. =♦ For liability to penalties for infraction of the fire vegxdationH see: Fire Department v. Hill (1891), 14 N. Y. Supp. 158; Fire Department v. Stetson (1887), 14 Daly (X. Y.), 12.5. ^Vllere the lessees and managers were held liable even though the house had been leased away for a period. 370 THE LAW OF MOTION PICTURES Section 114. — Admission of children. The hcensing power may regulate how and when and under what conditions children may be admitted to a theatre. In many states and cities statutes and ordinances have been passed making the admission of a child without a guardian a criminal offense.^^ In such case, however, a ''guardian" has been construed as not necessarily being a legal guardian, but as meaning even a neighbor or friend.-^ The fact that the person admitting the minor is de- ■^^ People V. Trippi (1912), 152 A. D. (N. Y.) 717; 137 N. Y. Supp. 599. The conviction of defendant for admitting minors under the age of sixteen to a moving picture show in viola- tion of section 484 of the Penal Law of New York was sustained. See also: People v. Jensen (1904), 99 A. D. (N. Y.) 355; 90 N. Y. Supp. 1062; aff'd 181 N. Y. 571; 74 N. E. 1122. 26 People ex rel. Jacques v. Fla- herty (1907), 122 A. D. (N. Y.) 878; 107 N. Y. Supp. 415; aff'd 191 N. Y. 525; 84 N. E. 1118. Under a statute providing that "a person who . . . admits to or allows to remain in any . . . theatre . . . owned, kept or man- aged by him in whole or in part," any minor under the ago of sLv- toon uiiloss accompanied by its parent or guardian was guilty of a misdemeanor. Held that the ticket taker was not included as one of the persons liable under the statute. See also: People v. Sammck (1908), 127 A. D. (N. Y.) 209; 111 N. Y. Supp. 11, for a con- struction of the above mentioned statute. The court held that the owner of a motion picture theatre could not be convicted under the statute where there was no proof that the place was injurious to the health and morals of the minors. The court also held that the word "guardian" in the stat- ute did not necessarily refer to a legal guardian but might refer to a neighbor or friend. To the same effect as the ]mn- cipal case is People ex rel. Jacques V. Sheriff (1907), 122 A. D. (N. Y.) 878; 107 N. Y. Supp. 415; alT'd 191 N. Y. 525; 84 N. E. 1118. UKCILATION A.MOl .\TlN(i T(J I'UUHIlilTKJ.N ;i7i coivod as to liis age is no defense for a violation of the statute.-' The hcense may als(j provide; that rliildrcn under a specified a^e shall not Ijo admitted after a certain hour of th(> niirlit.'-'^ Section 115. — Regulation amounting to prohibition. In Illinois it has been dehnitely settled that the power to regulate does not include the power to prohibit; if it is sought to i)rohibit, a nuisance must be estabhshed.-"^ And this rule has been followed in several of the other states of the union. ^° ^ Rex V. Palon (Can.) (1911), 20 Out. W. Kcp. 533. ** Theatre I)c Luxe v. G led hi II (Eiig.) (1915), 31 T. L. R. 138. *» Xahser v. City of Chicago 091G), 271 111. 2.S8; 111 N. E. 119. Clause 11 of the ordinance gives the city the same jxiwer in that rcsjxict as the state ijosscsscd, which is similar to the Ameiula- tory Act of 1901 of the Laws of New York whore the Hoard of Aldermen of New York City was given power to pa.ss ordinances of a restrictive character ui"K»n places of amusomont within the City of Now York. In tills case it is held that it would he a valid exercise of the police iH)wcr to enact a law pro- hibiting a motion picture sliow within 200 feet of a church, since such a sIkjw in such proxim- ity would constitute a nui.>), 240 111. 33S; 88 X. E. 831; (1910), 248 111. 11; 93 N. E. 327. '«A'n'er v. Mayor etc. (1914), 21) Col. App. 150; 141 Pac. 505. //(/'/ that a local ordinance regu- lating the running of motion- jiicturc theatres wjis void .us it nhsoliitely prohibited the same in the discretion of the local authori- ties. See also: Matter of O'Rourkc (1894), 9 Mi.sc. (N. Y.) 564; 30 X. Y. Supp. 375. But sec in this connection: Iliygim v. Lacroix (1912), 119 Minn. 145; 137 X. W. 417. "To say the Iciust, opinions are quite at variance a.s to the merits of moving picture shows as an in- 372 THE LAW OF MOTION PICTURES This rule, however, does not deprive the Ucensing power from prohibiting motion picture exhibitions or other forms of amusement in certain parts of a town or city.^^ Section 1 1 6. — Prohibition — Immorality. It is within the pohce power of the state to prohibit the exhibition of any picture that is hcentious, obscene, corrupt, seditious or apt to cause riots and disturbances, and this power may be delegated to the municipaUty.^^ fluence for good or evil in a com- munity. It must therefore be classed among those pursuits which are liable to degenerate and menace the good order and morals of the people, and may therefore not only be licensed and regulated, but also prevented by a village council." " Dreyfus v. City of Mont- gomery (1912), 58 So. (Ala.) 730. Ordinance prohil)iting motion pic- ture shows in certain parts of a city was held valid. See also: Section 110, p. 364, for in.stances where licenses were refused because of proximity to a church or school. " Sociological Research v. Waldo (1914), 83 Misc. (N. Y.) 605; 145 N. Y. Supp. 492. The police inU'rfrrcd with the exhibition of pluintifT's film, "Tlie Inside of the Wliitc Slave Traflic," descril)ing the working of prostitutes. Tliis action was brought in equity to enjoin the police from interfering with the exhibition of the pic- ture. Held that a court of equity would not interfere with the police in enforcing the criminal law. Held further that the ex- hibition of a picture of the kind in question was not entitled to protection by a court of equity. City of Chicago v. Shaynin (1913), 258 111. 69; 101 N. E. 224. A municipal corporation may pro- hil)it the giving of exhibitions which tend to corrupt public morals or piindcr to morbid tastes and arouse the sexual desires. Block v. City of Chicago (1909), 239I11.251;87N. E. 1011. Holds that the city of Chicago may regulate motion picture theatres so as to prohibit tlie exhil)iti()n of immoral or obscene pictures. Brewer v. Wy?we (1913), 163 N. C. 319; 79 S. E. 629. Action rROMIIUTION IMMORAMTV 373 It is no dofonso to alloRo that the picture teaches a moral lesson,'''' nor need tliere be any exposure of the i)erson to niai\e it ol)scene." fur falso arrost and imprisonment. The dofciulaiit Stcll, chief of pwlice, arrested plaintiff under a statute permittiuR the police to prevent or suppress an indecent or immoral show, without a war- rant, where the exhibition was imminent. Held that such a statute was constitutional. Universal Fi!m Mfg. Co. v. Bell (1017), X. Y. Law Journal, June 5, (Ireenbaum, J. The jiliotoplay involved was entitled "The liand that Rocks the Cradle." See excerpt from opinion on p. 355. Mesaage Photo Plat/ Co. v. Bell (1917), New York Appellate Divi- f?ion, N. Y. Law Journal, July 20. The court on appeal refused to interfere with a license commis- sioner who threatened to revoke the license of a theatre where the exhibition of a photoplay en- titled "liirth Control" was in contemplation. ^* People V. Doris (1898), 14 A. D. (N.Y.) 117;43N. Y. Supp. 571; appeal dismis.se(l 153 N. Y. 078; 48 N. K. IIOO. A pan- tomime entitled "Uran>j;e Blos- Sec excerpt contained on pp. 35:i and 3.54. See in this connection: (!cne»ec Recreation Co. v. Edgerlon (1916), 158 X. Y. Supp. 421; Fox v. Mc- Clellan (1e put before the public, and it ap- pearing that the judgment of the defendant in preventing its ex- hibiticm according to defendant's brief is bascil ujion the judgment of an un(jfficial body and his deputy, Mr. Kaufman, and not upon his own, and that by de- fendant's own testimony the play is unobjectionable, and that the reason assigned by defendant himself is insufficient to justify him in refusing to allow it-s ex- hil^ition, and that unless defend- ant is restrained there will \)C no way by which the plaintiff, as matter of right, will be able to tost the question. I feel in jus- tice to the plaintiff that the de- fendant should \)C restrained and that the relief pmyeoards and elsewhere are objectionable. The power of the commissioner of licenses to suspend or revoke any license or permit Issued by him is undoubted, but it is ecjuully clear that the power cannot be exercised arbitrarily or upon grounils that are entirely foreign to the commissioner's jurisdic- tion. The commi.ssioner's juris- diction for his official action in this ca.se must be found in sec- tion 41, chapter 3, article 2, of the C(xle of ()rdinanc(^s of the City of New York, which reads as follows: "Sec. 41. Public Morals. The inspectors of the 378 THE LAW OF xMOTION PICTURES department of licenses shall in- \'estigate the character of exhibi- tions in motion picture theatres and open air motion picture theatres, and shall report to the commissioner any offense against morality, decency or public wel- fare committed in said exhibi- tions." Plainly it is the "char- acter of exhibitions" and offenses "committed in said exhibitions" wliich, under this section, con- stitute the subject matter of the commissioner's jurisdiction. The method of advertising a play may be disgusting, offensively sen- sational and even dishonest, either on billboards or in the newspapers or elsewhere, but this has nothing to do with the character of the exhibition itself and is obviousl}'' not an offense committed in the exhibition. Whether it is de- sirable and necessary to give the commissioner of licenses juris- diction over methods of adver- tising and the selection of names for plays is not for the court to say. Plainly, however, no such autliority has been vested in the commissioner, and he has no more legal right to revoke the license of a theatre on these grounds than he would have be- cause the mf»r:il chnraftor of flie authfjr of a play or of the actors employed to produce it was bad. If it appeared that the title of the play was exhibited in the theatre as a part of the film or production, a different question might be presented, but there is no proof that such is the case. There is another feature of this case, however, that should be considered. That the name and the method of advertising invite the public to a prurient and dis- gusting performance is only too obvious. The performance it- self, however, is said to be a clean one, as indeed it would have to be to obtain the sanction of the commissioner. So it is established that the plaintiff is inviting the public to the theatre upon false pretenses and seeking to capitalize whatever degenerate interest there may be created by tiie use of this name and the posters that go with it. Further- more, the name and the posters taken together are indecent, nasty and offensive. Such practices result, too, in bringing odium unjustly upon the many re- spectable members of the im- portant motion picture industry. The plaintiffs do not come into court with clean Imnds, and upon this ground the motion for an injunction is denied." WHO IS LIABLE FOR PKNALTV 379 Pictures that tend to croato race fcelinp; and threaten disturl)ances of the i)eace may be prohibited,'"'' as well as exhibitions of prizefighting." On the other hand, it has been held tliat ballet dancing does not constitute ground for suppression.^'' Section 117. — Who is liable for penalty. The courts have held proprietors of places of amusement to a strict accountability for violations of statutes gov- erning the licensing and control of such places and have ^* Bainbridgc , Jr. v. City of Minneapolis (1915), 131 Minn. 195; 154 N. W. 964. On an at- tempt to enjoin tlie Mayor from revoking the license of a theatre wherein tlie film "The Birth of a Nation" was about to be pro- duced. Edchlein v. Bill (1915), 91 Misc. (N. Y.) G20; 155 N. Y. Supp. 590. The court refused to interfere with the exercise of discretion rested in the Com- missioner of Licenses wlierc he refused to grant a license per- mitting the exhibition of a photo- play entitled "The Frank Ciuse" based on the incidents of the famous murder trial in (Jeorgia. ^nVebcr v. Freed (1915), 2.39 II. S. 325. Held that Congress had power to prohibit the in- troduction, imix)rtation or trans- portation from abroail of any tangible object, and that prize- fight films of the Willard-Johnson fight came under that prohibi- ti(jn. Knlisthenic Ex. Co. v. Emmons (1915), 225 Fed. (D. C.) 902; atT'd 229 Fed. (C. C. A.) 124. Plaintiff, tlie owner of negative films of the Willard-Johnson prize- fight, sought to make entry of them with the defendant, col- lector of the port of Portland, Me. The court hold that under Section 1041(i of the U. S. Com- I)iled Statutes of 1913 this film could not be brought in. " The King v. Mc.Xuliffe (Can.) (1904), S Can. Cr. Cas. 21. Ballet dancing is not in itself indecent and in order to convict the pro- prietor of a theatre of conducting an immoral show, affirmative evidence {»f iiuleconcv and ob- .scenity must lie pro<.iuced. 380 THE LAW OF MOTION PICTURES not permitted them to relieve themselves of liability by showing that they were not guilty of the wrongful acts, or that they had no knowledge of the misdeeds.^^ In a case where an ordinance prohibited the proprietor of a place of amusement from causing, consenting to, or "allowing" certain exhibitions, a proprietor was held liable, although he himself did nothing, was ignorant of the act or made ineffectual attempts to stop the wrongful act.''° And even where the premises had been let to some third party but defendant furnished the ushers and other employes he remained liable."^ But when the proprietor gives up all control of the premises and his lessee is in complete possession he is not hable.^2 ^"^ Bruce v. McManus (1915) (Eng.),3K. B. 1; 113 L. T. 332; W. N. 170; 79 J. P. 294; 84 L. J. (K. B.) 1860; 31 T. L. R. 387; 13 L. G. R. 727. Even though a motion picture is managed or superintended by a subordinate, the owner himself is liable for a penalty under the statute. Hee also: Waldo v. Seclig (1911), 70 Misc. (N. Y.) 254; 12G N. Y. Supp. 798; aff'd 146 A. D. (N. Y.) 879; 130 N. Y. Supp. 1133; Pot- ter V. Watt (Eng.) (1914), 84 L. J. (K. B.) 394; 79 J. P. 212; 112L.T. 508;31T. L. R. 84. <" Matter of Hammer stein (1907), 52 Misc. (N. Y.) 606; 102 N. Y. Sii[)i). 9.50. *' Fire Department v. Hill (1891), 14 N. Y. Supp. 158. De- fendant, lessee of theatre prem- ises, had let to another the privilege of giving performances for four weeks. During these performances, persons were per- mitted to stand in the aisles in violation of the fire regulations, and suit was brought for a pen- alty. Defendant furnished the ushers and other employes. Defendant held liable, even though the servants were under the direction of tlie manager of the performance, and he claimed ignorance of the infractions. l-'ollowing Fire Dept. v. Stetson (1SS7), 14 Daly (N. Y.), 125. *■ State v.. French Opera Ass'n (1902), 107 La. 284; 31 So. 630. TICKET SCALl'ING 381 Undor a ponal statute making it a misdemeanor to permit a child under a specified age to enter a place of amusement unless accompanied by its guardian, a mere ticket taker was held not included within the class of persons embraced by the section.^'' Section 118.— Ticket " Scalping." Under Act of March 18, 1905, of California, known as Penal Code, Sec. 52G, it was declared a misdemeanor to sell or offer to sell any tickets of admission to any theatre or other place of amusement at a price in excess of that charged originally by the management. This statute was declared unconstitutional upon the ground that it prevented the free disposition of i)roporty by the owner thereof, which was guaranteed to him under the state constitution.''^ The owner of a theatre is not liable for a tax iiniKJsed upon the theatre where the proix^rty has been leti-secl to a tliird party and tlie lessee conducts tlie theatre. New Castle v. Geukinger (1908), 37 Pa. Super. Ct. 21. Where the defendant did not exliibit an immoral show, but merely rented his opera house to another, who without his knowledge or consent, gave such jx'rformances, he is not liable, and a judnmont of con- victionagainsthim under Sec.oiie, Act 1 of ordinances of the City of New Castle approved March 22, 1904, will not be upheld. " People ex rd. Jacques v. Sheriff (1907), 122 A. D. (X. Y.) 878; 107 X. Y. Supp. 415; aff'd 191 X. Y. 525; 84 N. E. 1118. Section 290 of the Penal Code of Xew York. On the question whether the license uf the lessees of a theatre covered also the performers see Shclhij V. Emerson (1880), 4 I^ea. (Tenn.) 312. "We think the license includes and protects the employes of the managers, who furnish the entcrtaimnents, and the minstrel tr<)U|M^ is but an I's- sential agency in carr>'ing on the business licensed." **I':x parte Qunrg (190G), 149 Cal. 79; 84 Pac. 7GG. 382 THE LAW OF MOTION PICTURES Illinois enacted a similar statute. This statute as well was declared unconstitutional as an abuse by the state of its police power. The court held: "There is nothing immoral in the sale of theatre tickets, at an advance over the price of the box office. Such sale is not injurious to the public welfare and does not affect the public health, morals, safety, comfort or good order. It does not mjure the buyer or proprietor of the theatre. The buyer pur- chases voluntarily. He is under no compulsion. If the conducting of a theatre is a mere private business, there is no reason why the proprietor may not sell the tickets when and where, at what prices and on what terms he chooses." ^^ In New York the business of a ticket speculator was held to be a lawful occupation.^'' A city ordinance, how- ever, making it a misdemeanor to sell tickets on the streets in front of any licensed theatre or place of amuse- *^ People V. Steele (1907), 231 lie health, safety, morals, coin- Ill. 340; 83 N. E. 236. The state fort or s^iicral welfare of the under its police powers has a right public and such laws would de- to regulate a theatre but only to prive those engaged in such busi- the extent that it may regulate ness of their liberty and property any otlier private business. It witliout due jirocess of hvw. may impose a license fee and pass City of Chicago v. Powers such regulations as will safe- (1907), 231111. 560; 83 N. E. 240. guard the public health, safety, Where the courts of the state morals, comfort and general wel- held a statute forl)i(lding "ticket fare of the pubhc. scalping" to l)e void, the city of But the legislature may not Cliicago could not pass an or- cnact laws to prevent speculation dinance of like effect, in theatre tickets, frequently *<> People v. Marks (1909), 64 called ".scalping" as such legisla- Misc. (N. Y.) 079; 120 N. Y. tion has no reference to the pub- Supp. 1106. censoiish;i» 3H3 iiiciit was Ju'ld constitutional as within the ijolice powers of the niunicipahty." Section 119. — Censorship. We have seen tliat under its poHce power, the different states of the union have enacted laws regulating the erection and operation of buildings wherein motion picture exhibitions are contemplated to be given. ''^ We have also noted that some states have indirectly controlled the exhibition of the motion picture itself by giving to those in whom thoy have vested the regulation of the operation of such buildings, discretionary powers in withholding, granting or revoking the licenses required to operate them.'^ Instances have been also given where the police liave been u])held by the courts when they have sup- pressed films under penal statutes proliibiting the giving of obscene or inimoial exhibitions, or because such ex- hibitions constituted a nuisance.''" Several of the states have gone one step further and have enacted statutes creating boards of censorship, the ai^proval of which must be obtained before the motion I)icture may be exhibited within the state. Such laws "People ex rcl. Laiigc v. Pal-, atir pcrforriKmco aiul sells thorn viilter (1911), 71 Misc. (X. Y.) as and for tlic tickets of the maii- loS; 12S N. Y. Supp. 426; aff'd aneinent when not so in fact is 144 A. D. (X. Y.) 804; 12S X. Y. Ruilt)' of forgery at common Supp. 1140; afT'd 202 N. Y. 60S; law. 1)6 X. E. 1126. Se.-)() I'a. L'-J."); <».") All. sius) (lUlo), 2;iG U. S. •JIT; .{.J 4X1 Sup. Ct. ;i\Y.i. ■-' MiUimI Film v. ('ity of Chi- <•' Bujfato lir. V. Ihritinyir ruj/u (19ir)), 224 Fetl. (C. C. A.) 101. 388 THE LAW OF MOTION PICTURES exhibited. ^^ The statute has not yet come before the courts as to its constitutionahty. Attempts have been made to secure the passage of a bill through Congress establishing a Federal census board, but up to the present writing Congress has not seen fit to legislate upon that subject. Although Congress, under its control of interstate commerce, probably has the con- stitutional right to require all films shipped through the different states, to be submitted to a Federal board of censors, it is doubtful whether it will exercise its rights. It will probably leave the censoring of films to state boards, which can take into consideration the habits, prejudices and modes of thought pecuhar to the state in which they act. Congress has already enacted a law prohibiting the transportation from one state to another or the importa- tion into this country of films representing prize fights and other pugilistic encounters for purposes of public ex- hibition.^^ And that statute has been held to be con- ^5 Acts of Louisiana, 1914, company or otlicr common car- (Special Session of 1913), Act ricr for carriage, or to send or No. ISO, July 9, 1914. carry from one State or Terri- es Act of July 31, 1912, Chapter tory of the United States or the 263, Sections 1 , 2, 3; 37 Stat. 240; District of Columbia to any other (United States Compiled Stat- State or Territory of the United utes of 1910, Sections 10410, Statesor the District of Columbia, 10417, 10418, pp. 12S56, 12857.) or to bring or to cause to be Sec. lO/flO. "It shall be un- brought into the United States lawful for any person to deposit from abroad, any, film or other or cause to bo deposited in the pictorial representation of any United States mails for mailing jjrize light or encounter of pugi- or delivery f)r to deposit or cause lists, under whatever name, which to be deposited with any express is designed to be used or may be CENSORSHIP 389 stitutionnl, undor tho fommorfo rlaii^o of tho rr)nstitu- tioii.'' Congress has also provided in the tariflf act of 1909 for a censorsliip by the Secretary of the Treasury of all films imported into this country. The Secretary of the Treas- ury, however, has not as yet to the knowledge of the writers, attempted to exercise that right. ^^ The Circuit used for purposes of public ex- film were coiiternplatcti to l)e hibition." Sec. 10417. "It shall be uii- luwful for any person to take or receive from the mails or any express company or other com- mon carrier with intent to sell, distribute, circulate or exhibit any matter or thiiip; herein forbidden to l)e deposited for mailing, de- liver>', or carriage in interstate eonmierce." Sec. 1()',1S. "Any jwrson viola- ting any of th(* provisions of this act shall for each offense, upon conviction thereof, be fined not more than one thousand dollars or sentenced to imjirisonment at hard labor for not more than one year, or both, at the discre- tion of the court." Knlistheiiic Exhibition Co. v. Emmon.'< (1<)1.')), 22.") Fed. (D. ('.) 1)02; aff'd 220 Fed. (C. C. A.) 124. The i)laintiff sought to imjiort a negative film of a prize fight exliibition. The court h(>ld that where tlie jxisitive prints ui the exhibited before "clubs, societies, a.s.sociations, athletic clubs, and their guests" and no limitation was placed ujjon tlie numl)er of their guests, such exhil)itions of the film were public and came within the prohibition of the statute. See opinion of the United States Circuit Court of Appeals. " Weber v. Freed (1915), 239 U. S. 32.^); 36 Sup. Ct. 131. See also opinion of lower court in 224 Fed. 355. "Tariff Act of October 3, 1013, Chapter 16, Section 1, Sub- secti(jn 380 3S Stat. 114; (United States Compile Minn. 2:)7: V. Ijfiicli (1U08), 108 X. Y. Supj). 148 X. W. 100; State v. Monis 20!); Keith & Proctor v. Pingham (191«)), 155 Par. (Idaho), 29G; (lUOS), 125 A. 1). (X. Y.) 701; People v. Brown (1!)12), \\M 110 X. Y. Supp. 210; Edwards X. W. (Mich.), .'):r>. V. McClellan (1000), 118 X. Y. '^People v. Finn (HKXS), 57 394 THE LAW OF MOTION PICTURES In 1916, the statute again came before the court for construction. It was held in effect that a motion-picture was one of the "other public sports, exercises or shoivs" and should be prohibited. ^^ The highest court, not having had the question before it as yet, the conflicting decisions have left the law in New York in a very unsettled state."^ In construing Sunday statutes, the courts have taken into consideration the fact whether at the time the act was passed motion pictures had become well known and Misc. (N. Y.) 659; Fox Amme- ment Co. v. McClellan (1909), 62 Misc. (N. Y.) 100; 114 N. Y. Supp. 594; 110 N. Y. Supp. 22; Klinger v. Ryan (1915), 91 Misc. (N. Y.) 71; 153 N. Y. Supp. 71; 153 N. Y. Supp. 937; People ex rel. Klinger v. Rand (1915), 91 Misc. (N. Y.) 276; 154 N. Y. Supp. 293. " People ex rel. Bender v. Joyce (1916), 174 A. D. (x\. Y.) 574; 161 N. Y. Supp. 771. Holds that Sec. 2145 of the Penal Law ap- plies to motion-picture theatres, and relator, convicted of conduct- InR such a theatre on Sunday, was remanded. This decision has aroused con^idorahle (hscus- sion, as it is directly opposed to People V. Hemlcb (190S) , 127 A . 1 ). (N. Y.) 3.56, wherein .JudRC (!ay- nor decided tliat tlic exhibition of motion pictures was nof, a viola- tion of the statute. '^^ At the present writing the Appellate Divisions of the State of New York are diametrically opposed to each other in constru- ing the foregoing section. We even doubt whether a decision of the Court of Appeals would clear the situation, for any section upon which the principle must rest, it must be reineml)ered, was passed before the advent of motion-pictures. Direct and plain legislation on the subject is the real necessity, and tlie reason that there is none is that the people want Sunday motion-pictures and the religious organizations do not want tlicin to have it. It is to be deplored that so inijiortant a feature of the motion-picture business and of the life of the people should be sul),ie<'t to the wliiin and capric-e of individual judges rather tlian to special legis- lative enartnient. S;r\I)\V J'KRFORNfANCE 3o:. for that roason in tlic minds of the logislators ai that time.^' The legislature alone is tlie sole judge of observances or profanities of the Sabbath and a Mayor or other municipal officer unless expressly authorized so to do, lias no inherent authority to regulate the same.'" «• Peoplev. f'lnn (190.S),r)7 Misc. (N. Y.), 659; 110 N. Y. Supp. 22. "This act \va.s framed beforo the idea of moving pictures was ooncpivod by the mind of man and must be interpreted with relation to tlie then intent of the Legislators." /{ra.W.Hull{\9\0), 18 Idaho, 47.'): 110 Pac. 2r,C). Tlie Supreme Court of Idaho speaking of a scenic railway said: "The prohibition of public amusemenfs on Sunday must therefore rest on the theory that it is neces.sary either for the pro- tection of the public morals, the public health, or the public peace and safety. (Citing ca.ses.) This amu.sement is not per se, unlawful or criminal, nor is it inuMora! t»r dangerous or detri- mentid to the public health. It is apparently a wholesome, in- nocent outdoor amusement. In order to prohibit such an amuse- ment we ought to find the prohibition within the .statute, either in posit iv(> terms or by clear implication. No .s?/r/i means vf amiu N. Y. Supp. IS; afT'd 21.') X. Y. r.2(i; 109 X. K. 1088. The legislature alone has power to enforce ordinances by penalties, forfeitures and imprisonment, and unless it htis expressly delegated this |M)wer to a municipality, tlie latter may not enforce a Sunday dosing ordinance as to motion picture houses. 396 THE LAW OF MOTION PICTURES In many of the states exhibitions of motion pictures have been held exempt from the operation of statutexS forbidding the keeping open of a theatre on Sunday,"^ the operation of "other places of amusement" ^- and of "amusements disturbing the peace." "'^ Cily of Neiv York v. Alhambra Theatre (1910), 136 A. D. (N. Y.) 509; 121 N. Y. Supp. 3; aff'd 202 N. Y. 528; 95 N. E. 1125. The municipality had by express enactment (Greater N. Y. Char- ter) been given the power to pass ordinances regulating the oli- servance of Sunday and the de- fendant had been held liable in a penalty for giving a theatrical performance on Sunday. See also: People v. O'Gorman (1908), 124 A. D. (N. Y.) 222; 108 N. Y. Supp. 737; New York v. Williams (1905), 48 Misc. (X. Y.) 77; 90 N. Y. Supp. 237; Matter of New York (1909), 131 A. D. (N. Y.) 7G7; 116 N. Y. Supp. 353; St. Joseph V. Elliott (1891), 47 Mo. A pp. 418; Ex parte Ferguson (1914), 80 Wash. 102; 141 Pac. 322. ^^ Stale V. Penny (1910), 111 Pac. (Mont.) 727. Held that a statute making it a misdemeanor to keep open a theatre on Sun- day was not violated l)y the giving of a motir)n pictun^ exhibi- tion. " City of Clinton v. Wilson (1913), 257 111. 580; 101 N. E. 192. The statute prohibited "any biUiard room, ball or pin alley, baseball grounds or other places of amusement to operate on Sunday. Held that it did not apply to motion picture per- formances. ''^Stevens v. Morenotis (1912), 169 111. App. 282. Under a statute prohibiting amusements disturbing the peace and good order of society it was held that the proprietor of a th6atre could not be restrained from giving Sunday performances when such performances were proper and moral. See also: Eden v. People (1896), 161 111. 296; 43 N. E. 1108; Contra with respect to a motion picture exhibition: United Vamleville Co. v. 7.dlcr (1908), .^)S Misc. (N. Y.) 16; 108 N. Y. Supp. 789; Ilnndin V. Bender (1915), 92 Misc. (N. Y.) 16; 155 N. Y. Supp. 963; Gale V. Bingham (1907), 110 N. Y. Supp. 12. See also: A. II. Woods Prod. Co. SUNDAY PERFORMANCE 307 On the other liaiid, they have been held Uj come u iiliin the i)rovisions of statutes j)rohil;iting "theatrical per- formances"^' and the keeping open of "any j)lace of public amusement." '"' V. Cfiicngu R. li. (1900), 147 III. A pp. oGS. .'V tliciitricjil i)erforni- anco oil Sunday was hold not to violate a statute prohibiting "any noise, rout or amusement on the first day of the week dis- turbing the peace of any private family." ^* Ex parte LingcnfcUcr (1911), 64 Tex. Crim. 30; 142 S. W. 555. "licing of the opinion that a moving picture show of the char- acter and kind presented in this state, comes within the definition of amusements of like character, kind and species as a theatre, and wliile not a tlieatre, yet it is of the same genus, relator is remanded. Our statutes refer to a "horse" and this term has been held to embrace a mare, a mule, a jack, a jenny, as they are all of the same s|x;cies, and many illustrations might be cited as holding that all things of the same genus are embraced, even when not followf.'*! by general words, but we deem it usele.s.s." Ca-ses referred to by the court include: Ez parte lioqitemore (1910), 60 Te.v. Crim. 282; 131 S. W. 1101; Ex parte Mnrkcnfuss (190S), 52 Tex. Crim. 407; 107 S. W. 1131; CVou; V. Stale (1851), 6 Tex. 334; In re Hull (1910), 18 Idaho, 475; 110 Pac. 2."j6; State V. I'ratltcr (1900), 79 Kansas, 513; 100 Pac. 57; Ex Parte Xect (1910), 157 Mo. 527; 57 S. W. 1025. To the same effect: In re Bossner (1010), IS Idaho, 519; 110 Pac. 502. Rosenberg v. Arroivsmith (1914), 89 Atl. (X. J.) 524. The statute in (luestion prohibited "worldly employment or business, inter- ludes and plays, fiddling, or other music for the sake of mer- riment on Sunday." Moving pic- ture exhibitions were held to be includcHl within that statute. See in this connection: Foiiii- ■"' Oliver V. State (1011), 144 S. W. (Tex.) 604. Held that a motion picture exhibition was included under a statute pro- hibiting the keeping ofKjn of "any place of public amuse- ment" on Sunday. Sec also: Ex parte Ziiccaro (1913), 162 S. W. (Tex.) 844. 398 THE LAW OF MOTION PICTURES To manage a theatre on Sunday has been held to be "labor" within Sunday statutes."*^ tain Sq. Theatre v. Eva7is (1896), 4 Ohio Dec. 151; Matter of Ham- merstein (1907), 57 Misc. (N. Y.) 52; 108 N. Y. Supp. 197; People v. Haijm (1860), 20 How. Pr. (N. Y.) 76; State v. Herald (1907), 47 Wash. 538; 92 Pac. 376; In re Donellan (1908), 49 Wash. 460; 95 Pac. 1085; People v. Hammer- stein (1913), 155 A. D. (N. Y.) 204; 139 N. Y. Supp. 1075; Kreider v. State (1912), 103 Ark. 438; 147 S. W. 449; Reg. v. Barms (Can.), 45 U. C. Q. B. 276; N. Y. V. Eden Musee (1886), 102 N. Y. 593; 8 N. E. 40; Stewart v. Thaijer (1897), 168 Mass. 519; 47 N. E. 420. ^« City of Topeka v. Crawford (1908), 78 Kan. 583; 96 Pac. 862. "If to keep open a store and re- ceive and sell wares therein is the common labor of a merchant, it is fair to say that to keep open, manage and suporiiitoiid a theatre and sell tickets tlicrein is tlu; labor of such manager." Held that managing a theatre on Sun- day was labor and was a viola- tion of the statute. Qwirlc!^ V. State (1891), 55 Ark. 10; 17 S. W. 269. To superitit<'nd and manage the giv- ing of a theatrical performance on Sunday, and to sell tickets therefor is "labor" within the meaning of a statute that pro- hibits all labor on Sunday. See also: City of Topeka v. Craivford (1908), 78 Kan. 583; 96 Pac. 862; Wirth v. Calhoun (1902), 64 Nebr. 316; 89 N. W. 785; Comm. v. Alexander (1904), 185 Mass. 551; 70 N. E. 1017; Rex V. Ouimet (Can.) (1908), 14 Can. Cr. Cas. (Quebec) 136; Moore v. Owen (1908), 58 Misc. (N. Y.) 332; 109 N. Y. Supp. 585; Re Bossncr (1910), 18 Idaho, 519; 110 Pac. 502; Ex parte Lingen- felter (1911), 64 Tex. Crim. 30; 142 S. W. 555; Ex parte Zuccaro (1913), 72 Tex. Crim. Rep. 214; 162 S. W. 844; St. Joseph v. Elliott (1891), 47 Mo. App. 418; State V. Ryan (1908), 80 Conn. 582; 69 Atl. 536; Fox v. McClellan (1909), 62 Misc. (N. Y.) 100; 114 N. Y. Supix 594; Terry v. Brighton. Aquarium (I'-ng.) (1875), L. H. 10 (.}. B. 306; City of Clin- ton V. Wilson (1913), 257 111. 580; 101 N. E. 192; McLeod v. State (1915), 180 S. W. (Tex.) 117; Spooncr v. State (1916), 182 S. W. (Tex.) 1121; Gould v. State (1911), 134 S. W. (Tex.) 695; Letnpke v. State (1915), 171 SUNDAY I'ERFOllMANr?: 31)0 A statute wliich jiioliibit.s tlie operation of motion picture theatres on Sunday is constitutional.^ It is in its essence a police regulation "•* and a defendant may he |)rose('uted simultaneously under it for both the civil and .criminal penalties.''' Equity will not restrain a defendant from giving such per- formances, but will relegate thestate toitscriminal remedy.**" S. W. (Tex.) 217; Peui)le v. Dixun (11)15), l.>4 k. W. (Mich.) 1. estate V. Barnes (1911), 22 N. D. 18; 132 X. W. 215. A statute i)rohil)iting the operation of a theatre, show, inoviiip; pic- ture e.\liii)itioii or theatrical per- formance oil Sunckij' was held constitutional. See cjuses cited in opinion of the above ca.se for decisions in the difTercnt states of the union to the same effect. ^^ Majestic Theatre v. Citij of Cedar Rapids (1911), 153 la. 219; 133 X. W. 117. There was in- troduced in the city council for enactment a |)roposcd ordinance prohibiting; theatrical exhibitions on Sunday. IMaintilTs, proprie- tors of a theatre in the city sought to restrain the pas.sage of such ordinance uix)n the ground that its pa.s.sajie and en- forcement woulil be in violation of the constitution of tiie state forbidding discrimination l)e- tween classes of |x;rsons, and further in violation of the four- teenth amendment of the Federal constituti(jn. The demurrer to the bill wius sustaineti upon the ground that the ordinance was in the nature of a i^olice regula- tion, and if void for unrea.sonable- ness or not within the |)ower dele- gated to the city, the courts would not enforce it. "^'(7// (*/ .V. }'. V. Williams (1905), 48 Misc. (X. Y.) 77; 96 X. Y. Supp. 237. ^ Twiggar v. Rosenberg (1916), 98 Mi.sc. (X. Y.) 8G; IG^i X. Y. Supp. 771. The court will not restrain the defendant from con- ducting a motion-picture show on Sunihiy. " It ha.s long been held that courts may not resort to injunc- tion to enforce ti»e criminal law." Lyric Thcalrc v. State (1911), 130 S. W. (.Vrk.) 174. Suit was instituted in the name of the state of Arkansas to enjoin de- fendant from giving public per- 400 THE LAW OF MOTION PICTURES Nor will it restrain the police officials from carrying out the provisions of the statute.^ ^ To sustain a conviction under the statute the defendant must be in some way responsible for the performance. If as proprietor, it must have been given with his knowledge and consent,^^ and a manager is also responsible.^^ 125 A. D. (N. Y.) 792; HON. Y. Supp. 219; Olympic A. C. v. Bing- ham (1908), 125 A. D. (N.Y.) 793; 110 N. Y. Supp. 216. 82 See People v. Kingston (1912), 139 N. Y. Supp. 649, for a very able discussion of Sunday per- formances of motion pictures and as to the sufficiency of the evidence to hold the defendant liable. Reid V. Wilson (Kufi.), 1 Q. B. D. 315. An attempt was made to convict the persons re- sponsible for a series of educa- tional lectures given on Sunday evenings, under the provisions of 21 Geo. Ill, ch. 49, but it was unsuccessful. »^ Gould V. State (1912), 146 S. W. (Tex.) 172. While, in a criminal prosecution for keeping open a theatre on Sunday, the defendant showed that he was not the ])roprietor, he was held nevertheless liable as it wjis shown that lir IkhI been licid out as the maiiiigcr. formances of vaudeville and mo- tion pictures in its theatre. These performances were given gratis, and were wholly proper and moral. Held that chancery would not enjoin the doing of an act which was purely criminal. Held further that a theatre was not per se a nuisance, al- though it might attract the law- less and the noisy so as to be- come a public nuisance. See also: Eden Micsee v. Bing- fmm (1908), 125 A. D. (N. Y.) 780; 110 N. Y. Supp. 210; Shep- herd V. Bingham (1908), 125 A. D. (N. Y.) 784; 110 N. Y. Supp. 217. «' Eden Musce v. Bingham (1908), 125 A. D. (X. Y.) 780; 110 N. Y. Supp. 210; Shepherd v. Bingham (1908), 125 A. D. (N. Y.) 784; 110 N. Y. Supp. 217; SncHskind v. Bingham (1908), 125 A. D. (N. Y.) 787; 110 N. Y. Supp. 213; Keith (fe Proctor v. Bingham (1908), 125 A. D. (N. Y.) 791; 110 N. Y. Supp. 219; Schimkcvilz v. Bingham (1908), SUNDAY I'KUFOHMANCE 401 \\liilc tlie fuel that tlie proceeds of the ])erf(jniianc(' arc devoted to .some worthy charitaljle eiiterpri.se is in general no defense "' it would amount to a defense in such states wliich except "works of charity or necessity." ** »< Koclhlc V. \V(jo(h, 159 N. Y. charity did not take it (nit of the Supp. 704. Held that the fact operation of the .statute. that the proceeds of the perf(jrni- »' For detailed discussion see ance were given to a worthy Section 82. CHAPTER X UNFAIR COMPETITION Titles — Marks and Devices Sec. 121. Using same or similar titles. 122. Use of title after copyright in work expires. 123. Infringement of titles — Titles held to infringe. 124. Infringement of titles — Titles held not to infringe. 125. Acquiescence and abandonment. 126. Relief. 127. Marks and devices. 128. Transferability. 129. Parties. 130. Actions at law. 131. Trade-mark in title of cartoon. Section 121. — Using same or similar titles. In dealing with the title of a work, we shall disregard entirely the body of it. We shall assume that in all cases where the question of title arises, there is no resemblance in the body of the work as between the two plays or mo- tion pictures. The remedy in all cases arising out of infringement of the text, plot, situation or characteriza- tion of the work is under the Copyright Act, or under the common law in the case of an uncopyrighted and unimbhshed work. The title of a play or motion picture is the most valuable part of this species of literary property. It is the medium 402 LSINCJ .SA.ML Uli .SIMILAR TITLES 403 througli wliich the production bc'C(Jines ideiitiliud with the i)ul)hc, and hy wliicii it i.s advertised, lauded and made valuable to the owner. It is also a nnost prolific source of infringement, and withal the least protected part of the work. Copyright does not extend to the title. An author or dramatist ac(iuires the benefit of the copyright law in every jiart of his work, except where he most needs it — in the title itself. To that, copjTight will not extend, no matter how original or admirable the author's conception.' ' Glaaer v. St. Elmo (1909), 175 Fed. (C. C.) 276. "The com- plniniints cliiiin, liowcver, that, a.s they have a legal copj-riglit of a j)lay named 'St. Ehno,' the defeiidaiits have no right to apply t!i(! name 'St. Elmo' to the play prodiuod b}' them. There is some d(juht, under tlie authorities, whetlier a peivon who has a vahd eopyright in a honk or j)lay lias an e.xclusive right to tlie title. Some ca-se.s hold tliat the title of a book or l)lay is a part of tiie thing copy- righted and that no other person can adopt such title. Wcldon v. Dicks (Eng.) (187S), E. R. 10 Ch. Div. 247; Estcs v. William.-^ (1884), 21 Fed. (('. V.) 1S9. Other authorities hold tliat a copyright only extends to a lit- eniry production and that a mere title of a book is not a sub- ject of copyright. Harper v. limwm (189.3), 67 Fed. (C. C.) 904; Corhdl v. Purdy (1897), 80 Fed. (C. C.) 901; Black v. Ehrich (1S91), 44 Fed. (C. C.) 793; Dicky. Yaks (Eng.) (1.S81), L. R. 18 Ch. Div. 76; Osgood v. Allen (1S72), (('. C.) Fed. Cas. No. 10003; C'opinger's Liuv of Copj'- riglit (4th Ed.), p. 6-1; 9 Cyc. p. 92S and ca.ses cited, and see Jollic v. Jnques (1850), (C, C.) Fed. Cas. No. 7,437." "I think that the authorities, particularly the American ca-ses, preponderate that the copjTight of a lx)ok docs not prevent other l)ersons from taking the same title for another work, even in tiie ca.sc of an entirely unexpireil copyright." Corbdt V. Purdij (1897), 80 Fed. (C. C.) 901. Lacombe, C. J. : "The right secured by the copy- 404 THE LAW OF MOTION PICTURES But the title may be protected by a court of equity under the general equity powers oi the court, on the theory of unfair competition.- It can only be protected, however, right act is the property in the literary composition and not in the name or title given to it. In no case, so far as this court is advised has protection been af- forded by injunction under the copyright laws to the title alone, separate from the book or dra- matic composition which it is used to designate." Harper v. Ranoiis (1895), 67 Fed. (C. C.) 904. "The applica- tion, however, for an injunction against the mere use of the name 'Trilby' as the title of any dramatic composition which does not present such scenes, incidents, plot, or dialogue, or simulated or colorable imitation or adapta- tion thereof, is denied. It is the name in connection with the novel, not the name alone, which the copyright law protects." Dick v. Yates (ICng.) (ISSl), 18 Ch. D. 76; 50 L. J. Ch. 809; 44 L. T. 660; Waller v. Emnioll (Kng.) (1885), 54 L. J. Ch. 1059; liorthwick v. Evening Post (Kng.) (1888), 37 (\ D. 160; Crotch v. Arnold (Eng.) (1909), 54 S. J. 49. Sec al.so: Atlas MJy. Co. v. Street & Smith (1913), 204 Fed. (C. C. A.) 398 at p. 403, which contains an exhaustive summary of the authorities on this point. ^Robertson v. Berry (1878\ 50 Md. 591. "A pvhlisher or author has either in the title of his work or in the application of his name to the work or in the particular marks which desig- nate it, a species of property similar to that which a trader has in his trade-mark, and may like a trader claim the protec- tion of a Court of Equity against such a use or imitation of the name, marks or designations, as is likely in the opinion of the Court to be a cause of damage to him in respect of that prop- erty." Frohman v. Miller (1894), 8 Misc. (N. Y.) 379; 29 N. Y. Supp. 1109. "While there is no doubt as to the power of the court to enjoin tlie use of a title calculated to deceive the public into the belief that the defendants were performing tli(> iilnintilT's ])lay etc. etc." "... Tii(M"('f()re, whether copy- righted or not, the author's ITRINO SAMK OU SIMILAR TITLES 40.1 in oonjiinctif)!! with tho work witli wliicli it has hocome associated. The case of Munro v. Touseij,^ has strongly emphasized the i)roposition tliat "a pubUcation is the su))jcct of prop- erty and there is no reason why, Hke every other kind of property, it should not be the subject of the law's protec- tion. To put out a colorable imitation of it, by which the public may be easily misled into supposing that it iii the literary article they had in mind to obtain and read, is an act of deception, which injures the publisher." In 1900, the Appellate Division of New York in Out- cault V. Lamar,* held that the plaintiff, who had invented rif^lit to the title of his attraction is to be protected from unlawful invasion." See also: liroadliurd v. Nichol (Australian) (1003), X. S. W. .3 S. 1^ 117; McLean v. Fleming (1S77), !)G U. S. 245. See in this connection lilnck v. Ehrich (1891), 44 Fed. (C. C.) 793. ^Miinro V. Tomey (1891), 120 N. Y. 3S; 20 X. E. 0. "That tlie plaintiff would 1)C entitled to the protection of the law acainst the use by others of the words 'Old Sleuth Library' as used to describe a scries of publications, or against the use of the name 'Old Sleuth the Detective' for a wfirk of fiction, may l)e conceded. That is plainly ri,i!;ht, and in order to alTord a protection more adequate than would be afforded by an action at law, the equity power of the courts might be successfully in- voked to restrain a similar use by others of such names and to I)revent a species of literary piracy. This power is exerted upon the same principle uj^on which the court acts in trade- mark cases, in restraining the unauthorized use of the label, or sign, constituting the trade- mark." *Outcaull V. Lamar (1909), 13.-) A. D. (X. Y.) 110; 119 X. Y. Supp. 9.30. "The theory of the complaint is that the cartoonist invented this title and the.sc names, and that he and his a.s.sociates were the first to use them in connection with a public play, and that a court of equity 406 THE LAW OF MOTION PICTURES a series of cartoons called "Buster Brown" and around which he had written a play of that name, could restrain the defendant from producing a play under a similar title, under the general equity powers of the court. Earlier cases had paved the way for tliis decision by defining with precision the rights acquired in the sub- stance or body of the work, and the rights acquired in the title. Potkr V. McPherson ^ clearly separates these two rights. should protect them in that use upon the principles upon which trade names and trade marks are protected by the courts, notwithstanding the fact that they are used in connec- tion with a copyright or a pat- ent, Munro v. Tovsey, 129 N. Y. .38; 29 N. E. 9; Waterman v. Shipman, 130 id. 301; 29 N. E. Ill; Potter v. McPherson, 21 Hun, 559." The court then held that the lower court erred in dismissing the complaint and directed a new trial. See also: Aronson v. Flecken- stein (1886), 28 Fed. (C. C.) 75. "... The name given the com- pf)sition by its author and under which it has become known to tlu; public, became, as it seems to mo, a property right, — not strictly on the j)rincipl(' of a trade mark hccHMse the narno iind hterary com[) injunc- tion therefore, concerning which it can l>e claimed on the part oi USING SAME OH SIMILAR TITLKS 407 Thoro tho work itself luid been dcdicuted ))y its publica- tion witliout securing copyright. Tlie defendant I)u1j- lishod a similar work under a similar title. It was held that while the plaintiffs could not restrain defendants from making use of the substance of their work, they nevertheless could enjoin the defendants from ap- propriating their title; and that, to accomplish this, they could invoke the general equity powers of the court. To be susceptible of exclusive appropriation by the owner, the title of a play or motion picture must not be descriptive. ]\Iuch has been said on what constitutes descriptivcness— "words or names which simply indicate the quality or character of the goods to which they refer are as a rule words which others may employ for the same purpose with equal truth, and hence cannot be exclusively appropriated by any one as a trade-mark." '"' tlie plaintiffs that it should be being appropriated to the busi- continued, is that relating to tlie ness of otlier jxirsons." title under wliich the plaintiff's ^ Frohman v. Morris (1910), book lias l)e(Mi i)ubhshed, for as 68 Misc. (N. Y.) 461; 123 N. Y. to that, the law does not deprive Supp. 1000. "Words or marks them of their riglits of property merely indieating superior ex- by the mere publication and sale ccUencc, popularity or universal- of the book itself. That is the ity in use, such as 'best,' 'favor- distinguishing mark by which ite', etc., cannot be exclusively their publication becomes known appropriated ivs a trade-mark, in the market and as to that .... The name of a drama or they have a right to maintain other theatrical i)roduction not the exclusive use where it has published as a book cannot, of been proix-rly deviseil for tlu^ course, constitute a trade-mark, purpose of maintjiining their but i7 U a trade-name, and will trade, and pr«!veiitiiig it from be protected against unauthor- 408 THE LAW OF MOTION PICTURES It is extremely rare that the title of a play is descriptive, for the reason that this form of literary creation does not lend itself to description in the sense that commodities in trade do. The theory of descriptiveness, as it has been developed in the law of unfair competition, is that no one will be permitted to appropriate to his own exclusive use a word or words which describe the physical properties of the ized use or imitation amounting to unfair competition. In the light of these principles it is evi- dent that no one can appropriate a trade-mark or title which de- scribes the thing to which it is affixed. Thus, no one could ap- propriate the word 'play,' or 'dramatic composition," 'comedy,' 'farce,' 'tragedy' or any similar word in connection with a stage- production, because it describes the thing itself." Social Register Ass^n v. Hoio- ard (1804), 60 Fed. (C. C.) 270. "These words 'Social Register,' are clearly selected arbitrarily to designate the pul)lication of the complainant, and cannot be projv erly called descriptive, in any sen.se. Hence, the words, when chosen, a.ssociated together, and applied to a list of p<>rsons se- lected at will by the compiler, as in the ca.se at bar, become a trade-mark, and are entitled to protection as such. It is not necessary to cite authorities to sustain this statement." But see: Isaacs v. Daly (1874), 7 Jones & Spencer (N. Y.) 511. Plaintiff copyrighted a play called "Charity." Shortly thereafter defendant became the owner of a play under the same title. The court denied injunction on the ground that the word "charity" is "a virtue that has been sym- bolised and portrayed in every stage and department of art for all ages." The defendant had acted in good faith, and the court denied injunction. We tliink that this decision is unsound, and is not expressive of the law a.s it exists to-day. No matter what the title is, or what it symbolizes or embodies, once it is attached to a play or motion picture and becomes known to the pui)lic, it accjuires USING SAME OK SIMILAK TITLES 400 articlo;^ for if that woro done, others seUing the same romniodity might be hindered from uecurately deserih- ing their own property.'* Thus, every man may offer for sale "tan shoes" or "black shoes" or "women's shoes," but when one calls his shoes "The American Girl" he chooses an altogether arbitrary title which does not describe any physical prop- erty in the article and he may prevent others from using the same title.^ a secondary meaning in conjunc- tion with such work, and is from that time on entitled to the protection of the courts. ^ Welcome v. Thompson (Eng.) (1904), 1 ("h. 7;i6. "Wlien one is deuhng with tiiis question of whether a word is descriptive, I think one must always bear in mind that for a word really to be descriptive it must describe some- thing which is material to the composition, i. e., the cjuality, form or purpose of the article to which the trade-mark is intended to a|)ply." "Sctcliuw V. Baker (188,3), 93 N. Y. 59. "The reason for not permitting names, descriptions of the article or its component jjarts, to b(> a|)pro|)riated a.s trade- marks is that inasmuch as all persons have an etiual rimht to jjroduce and vend similar ar- ticles, they also have the right to properly describe them and to use any appropriate language in words for that purpose, and no i^erson can appropriate to himself exclusively any word or exi)ression, properly descrip- tive of the article, its qualities, ingredients or characteristics." '^ Ridgiray Co. v. Amalgamated Press (Kng.) (1911), 28 T. L. R. 149. PlaintifTs, American pul> lishers of "Everybody's Maga- zine," issued monthly and sold at a shilling, brought action to restrain defetulants from selling a |)eriodical called "Everybody's Weekly" issucxl weekly and .sold for a penny. Held that these publications were not likely to comjx?te with each other. Also that the court could not restrain the use of a coimnon and popular expression like " I'lverybody's." Ilamillon Shoe Co. v. WolJ 410 THE LAW OF MOTION PICTURES Thus, any producer may apply the terms ''play," ''sketch," "drama," "act" to his film without fear of restraint by another who has used that same word as the title of his motion picture; but if he adopts a word such as "The Rosary" or "Life" or phrases such as "Home Comfort" or "A Fool There Was" and his Uterary work becomes known to the pubhc under such title, equity will protect him in his exclusive use of such word or expression. But in order to receive this protection, there must be such use of the title that it will have acquired a secondary meaning, and the pubhc will have identified it with the particular play or motion picture. The first one to make use of the title is entitled to it as against all subsequent persons.^" Priority of actual use in point of time is the test. "Priority of use rather than priority of invention confers the right." ^^ (1916),240U. S. 251;36Sup. Ct. that plaintiff was entitled to 409. maintain his action for injunc- ^^ Broadliurst v. Nichols (Aus- tion.upon the ground that the traha) (1903), N. S. W. 3; S. R. reputation acquired by the play 147. Plaintiff's play "The Wrong elsewhere gave rise to plaintiff's Mr. Wright" had been produced cause of action, in England, America and in See also: Columbia Mill Co. v. parts of Australia. Defendants Alcorn (1893), ir)0 U. S. 460; threatened to produce an entirely 14 Sup. Ct. UA ; Caswell v. Hazard dissimiliar play under the title (1S90), 121 N. Y. 4S4; 24 N. E. "The Wrong Mrs. Wright" in a 707. placein Australia where the plain- ^^ George v. Smith (1892), 52 tilT's play had not yet been per- Fed. (C. C.) S^iO. " It is the party formed and as defendants who uses it first as a brand for claimed, where jjlaintifT's play his goods, and l)uilds up a l)usi- was entirely unknown. Held ness under it, who is entitled to IISINCi SAMK Olt SIMlLAlt 'J'lTLKS 111 Tho monopoly of the title is arquirod by him who lirst appr(»|)riat('s and not by tho man who was the first to suggest, design, invent or conceive the title: So that a mere deposit of the work and title in the office of the Register of Copyrights is not actual user.'- And if one releases a motion j)icture jirior to another motion picture having the same title, which has been previously copy- riglited, ))ut not released, e(iuity will protect tho former, for that one is entitled to the benefits accruing from prior user. The l)urden, however, is upon the plaintiff to show that he was the first to use the title.''' But it is interesting to note that the cases are not very clear as to what constitutes prior user. A situation may arise where two motion pictures are being made simultaneously, and in good faith the same protection, and not the one who others wlio have applied such first thouglit of using it on simi- title to a dramatic composition lar goods, but did not use it. f(>uiid(Hi on the same story, before The hue ilcaU with ads, rwt in- the date of such deposit. tentions." (p. 832). ^^ Spiegel v. Zuckcrman (1910), See also: Walter Baker Co. v. 175 Fed. (C. C.) 978. Delapcnha (190S), 100 Fed. (C. See also: //i7.son v. Fos/er (1897), C.) 740. SO Fed. (C. C\) 890. Not only ^* Dickey \'. Mutual Film (\[)Kt), the intrinsic merit of a work, 160 N. Y. Supp. ()09. but the amount of publicity and See in this connection: lienn v. advertising given thereto and the Le Clerq (lS7;i), 3 Fed. ('as. 130S. popularity derived therefrom will Held that a person who deiK)site(l be considered by the court on in the copyright ollice the title the question of unfaircom|x'tition. of a drama, not original with See also: Selig Polyscope v. himself, did not secure to himself I'tiicorn (1917), 10.'? X. Y. Supp. such title to the exclusion of 62. 412 THE LAW OF MOTION PICTURES title is applied to each. The period intervening between the release of the two films may be very short. It is doubtful whether the courts will enjoin the one released subsequent in point of time. The court will probably direct that each producer affix to the title some name or phrase which will enable the pubfic to distinguish between the two, and thus avoid confusion or deception. In a late Canadian case,^^ a closely analogous situation was presented to the court in the case of two books. One book was entitled The New Canadian Bird Book and the other The Canadian Bird Book. A period of about three months intervened between the publication of the books. The court held that the publication of the first book The New Canadian Bird Book was not such a prior user of the title as to entitle the plaintiff to an injunction. But where the defendant has had knowledge of the plaintiff's title and then has applied the same to his own motion picture, it matters not that the priority of the ^^Mclndoo V. Musson Book Co. subject of copyright; second that (Can.) (1915), 35 O. L. R. 42. in order to succeed plaintiff was Plaintiff published a book entitled required to show that his book "The New Canadian Bird Book" had become known to the public wliif^h he copyriglitcd. Defendant and sought for under the title published a book entitled "The adopted by him, and furthermore Canadian Bird Book." There was the fact that plaintiff published no claim that defendant used his work three or four months any of plaintiff's material. Action before defendant published his was brought fird on copyright, work did not establish such second on theory of trade name, prior user as to entitle plaintiff Ilelfl: first that unless the "title to an injunction. its(!lf amounted to a literary, Rose v. McLean Publishing scientific or artistic work or com- Co. (Can.) (ISOO-T), 27 O. U. .'V25; jKJsition" it could not be the 24 A. R. 240 distinguished. USING SAME OH SIMILAR TITLES llii I)luiiililT's use was for u short tiiiiL'. An iiiturvul of a day, in that case, would be sufficient prior user to entitle the plaintiff to an injunction. And even where the plaintiff has stopped the i)roduc- tion of his work for a short time, another may not step in with a work under a similar title. ^^ We have thus far discussed the elements nece^^sarj- to maintain an action to enjoin the use of the same or similar title, assuming that the title in each instance was applied to a motion picture. As between a play and a motion picture it has been settled by the decisions of Harper v. Kakm and Frohman V. Fitch, that both are dramatic works, and that one may be in competition with the other. ^"^ Several cases have arisen in this country' wherein the proprietor of a dramatic composition has attempted to enjoin the production of a motion picture under the same title under which his play was performed before the public. The first case in which this question arose was that of the Miracle Co. v. Damiger.^'' In that case the i)laintiff "Janricy v. ran-Coast Vcn- '•For full discussion of these tilator Mfg. Co. (1904), 12S Fed. two eases see Section 1. (C. C.) 121. Held tlmt the fact " Miracle Co. v. Danzigcr that plaintiff was not nianu- (1913), N. Y. Law Journal, March facturinp; the patented article S. " The plaintiff.s Ma.x Rciii- and iilaciiiR the same uix)n the hardt and Karl Volhnoeller are market under its trade name at the owners and producers of a the time of the commencement pantomime play, known as 'The of the suit was no defense to Miracle.' This play was pro- an action for unfair use of plain- duced with preat success in Ix)n- tiff's trade name. dou. The plaintiff, the Miracle 414 THE LAW OF MOTION PICTURES which was the owner of the production rights of Maeter- Unck's play called "The Miracle," sought to enjoin the the defendant's play is similar to the plaintiff's play except Co. Inc., acquired the exclusive cinematograph rights in this play or spectacle for the United States and Canada in April, 1912. The play has been reproduced on films for moving pictures and these films were produced at the Park Theatre in the City of New York on February 17th, 1913. It appears that prior to the time when the Miracle Co. acquired the exclusive rights to this play the defendants arranged with a German corporation for the pro- duction of a moving picture play under the same name of 'The Miracle.' Since May, 1912 they have been advertising this film for rental under the name of 'Tlie Miracle' and actuall}'- produced tlie film before the l)laintiffs. The Miracle Co. pro- duced its play hero, but after it had notice of plaintiff's claim to the exclusive right to produce such play. TIk^ plaj^ owned by the plaintiff and the play owned by the defendant arc both founded upon an old legend of :i miracle of St. lieatrice. The legend iu;- came famous when dramatized by Maeterlinck under the title of Sister Hoatriee. It is not claimed on this ujjplication that that they are both founded on the same legend, nor is it claimed that the plaintiffs have any copyright on that legend. The claim is simply that the defendants are engaged in an unfair competition in that by using the name of ' The Miracle ' they are inten- tionally deceiving or tending to deceive the public into the belief that their play is the play pro- duced in London under the same title and to which the plaintiffs have the exclusive rights. I have no doubt that the defend- ants in using the name 'The Miracle' for their play are trying to obtain the benefit of the repu- tation of the London production. While the title is not wholly fanciful and bears a direct rela- tion to the sul).iect matter of the plaj'^ and is to some extent de- scriptive of that subject matter, yet the legend of the miracle of St. Beatrice is not so well known that it has even been known or even could be appropriately called 'The Miracle.' It seems to me that it is absolutely improbable that any person attempting to dramatize this legend would call USING SAMK OU SIMILAR TITLKS 415 exhibition of ;i motion i)i('tiin' of the same title. A t'em- porary injunction was granted. remains that when the defendant first used the name it wa.s coupled with an oix'n intent to deceive the it 'The Miracle' except with intent to ohtain the benefit of the reputation of the earli(!r play ('alle(l by this name. Kvvn though the plaintiffs may not have an exclusive right to the name, they have to the enjoining? of others from usins that name in such manner a-s would intention- ally deceive the public. In this case too, the intent to deceive the public into the belief that the defendant's play is really a re- production of the play owned by the plaintiff rests not alone on the improbability of the same name havinp been dioscn without any intent to appropriate the benefit of the reputation of the plaintiff's play, but as a fair inference from the undisputed facts. The defendants originally adverti.sed their film as 'The Miracle — the one million dollar spectacular production played at the Olympia, bontlon, for more than a year.' It is true that they discontinued all reference to the London production when plain- tiffs notified them that they would restrain any attempt on their part to use the name 'The Mir- acle' as the title of any hlms of moving pictures, but the fact public. Moreover, it is shown that even thereafter and on July 9 one of these defendants wrote to a motion picture exhibitor a letter describing the film which contained the significant words, 'We are being advised now by our attorney that may give us rights to use the music that was written for the original play.' These words can onlj' refer U) the Ilumperdinck nmsic written for the original play in Europe, and shows to my mind clearly an attempt to appropriate the reputation of that play. We have therefore the following points clearly shown: First, that plaintiffs are the owners and assignees of the play which ha.s achieved a great reputation in Euroixj under the name 'The Miracle;' Second, the defendants are offering a film of another play under the .same title, founded on the same sul> ject; Third, the defendant se- lected his title with knowledge that it had clearly l)een appro- priated by the owners of the first play; Fourth, the title is not so descriptive of the subject 416 THE LAW OF MOTION PICTURES Then came the case of Marc Klaw v. The General Film Co.,^^ where the plaintiffs, the producers of a play entitled matter of the play that it would of theatres, the equipment of naturally be used, except for a desire to obtain the benefit of the reputation of the original play; Fifth, this desire is clearly shown by the defendant's acts in offering their films to the public. Sixth, the natural result of the defendant's acts is to deceive the pubUc. Under the circumstances it seems to me that the plaintiffs are clearly entitled to the in- junctive relief demanded. Mo- tion granted." ^^ Klaw V. General Film Co., New York Law Journal, March 4, 1915; 154 N. Y. Supp. 988; affd 171 A. D. (X. Y.) 945; 156 N. Y. Supp. 1128. Platzek, J: " Some five years ago Robert Hilliard, one of the plaintiffs, a popular and gifted actor, first produced an elaborate dramatic production entitled "A Fool There Was," at the Lil)crty Theatre, in the City of New York. From that time the play has been presented and is now being produced throughout the United States and Canada with .success, both from an artistic and financial standpoint. Large sums of money iiave boon exponflod by the plain- tiffs for actors, actresses, hiring the play and in extensive ad- vertising for more than four years. After the dramatic representa- tion "A Fool There Was" ac- quired a reputation, and its title became well known, the defend- ant appropriated the title "A Fool There Was" and produced it in connection with one of its photo dramas, with knowledge that the plaintiffs had been and were producing a dramatic rep- resentation under such title. It appears that the title "A Fool There Was" is an original title in connection with a play, and that no other play under such title was presented prior to the production of the drama by Rob- ert Hilliard. The circumstance that defendant's play is dissimiliar to plaintiff's play or that it was produced as a photo play does not militate against their right to enjoin the appropriation of and use by the defendant of the title. "The question, 'What's in a name?' has been answered by the courts in many well considered cases, wliere the exclusive rigiit to a name possessed or owned by a successful business enterprise lias been niaintaincd against imita- USING SAME OR SIMILAR TITLES 417 "A Fool There Was" secured an injunction against the defendant which had produced a motion picture under the same title. is a new and original dramatic arrangement. It is a fraud upon the public, as iccU as upon the com- plain-ant, to attempt to do so." In Ball V. Broada-ay Bazaar, 104 X. Y. 435, Werner, J., writing for the court, says: "Although we agree with the learned AppeUate I)ivi. Dickey v. Mutual Film Corp. (1916), 160 N. Y. Supp. 609. Clark, J: "This is an action for an injunction and an accounting. Plaintiff is a dramatic writer. Defendant is a moving picture USING SAME OIL SIMILAR TITLES •il'J of a onp-act play entitled " enjoin the defendant from producer. Plaintiff wrote a one- uct play called "The Come- Back" which was produced on the stage fii>>t in March, 1911. It lias hocii jjroduced a.s recently as March, l'.)L"). Defendant has since at lea.st June, 1915, pro- duced upon the screens a photo- play called "The Come-back." It is not claiinod tliat the story of the i)lay and the photoplay are similar; indeed, the sole similarity is in the title. I shall hold that although not now actu- ally being produced, plaint iff'.s play is sullicicntly of value to be the subject of loss from competi- tion, and that the name "The Come-Back" is not descriptive but fanciful and therefore sub- ject in a proper case to the pro- tection of an equity court. In the first place I do not think tluit the prior copyright of two dra- matic compositions under a sim- ilar name affects plaintiff's rights. The title not being sul)ject to copyright, its use is protectee! uruler the e(juitable rule appli- cable to trade marks; that is, priority of actual use gives prior- ity of right to use and to pro- tection. Colunihid Mill Co. v. Atcurn, loO U. S. 400, 463. De- The C(jme-Back," bought to exhiljiting a film under the fendant's chief defense is that the case is merely one of ctjinci- dence, and that not every case of coincidence is unfair competi- tion, at Iciist in the ab.sence of fraudulent intent. I do ntjt think that fraudulent intent is involved in this ca.se. It is true that coin- cidence in title is not per se un- fair competition, as witness nu- merous ca.ses cited by defendant, beginning with the Apthorp case, Astor V. Wed 62 nd St. Really Co., 107 App. Div. 27."i. The.se cases, as I read them, are decided on the ground that no competition exists. For instance, the Ap- thorp case held that there was no coiniHjtition between a hotel and an apartment house. In the case of Atlwi v. Street & Smith, 204 Fed. 388, it was held that there was no comiK'tition between nov- els and moving pictures of the .same titles. It is clear that com- petition may exist between a play and a photoplay, and that an injunction may arise from the mere u.se of a similar title I think is held by the case of Frohman v. Morris, 68 Misc. 46, Khuc ct Krlanger v. General Film Co., I'A N. Y. Supp. 9S,S and Frohman v. Paytoti, 34 Misc. 420 THE LAW OF MOTION PICTURES same title. Here again, an injunction was granted. In another action the same plaintiff enjoined another motion 275. An injunction must there- fore be granted in the present case. On the question of an ac- counting it appears that plain- tiff had submitted his play in three-act form to various the- atrical managers and moving picture producers subsequent to defendant's production and that it had been rejected. This is sufficient evidence of damages and loss of profits to allow an accounting. Defendant contends that where no fraud is found there can be no accounting or damages. The rule, as I read the cases, is rather that in case of innocent competition courts arc reluctant to decree an accounting and damages. While not spe- cifically finding fraud or inten- tional unfair competition here, I nevertheless feel that on the facts the case is one for an ac- counting and damages to be determined by a referee to be appointed for tli(^ purpose." See also: Thonids v. Abraham- sun (1916), N. Y. Law Journal, August :n. " Motion for injuiic- ti(jn pendente lite restraining the use by tlie dcfciKl.'iiit of tlic titl(> 'Her Husband's Wife' is granted. Klaw v. General Film Co., 154 N. Y. Supp. 988; Dickeij v. Mutual Film Corp'n, N. Y. Law Journal, August 11, 1916." See also: Henry W. Savage, hic, V. Kerker (1914), N. Y. Law Journal, April 25th. "The fact that the title of 'Magda, the Modern Madame X,' which was assumed by the defendant for his films, is being used to deceive the public, is clearly shown by the method adopted in some of his advertisuig, where the words 'Madame X' are made unduly prominent, being printed in much larger type than any other words and separated from the descrip- tive a(lj(H'tivc and given an entire line in hca\-y block type; nor is this avoided by the note in small type on one of defendant's ad- vertisements that 'this produc- tion is not taken from a play with a title somewhat similar,' for other advertisements issued by those to whom defendant has sold the lihns refer to tliom as 'The original and only production of this wonderful play, Madame X.' For the protection of the jjiibUc from deception ;ui(l to prevent unfair competition the USINO SAME OR SIMILAR TITLES 421 pioturo distributor from oxhihitinp; a film produced under the siiiiie naiiie. " plaintiff is entitled to have the injunetioii coiitimied during the pendency of the action." *" Dickey v. Metro Pictures Cor])oralion (1917), N. Y. Law Journal, April 28. Platzek, .1: "There can \>r no doulit that plaintiff i.s entitled to the injunc- tion j)rayed for, Klnw v. General Film Co., \'y\ X. \. Supp. 988; aff'd 171 Apj). Div. !»!."); but I think the further relief demande<:l must be largely curtailed. The ca.se rests on the theory of unfair competition. It can, there- fore, on'v be sustained by show- ing that the defendant knew of plaintifi's prior use of the title in question while itself making u.se of the same title. This is shown as to defendant's use of the title, which is admitted by the answer, at times sul)s(Hiuent to the date when notice of i)laintiff's claim was jiroved to have been given, lis use prior to that time appears to have been only a coin- cidence. It was innocent and accidental. Plaintiff did not undertake to show when the letter written by his attorney on Saturday, .\pril '11, 1910, was received by the de- fendant. The testinionv of the defendant's witne.ss on the pcjint Ls not as clear as it might be but in one place he testifies that it was not received until Monday, the 24th, the day when, in the ordinary cf)urse of business, the defendant released its films throughout the country. In the absence of any evidence on the point on the part of the plaintiff I shall find that it was received on April 24th, and the account- ing which may include damages and profits, {Sharpless v. Laio- rencc, 213 Fed. Kep. 420; ;i8 Cyc. 908, 913), must be limited to damages sustained and profits derived from .sales, leases or other dis]X)sitions of the films made after that date. Sdslcfmer v. Sicgd-Cooper Co., 179 U. S. 42; N. K. Fairbank Co. v. Wind.wr, 124 Fed. Rep. 200; Clinton Me- tallic Paint Co. v. A'. Y. Me- tallic Paint Co., 23 Misc. GO, 73; Wulf Bros. Co. V. Hamilton Shoe Co., 240 U.S.2o I. In so far as the title was in- nocently used without knowledge of plaintiff's right the case differs from Selig v. Unicorn Film Corpn., 1(>3 X. Y. Supp. 02. There the ap])ropriation was knowingly and (leliluMatelv made. The citse 422 THE LAW OF MOTION PICTURES In the case of Selig Polyscope et al. v. Unicom Film Service Corporation the plaintiffs were the owners of a dramatic composition as well as a motion picture re- production thereof entitled "The Rosary." Plaintiffs, Rowland and Clifford, were originally the owners of all rights in and to the play. The Sehg Polyscope Co. was the assignee of the motion picture rights therein, and it produced a motion picture of the play, using the same title to identify its motion picture. The defendant put out upon the market a motion picture under the same title. Here, as well, the court, after a trial upon the merits, granted inj unction, ^^ although a temporary in- junction had been refused.-- is also said by counsel to differ from Dickey v. Mutual Film Corpyi., 160 N. Y. Supp. 609, in the fact that the advertisements in tliat case were expressly found to convey the impression that the defendant's picture was a reproduction of plaintiff's play. The findings I have made, re- lating to the defendant's improper appropriation, use and advertise- ment of plaintiff's title will be understood to relate to the con- duct of the defendant after notice of plaintiff's rights. The recjuosts for findings have been passed upon. Settle a decision on noticf; wliich shall embody all findings made by me and which shall further provide for the injunction and accounting proposed by plaintiff except that the profits and damages to be accounted for and assessed shall be limited as above indicated and that tliis relief shall be granted only against the defend- ant served, and which shall pro- vide for final judgment on the coming in and contirmtition of the referee's report ; and shall further provide that all questions as to costs and allowances be reserved until final judgment." *' Sclig Polyscoiic Co. v. Uni- corn Film Service Corp. (1917), 163 N. Y. Supp. 62. Opinion after final hearing. " The plain- tiffs have brought this action for an injunction to restrain tlie de- fendant's use of the words "The Rosary" as the title of a photo- USINO RAMH OI{ SIMILAR TITLES 423 play and for clarnaRes f(;r the alleged unauthorized use of that title. There eaii he no doubt that tiie pliiintilTs Rowland and Clifford first adopted this title in connection with a dramatic composition. Their play by that name which was copyrighted in the year H)10 was successfully producetl in the following year and during four sea.sons after- wards. In June, 1915, this play under the same title wa.s produced as a motion picture by the plaintiff Selig Polyscope Company, which concern had acquired from Rowland and Clif- ford the right so to reproduce the original play. It appears from the evidence that this representation both on the stage and as a motion picture had met with marked acceptance by the public and that the good will acquired by the plaintiffs in the production under this chosen title "The Rosary" became of substantial value. While the title of a copyrightetl play is not protected by the copy- right, the use of that title is none the less to be secured to the owner of the copyrighted matter as a trade mark, if the title so first employed by him has acquired a trade significance as an arbi- trary' designation. Oulcnidt v. Lamar, 135 App. Div. 100, 117; CasweU v. Hazard, 121 N. Y. 484, 494; McLean v. Fleming, 96 U. S. 245, 254. As wa.s .said in the ca.se last cited: "Phra.ses or even words in common use may be adopted for the purpose, if, at the time of their adoption, they were not employed by another to designate the same or similar articles of pro- duction or sale." Here the phrase "The Rosary," while well known in its reference to a form of religious observance, is in no sense descriptive of a drama, as such. It is an arbi- trary title when so employed, and, as app>ears, the authors and pro- ducers of the plaintiffs' play atiupted this title to identify rather than describe the comporne out by the moving pajx^rs. No effort 426 THE LAW OF MOTION PICTURES The New York Supreme Court in another case involv- ing two motion pictures entitled respectively "The Girl Who did Not Care" and ''The Girl Who Doesn't Know" held that there was no conflict between such titles.2^ to deceive has been made and no means calculated to perpetrate a fraud upon the public have been employed. The plaintiffs cannot claim that the term 'The Rosary' is a fanciful device to which they are absolutely en- titled. They neither acquired proprietorship therein by origin or purchase. The words are de- scriptive and they have been variously and commonly used in this country, and in fact in every Christian country for years, and undoubtedly other plays so named, particularly of a religious nature, have been and are now be- ing produced. I am satisfied that not only has there been no at- tempt made on the part of the de- fendant to imitate the i)l:iintirfs' drama or to mislead the pul)lic, but that no ownership in the title can be predicated herein. Motion denied." 2'i li. S. Mosn Motion Picture Cory. v. Ivan Film Prod. Inc. (1917), X. Y. Law Journal, Jan. 2;i, Coliulaii J.: "Plaintiff moves f(;r an injunction pendente hte. It seeks to restrain the defendant from using in the production of a photoplay the name "The Girl Who Did Not Care." The plain- tiff is the owner of a photoplay which is entitled "The Girl Who Doesn't Know." It is claimed that the name of the de- fendant's play conflicts with that of the plaintiff. The defendant asserts that the name of its play was selected by the deputy commissioner of licenses out of a list of six names submitted to him. As a matter of unfair com- petition, I am of opinion that the papers do not show clearly the plaintiff's right to injunctive relief. Moreover, it is not shown that it has actually sustained any damage. There is no proof that confusion has arisen through the respective titles of the play or that any advantage has ac- crued to the defendant or any disadvantage to the jilaintilf. The titlcK do not conflict with each other; the method of adver- tising the (lef(!ndant's play is distinctive from that of the USING SAME OR SIMILAR TITLES 42: The most recent case is that of Manners v. Triangle wherein the Federal court enjoined the use of a title of a dramatic composition in connection with a motion pic- ture upon the theory of unfair competition.-' pluiiitifT, and in that respect iippareiilly no attem|)t Ikls been nmde to deceive the public. Tlie phiiiitilT cannot claim that the term "The Cirl Who Did Not Care" i.s a fanciful device to which it i.s absolutely entitled. The word.s are descriptive, and as no attempt has been made on the part of the defendant to imitate the plaintilT'.s drama or to mislead the public, no complete ownership in the title may be predicated herein. Motion de- nied." *< Manners v. Triangle (1917), U. S. District Court, Southern District of New York, X. Y. Law Journal, June 21. Man ton, D. J.: "The plaintiff is a well known playwright and seeks, in this action, t(j restrain, by in- junction, the defendants from . using the title "Happiness" as the title of a play or photoplay. He claims that in violation of his Roleripht in tlie title "IIapi)iness" as a trade name or trade mark, the defendants should not only be restrained in its use, but .should compensate him for the damages he has sustained. The action has l)een removeer, 222 U. S. 61." On appeal, reversed upon the ground that no actual prior user was shown, but the rule involved was expressly recognized — C. C. A., 2d Circuit, November 13, 1917. Ward. J. See also: lliodor Picture Corp. V. Michaihff d al. (1017), X. Y. Law Journal, October G. Hough, C. J. : "This action is sustainable only as a copyright bill, a finding based on the citizenship and resi- dence of the necessary ])arties. "A threatened infringement of copyright is enough to sustain a bill. " I assume that defendant Ex- port & Import Film Co.'s photf>- play deals with entirely dilTer- ent scenes, times and surround- ings from those employed by plaintiff. Ivan the Terrible was n(jt a Romanoff, and the sixteenth was different from the twentieth century, even in Ru.ssia. This is common knowledge. " But when a copyrighted play is registered as Tlie Fall of the Romanoffs, and lliodor Is a prominent character therein, de- fendants' acts in advertising The Tyranny of the Romanoffs with lliodor arc nonscn.sc, unless in- tended to create the belief that the play so named did or does deal with the same matters naturally suggested by The Fall of the Romanoffs with lliodor as an actor. " Where the title of a play is descriptive it may be part of the right or property covered by the copyriglit. The dividing line Ijctween copyright or trade-mark infringement and unfair compe- tition is not easy to draw in many cases. " Here there is plainly such unfairness, but there is a threat of infringement also by the up- jjfopriation of name and actual infringement in the simulation of Iliodor's costume in adver- tising matter. Injunction jKMidente lite will contiinie against Blumenthal, The Export & Import Film Company, 432 THE LAW OF MOTION PICTURES action an application was made by the plaintiff for an injunction pendente lite, which was granted.^^ After a trial upon the merits, judgment was found for the de- fendant and the complaint dismissed, the court holding that there was no such similarity between the titles as would mislead or deceive the pubhc.-*^ Inc., and Chadwick, preventing their use of the title 'The Tyr- anny of the Romanoffs with lUodor,' and from using, showing &c., any photograph of IHodor in a costume shown on that person in plaintifT's copyrighted photoplay. " I am satisfied that defendants have pirated one of plaintiff's copyrighted photographs of Ili- odor, hence this last direc- tion. " To avoid (if possible) further motions it may be said that I should not consider 'The Tyr- anny of the Romanoffs' a copy- ing or infringement of 'The Fall of the Romanoffs.' It is the phrase 'with Iliodor' which under the circumstances consti- tutes the actifjnable threat of in- fring(!ment, a threat not the less actionable because a story con- cerning Ivan the Terrible would not and could not make the threat good. "This of course is cnlircly apart, from tlie above incut ioncd ap- propriation of Iliodor's photo- graph. " Plaintiff will give security in $5,000. Settle order on notice. The stay order as against all defendants not above named will be vacated." 25 Selig Polyscope Co. v. Mutual Film Corp. (1915), N. Y. Law Journal, September 28. -'^ Selig Polyscope Co. v. Mu- tual Film Corp. (1917), N. Y. Law Journal, February 1. Opin- ion after final hearing. Pen- dleton, J.: "This is an action brought to enjoin defendants from using as the name or title of a photoplay "The House of a Thousand Scandals." Plain- tiff, under permission from the author or his assigns of a novel entitled "The House of a Thou- sand Candles," produced or made a film for a picture play following tlie story and incidents .set forth in the novel and about August, 1915, conHucMiced ex]iil)itinR such moving picliirc i)Iay under tlie name of "The House of a Thou- USING SAM?: OK SI.MILAlt rn'LES 433 The (lUC'stiou "in the lust complicated by the fact that wind Candles." Defendants or tlieir predecessors in interest made a film for a picture i)lay witli the title or name of "The House of a Thousand Scandals," the story or plot of which is not taken from or based on the story of the novel, and proposes to exhibit the same under the above name. Both parties have ex- jMMuled C(jnsiderable sums of money and extensively adver- tised their productions under the respective names aforesaid. The action is in equity to restrain and prevent unfair competition. Although there is evidence as to copyrights secured, the cause of action docs not arise thereunder and such facts are only material as showing the history of the case. The gist of the action is that the public is liable to be misled or deceived. Ikill v. Broadway linznar, 104 X. Y. 435; Klaw v. General Film Co., 154 N. Y. S. 988. The plays them- selves are entirely di.ssimilar. The words and language of the resjx'ctive titles are to some ex- tent descriptive of the two plays and the differences in tiie plots. Plaintiff advertises its j)lay as taken from the novel. There is inciitioiK'd case was further the i)laiiitifi" based his action nothing, either in word or simi- larity of design in defendants' ad- vertisements of its play outside of and apart fnjin the alleged similarity in the name or title, tending to show or suggest that defendants' jjlay was taken from the novel or is in any way similar to plaintiff's play, and there is no evidence that any one has been misled or any confusi(jn occa- sioned between the two produc- tions. In fact there is some evi- dence that there has been no such confusion and that the two plays have been exhibited in the same theatres at different times, a circumstance going to show that they have been regarded and treated as distinct and different exhibitions. Even if it be tis- Kumed that the title "The House of a Thousand Candles" Ls not ilescriptive, but an arbitrary or fanciful title, the use of which as a trade name will be protectctl, where the unfair competition is based on alleged similarity the resemblance must be such as to deceive a person making natural and ordinary use of his senses. Munro v. Tousey, 129 X. Y. 38. While there is some similarity here as idem sonans, the words 434 THE L.\W OF MOTION PICTURES upon its rights in the famous novel by Meredith Nichol- son as well as upon the rights accruing to it because of the production and exhibition by it of a motion picture under such title. This brings us to the question whether the owner of a novel who has not as yet made a motion picture repro- duction of the same may enjoin a motion picture pro- duced under the same title as that of his novel. Offhand, they do not seem to be in the same class of goods, and hence not in competition with one another. In Atlas V. Street & Smith, -~ the leading case in this coun- try in w^hich the question was touched, this position was taken by the court. A great deal, however, may be said in favor of those who take the position that there is direct competition between the two. Under the copjTight law the copyright owner of the novel has the sole and exclusive right to make a dramatization of his novel. A dramatization having been held to include a motion picture reproduc- tion of a work, it is argued that a stranger who puts out a motion picture with the same title anticipates a right which the novelist is given under the copyright; and "Candles" and "Scandals" havo respectively well defined meanings and represent entirely different conceptions. As defendants' title is not in terms misleading anil there is no evideiu* that any one has been misled or that any confusion has been created, it can not be .said that it is calcu- lated to deceive or that decep- tion or confusion is probable, and as defendants have not been shown to have done any other acts tending or liable to deceive or mislead a case for an injunc- tion has not been made out. Judgment for defendants. " " Atlas V. Street & Smith (1913), 204 Fed. (C. C. A.) 398. USlNLi S.UIE OIC ai.MlLAlt TITLES 435 whon the novelist attempts to avail himself of his right to reproduce his work in motion pictures under his copy- right, he finds that he cannot use the very title which he has conceived. Should he use the same title he would be unfairly competing with the stranger, who, by prior user, had ac(iuired a superior right to the title with respect to a motion pictm-e. In other words, a potentiality of his novel is the develo])ment of the same in the form of a motion i^icturc, and the production of a motion picture under the same title by a stranger cuts off that potential development of his work. His predicament is extreme, for should he exercise his pri\ilege under his copjTight and make a motion pic- ture reproduction of his novel under another title, a.s he would be compelled to do, he would at once lose all rights conferred upon liim by his copyright of the novel, under the rule that the exploitation of the copjTighted work under a title different from that applied to it when securing copyright, amounts to a dedication of the work.-^ In other words, liis cojDyright gives the novelist certain specified rights. In attempting to exercise those rights he is prevented from so doing by the laws of unfair com- petiti(jn. To escape the conse(iuences of unfair competi- tion, he must change the title of the motion picture re- production of his novel; and the moment he does that, he loses his coi)yright entirely. He is placed in the posi- tion where he must not exercise the motion jiicture rights derived from his cop>Tight under penalty either of losing ^^ Collier V. Imp. Films Co. (1913), 214 Fed. (D. C.) 272; See also Section 142. 436 THE LAW OF MOTION PICTURES his entire copyright or of competing unfau'ly with his neighbor. To realize the practical effect of this rule, we may take the case of a famous novel which has enjoyed a circulation of half a million. A stranger comes along, while the fame of the novel is at its height, and puts out a picture en- tirely unrelated to the novel in story, plot, theme, charac- terization or situation — but with the identical title. If it is the law that there is no competition between them, the novelist is barred from producing a motion picture of his novel under any title, and the motion picture pro- ducer may with impunity palm off his mediocre work as the product of the novelist, and thereby reap the benefit of the latter's genius. On the other hand, it may be said that the whole theory of unfair competition is founded on the protection of the trader in the conduct of his business. Would the pro- duction of a picture bearing the same title as a novel, decrease the sales of such novel? Would there in any event be actual competition? Would the picture in- fluence the public not to purchase the novel? It may also be asked whether a novel published under the same title as that of a prior motion picture would result in a decreased attendance at the exhibition of the picture. The argument advanced is that the effect of one upon the other is too pr()l)Iomatical and r(>inote to permit the aggrieved i)arty to invoke the law of unfair competition for his protection. It has generally been assumed that Atlas v. Street & Smith has settled the law in this country to the effect that there is no coini)etition between a novel and a motion USING SA.MK OR SIMILAR TITLES 437 picture. Wliilc in tho |)n>vailinp; ojjinion that statement is made, it is j)ure ol)iter dictum. 'I'hc (juostion invohcd in that case was not between a novel and a picture, hut between a series of publications and a jiicture. There a series of works, each under a different title, had been jHiblished from time to time, the entire series being known under the name "Nick Carter." The court was right in its conclusion, for the exhibition of a j)icture under the same title could not very well affect the trade in the .series; the situation is analogous to that of a motion picture published under the same title as that of a periodical. How can it be said that a person contemplating attend- ance at the exhibition of a motion i)icture may be under the impression that he will see reproduced a periodical ! The question has not yet come squarely before the courts.-^ 29 See: Harper v. Ranmifi (1895) , G7 Fed. (C. C.) 904. This ca.sc was l)r()Uf?lit under tho ("ojn'right Act for an intrinffcincnt. The defendant pcrrdrnicd a (h'amatic composition hcarinfr tlie same title as the jjhiintilT's novel. The plot, scenes and dialogue of the novel, not having been imitjited or adapted, the court held that an action did not lie, as the cojiv- right law did not ])rotect a title alone, but only in .so far as it wa.s a jiart of the copyrighted work. This case has sometimes been cited in supjiort of the proi^)si- tion that there is no unfair com- petition between a novel and a dramatic composition but it will be noted that unfair competition was not at all involved in the case. See: .Utor v. W. 82nd St. Realty Co. (1915), 167 A. D. (X. Y.) 273; 1.32 X. Y. Supp. 6.J1. An hot(>l and an apartment hotel bore the same title, "Apthorp." Held, tiiat since one desiring rooms by the day or longer in a hotel would not be apt t rule is well settled that, on the expira- tion of a patent for an article which has become identified by some particular name, as the name of the inventor, although it is open to the public to manu- facture the patented article and to call it by the name by which it is commonly known, it is un- fair competition to do so unless the person making the article affixes to it a plain notice that it is not made by the owner of the original patent, but by some one else. Singer Mfg. Co. v. June Mfg. To., 163 U. S. 1G9; 16 Sup. Ct. 1002; Merriam v. Famou.^ Shoe etc. Co., 47 Fed. (C. C.) 411. The same rule has be<'n applied to cop>Tights. Merriam Co. v. Ogilric, 159 Fetl. (C. C\ A.) 638." Estes v. Williams (1884), 21 Fed. (C. C.) 189; Estes v. Leslie (mS6), 27 Fed. (C. C.) 22; Estes V. Worthington (1S87), 21 Fed. (C. C.) 154. 440 THE LAW OF MOTION PICTURES Section 123. — Infringement of titles — Titles held to in- fringe. Defendants, who had obtained the services of one Heney to revise an old work, and had entitled it, Heney's New and Revised Edition of Jousse^s Royal Standard Piano- forte Tutor and had printed the word ''Heney" in large letters, both on the title page and cover, were held to infringe the plaintiff's work Heney' s Royal Modern Tutor for the Pianoforte.^* So, too, were the titles Canadian Bookseller and Literary Journal and Canada Bookseller and Stationer held to in- fringe. ^^ The plaintiffs and one Beatty had carried on the busi- ness of pubUshing and selling copybooks under the title of Beatty' s Head Line Copy-Book. Subsequently Beatty withdrew from the firm, received twenty thousand dol- lars for his interest therein, and registered liis name in connection with copybooks. He then contracted with the defendant to prepare copybooks, and these were to be sold under the title Beatty' s New and Improved Head- Line Copy Books. It was held that he could not do so.^® '* Metzler v. Wood (Eng.) The cases rest in ii sinij^le proposi- (1876),8 Ch. D. 606. "But when tion enunciated by liord Long- the defendant came to print the dale in Croft v. Day, 7 Beav. 84, cover, fair trading required that which is 'that no man has a the exterior of the work should right to soil his own goods as the bear the name of Jouase as the goods of another.' That is the prominent word, and that the principle on which I decide this name of Hcnrcy as editor should case." be made subordinate. The ques- ^^ Rose v. McLean (Can.) tion is whether the cover of the (ISOO), 21 Out. A|)p. 240. book is nf)t calculat(!(l to deceive. ■^'^ Canada I'ldjl. Co. v. limlly INFRINGEMENT OF TITLES, ETC. 441 Plaintiff pul)lisli{>(l a niapazino under the title of Subur- ban Life. Defendant attenii)ted the publication of a periodical, Philadelphia Suburban Life. He was enjoined." The title J. Grubefs Hagerstmrn Tcnvn and Counttj Al- manack was held to infringe upon the title T. G. Robert- son^s Hagerstown Almanack.^^ The title Sherlock Holmes, Delective, has been held to infrinj!;(^ Sherlock Ilolmes.^^ A book or paini)hlet published by the plaintiff under the title of Payson, Drunlon & Scribner's National System of Penmanship, was held infringed by defendant's book, Independent National Syst£m of Penmanship.^^ effect of defendant's action, ir- respective of his intent, Is to pro- duce confusion in the public mind and consequent loss to the plaintiff." Citing American (Hay Mfg. ('a- V. American Clay Mfg. Co. (1901), 1<)S Pa. ISO; 47 Atl. 03G. ^^ R(>hni.'fendant who published a similar series of pam- phlets under the title Xcw York Detective Library, from publishing any book or pamjihlet containing in its title, or in any part of it, the word Sleuth. The comphiint was disniissed.^- Defendant produced a motion i)ieture under the title The Girl Who Did Not Care. Plaintiff had produced a motion ])icture before defendant's entitled The Girl Who Doesn't Know. Injunction was denied.'*^ It was held in Canada that there was no unfair eom- " r roll man v. Miller (1894), *^ Alias Mannfnclurittg Co. v. S Misc. (N. Y.) ;J7!); 20 X. Y. Street cfc Smith (1913), 'JO-t Val. Supp. 1109. (C. C. .\.) 39S. 'HUn.scr y. St. Elmo Co. {IdOO), »'Munro v. Toiuscij (1.S91), 17.-) I'Vd. (('. (".) •27»). 129 N. Y. :iS; 29 X. K. 9. ■■• /.saar.s- v. Dnli/ (1S74), 7 "^ li. S. Moss .Motion I'icturc Jones & SjxMU'cr (N. Y.), .')ll. Corp. v. Ivan Film Prod. Inc. ^ Strin-ger v. Froliman (191.')), (1917), X. Y. Law Juunuil, Jan. 152 N. Y. Supp. 935. 23. 448 THE LAW OF MOTION PICTURES petition in the case of two books entitled The New Cana- dian Bird Book and The Canadian Bird Book respectively.^'' In England the title The Evening Post was held not to infringe the title The Morning Post; ^^ so also when the titles were The North Express and The Daily Express; ^^ the Mail and Morning MaiU'^ Where the titles of two magazines were The Field and The Field and Kennel,^^ there was no unfair competition. No injunction was granted where the titles of the maga- zine were Everyhodifs Magazine and Everybody's Weekly.^^ The court also refused an injunction where the titles of the plaintiff's magazines were The Plumber and Decorator and The Decorators' and Painters' Magazine, and that of defendant's publication The Decorator?^ Plaintiffs issued a periodical entitled M.A.P., the title being an abbrevia- tion for Mainly About People. The defendant's pubhca- tion was entitled P. T. 0., being an abbreviation for People Talked Of. No injunction was allowed.^ ^ And a publication entitled Punch ct* Judy could not enjoin a publication under the title of either Punch or Judy.^- »* Mclndoo V. Musson Book »» Cox x. Sports Publishing Co. Co. (Can.) (1013), 35 0. L. 11. (Eng.) (1902), Times, June 14. 42. ' ^^ Ridgwaij Co. v. Amalgamaicd ^^Borthwick v. The Evening Trm (Eng.) (1911), 28 T. L. R. Pod (Eng.) (1888), 37 Ch. Div. 149. 449. *' Dale Rcj/nolds v. Tntdc Papers See also: KcUg v. Bylcs (l':ng.) J'nbl. Co. (l':ng.) (1902), Times, (1880), 13 Ch. Div. (582. December 9. »" Dillon V. Pearson (I'hig.) "' <". Arthur Pearson Ltd. v. (1901), Times, December 23. T. I'. (rConnor (Eng.) (1900), " Waller v. Emmoll (Eng.) Times, Ma.v 12. (1885), 54 L. J. Ch. 1059; 53 ^^ Bradbury v. Bceion (Eng.) L.T.437. (18U9), 18 W. R. 33. ACQUIESCENCK AND AHA.M.O.N.MKNT 449 PlaintilT and dofeiKlaiit both publishrd l;(;(jks under the title Collage Homes of England. The books were of an entirely different character. No injunction was al- lowed; '•'•■' so' also in the case of the title Our Sailor King, the court holding that the books appealed to different classes of customers, hence no competition, even though the text was quite similar.'" It was held that plaintifT, the owner of a i)lay entitled Where Uiere's a Will, Ihere's a Way, was not entitled to enjoin the production of defendant's play entitled Where there's a WilU' Section 125. — Acquiescence and abandonment. Mere non-user of a title for a length of time is not in itself an abandonment of the right to its exclusive use.^ There must be something more tangible, some express act to evince such an intent to abandon, or a series of acts from which such intent may be clearly implied. "To estabUsh the defense of abandonment it is necessary to show not only acts mdicating a practical abandonment, but an actual intent to abandon. Acts which unexplained would be sufficient to establish abandonment, may be answered by showing that there never was an intention to give up and relinciuish the right claimed." '' *^ Crotch V. Arnold (Eng.) Fwl. (C. C.) 121. The fiiilure to (HKM)), M S. .1. 40. put out the article for a short '>*John F. Sluur it Co. v. Col- iKTiod so that it i.s not in the fi/w (EnR.) (1911),Times, June'J. market iit the time of the com- *^ Brocmd v. Meyc'' (J'^"g) meiicement of suit, does not con- (1912), 29 T. L. U. 148. stitute abandonment. ^Jantwy v. Pan-Coa.st Yen- '• Snjkhtwr v. Eisner ct nl. tilator Mfg. Co. (1904), 128 (1900), 179 U. S. 19; 21 Sup. 450 THE LAW OF MOTION PICTURES The mere fact that third parties have made use of the plaintiff's title is not of itself conclusive or presumptive evidence of an abandonment.^^ The burden always re- mains upon the defendant to establish the abandonment.^^ Having established such abandonment, however, the courts will refuse to enjoin the defendant from using the title; it will follow then as a matter of course that the plaintiff will receive neither an accounting of profits nor damages. ^°° Ct. 7. Quoted with approval ia Baglin v. Cusenier Co. (1911), 221 U. S. 580; 31 Sup. Ct. 669, where it was said: "There must be found an intent to abandon or the property is not lost." ^i Cuervo v. Henkell (1892), 50 Fed. (C. C.) 471. . . . "And as to other imitations of his own trade-mark, there is not a particle of evidence to show that these were made or sold with his con- sent or acquiescence. This de- fense has been so frequently and forcibly condemned l)y authority that further discussion is profit- less. (Citing cases)." Intermilional Cheese Co. v. Phoenix Cheese Co. (1907), 118 A. D. (N. Y.) 499; 103 N. Y. Supp. 362. "And the fact that hotels and restaurants were sclhiif:; otlier brands of cheese as Pliiladclpliia cream cheese docs not show an intent by defendant to abandon its trade-name or to make it public property." ^^ Julian V. Hoosier Drill Co. (1881), 78 Ind. 408; Indian Rubber Co. v. Rubber Comb Co. (1879), 45 Super. Ct. (N. Y.) 258; Saxlehner v. Eisner (1900), 179 U. S. 19; 21 Sup. Ct. 7. ActiengeseUschxiJt v. Arnberg (1901), 109 Fed. (C. C. A.) 151. " It is no answer to his complaint against any particular person who has so used it to say that such trespasser is not the only one who has done .so, for a tres- passer cannot justify upon the ground that otliers have com- mitted hke trespasses. . . ." ^<>» Black ivcU V. Dibrcll (1878), Fed. Cas. (C. C.) 1475; Royal Baking Powder v. Raymond (1895), 70 Fed. (C. C.) 376; j\fntrndez v. Ilolt (1888), 128 U. S. 514;9 8up. Ct. 143. ACQUIESCENCE AND ABANDONMENT 451 Acciuicsccncc may consist in cither permitting a third party to use the title for a time without making any ])ro- test, or in allowing the defendant to use it for a long time before commencing the action to enjoin. To constitute accjuiescence there must be full scienter on the part of the plaintiff. Unless he knows of the in- fringing acts, he cannot be said to acquiesce in them. It is no defense to an accounting and claim for dam- ages to establish user of the title by third parties, unless in addition thereto the defendant shows acquiescence in such user.'^' Where the plaintiff has knowingly permitted the de- fendant or others to use his title for a long time and has made no attempt to assert his rights as against them, he will not be permitted to pick out the defendant as a special infringer, pursue him alone, and recover an account of profits. The English rule penalizes a plaintiff by refusing all relief including injunction. The American courts, how- •"'jSe/ig Polyscope Co. v. L'ni- tlieir films at dates long after corn Film Service Corp. (1917), the phiintiflfs Rowland and Clif- UV.i \. Y. Siipp. 62. "Justifica- ford acquired their trade-mark tion for tliis use of the phiin- by original adoption. Whether tilT's trade-mark cannot he fountl the lihns referred to were actually in the fact that the catalogues exhibited under the condition.s in evidence disclose the dcsigtia- which the plaintifTs might or tion of other motion picture films might not have found to he in- by the use of the word 'Rosary.' jurious to their rights is a matter So far as these catalogues have of sfHjculation, but the defend- any value as proof, they indicate ant's case is not aided by point- no more than tliat other jK>rsoiis iiig to a possil)le invasion of these in three instances have so naiued rights by others." 452 THE LAW OF MOTION PICTURES ever, will ordinarily grant injunction when the right thereto is made out, even though, there be acquiescence, but will in such cases deny an account of profits and an award of damages.^"- Nor will they in such cases grant a temporary inj unction. ^°^ The reason for the American rule is that where the plaintiff has stood by wdthout protest and permitted the defendant to infringe upon his rights, and has allowed him to expend moneys in marketing and advertising his product, he is not equitably entitled to the fruits of the defendant's enterprise, or to make any claim for damages sustained by him. But not having divested himself of his property right, equity will protect him agamst any future infringement thereof. ^°^ ^°^ McLean v. Fleming (1877), 96 U. S. 245. "Cases frequently arise where a court of equity will refuse the prayer of the plain- tiff for an account of gains and profits on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent further infringements." Allen V. Walker (1916), 235 Fed. (D. C.) 230. Where de- fendant had been infringing for two years, and had not boon noti- fied to desist it wa.s hold such laches as to preclude an account- ing. Slraiisff V. Nolnsnnc (U>. (1015), 240 U. S. 179; 30 Suj). Ct. 288; Menendez v. Holl (1888), 128 U. S. 514; 9 Sup. Ct. 143; Avioa- keag v. Spear (1849), 2 Sandf. S. C. 599. See in this connection: Saioyer v. Kellogg (1881), 9 Fed. (C. C.) 601. ^'^^ Burns v. Burns (1902), 118 Fed. (C. C.) 944; Virginia Hot Springs v. liegeman (1905), 138' Fed. (C. C.) 855. ^'>* Menendez v. Holt (1888), 128 U. S. 514; 9 Sup. Ct. 143; Fairbanks v. Lrwkel (1902), 116 I'od. (C. C. A.) 332; Sawyer v. Kellogg (1881), 9 Fed. (C. C.) 001; McLean v. Fleming (1877), 96 U. S. 245. RELIEF 4r)3 Where the defeiKhuit had originally manufacturfd and sold "Royal" baking jxjwder and had become bank- rupt, he could not after a lapse of twenty-three years, resume the use of that trade name, the plaintiff having in the meantime built up a large business under the same trade name.'"' Some wTiters have sought to draw a distinction be- tween "laches" and "accjuiescence" although the terms have been used interchangeably by the courts. We can- not see any real distinction between the two. Both involve knowledge on the part of the plaintiff of the de- fendant's invasion of his rights. Both contemplate a standing by and a tacit permission to the defendant to continue his infringement. Section 126. — Relief. In actions of this kind the i)laintiff is entitled to an injunction, an accounting of defendant's profits, and damages sustained by him. It does not necessarily follow that in every case the plaintiff is entitled to all these modes of relief. lie is ordinarily entitled to an injunc- tion where he has not abandoned the title. '^ \Miether he is entitled to an accounting or damages is a question to be determined from the facts of each i)ar- ticular case. The cases thus far have not laid down uni- form rules. For instance, in several cases the use of the identical title was held sufficient to entitle the plaintiff •"7?07/aZ Baking Co. v. lioi/- OH; Xocbiiis v. De Jonge & Co. 7nam/(lSlF)),70F(Hl. ((\C.)370. (1914), 215 Fetl. (D. C.) 443; '"* Lr Pngc Co. v. Russian Cc- Cnilal Drug Co. v. licclaniis Co. menl Co. (1S02^,.^)1 Fed. ((\ V. A.) (1!)13), 20<> l-Vd. (D. C.) 570. 454 THE LAW OF MOTION PICTURES to an accounting and damages, even though nothing else ^"^ Then again, to entitle the plaintiff to an their ownership, management and control. The defendant disclaims was proven ^"''Miracle v. Danziger (1913), N. Y. Law Journal, March 8; Klaw V. Gen&'ol Film Co. (1915), 154 N. Y. Supp. 988; aff'd 171 A. D. (N. Y.) 945; 156 N. Y. Supp. 1128; Selig Polyscope v. Unicorn Film (1917) , N. Y. Law Journal; 163 N. Y. Supp. 62. Ziegfeld Follies v. Gus Hill (1916), N. Y. Law Journal, De- cember 5. " Plaintiff does not claim on this motion any ex- clusive right to the use of the word "Follies" as a name ap- plied to theatrical attractions. It merely asks to be protected against the appropriation by the defendant of the name or title "Follies of 1917" or "Fol- lies of" any particular year and his using it as the title of a theatrical production, on the very sufficient ground that it or its predecessors in interest created and applied that title to a successful theatrical production nearly ten years ago, and have used it ever since as the name of a distinctive and very popular theatrical production, which by the expenditure of a very large sum of money the plaintiff and ifs prefleressors in int«rest have popularized and identified with any intention of misappropriating plaintiff's property rights or trad- ing on plaintiff's name and points to the fact that the title he uses is "Gus Hill's Follies of 1917," claiming that the important part of the name, so far as drawing power is concerned, is in his own name "Gus Hill," which is widely known throughout the country and identified with a certain class of productions. It is doubtless true that the defendant's name is widely known and serves to identify in the minds of the public the kind of production to be ex- pected under his management or direction. But if, as the defend- ant claims, it is his name that attracts, rather than the fanciful name of the production, whatever it might be, it is difTicult to see why he deliberately adopts the particular name that plaintiff has popularized and lias so long used, or why ho insists so strongly upon using this particular name. It is a ca.se where, as Judge Coxe observed in Florence Co. v. ./. C. Dowd, 178 Fed. Rep. 73, 70, "if honest he should stop voluntarily, and if dishonest he should be RELIEF 455 accounting and an assessment of damages, it was lield that he must estabhsh actual losses as well as fraud.'** Motion corn polled j?rante4; 34 N. E. 904. "It i.s not neces- sary to sustain an action cjf this kind cither to establish a guilty knowledge or fraudulent intent on the part of the wrong-dcwr. It is sufficient that the proprietary right of the party and its actual infringement is sho^NTi." See also: Howard Co. v. Carlton (1915), 219 Fed. (D. ('.) 913; Oneida Communily v. Oneida (1914), 150 X. Y. Supp. 923; modified 168 A. D. (X. Y.) 709; 154 X. Y. Supp. 391; Salration Army v. Salvation Army (1909), 135 A. D. (X. Y.) 268; 120 X. Y. Supp. 471; Clinton Metallic Paint V. A'. Y. Metallic Paint (1898), 23 Misc. (X. Y.) 66; (1898), 50 N. Y. Supp. 437. '^ Elgin Nat. Watch Co. v. Illinois Watch Co. (1900), 179 U. S. 665; 21 Sup. Ct. 270; O.^- good v. Allen (1872), 1 Holmes (C. C), 185; Fed. Cas. 10603; Day V. Webster, 23 A. D. (X. Y.) mi; 49 X. Y. Supp. 314; Kipling V. PiUnam (1903), 120 Fed. (C. C. A.) 641; Morgan v. Walton (1898), 86 Fetl. (C. C. A.) 605; .V. A'. Fairbank Co. v. Windsor iwm), 124 Fetl. (C:. C. A.) 200; Pilliken Co. v. Baker ct B. Co. (190<)), 174 Fed. (C. C.) 829. United Drug Co. v. Redanus Co. 456 THE LAW OF MOTION PICTURES Some cases hold that although fraud is not established specifically, and there is no direct proof of actual loss, nevertheless an accounting and damages will be allowed. ^°^ Each case must be decided upon its own pecuhar facts. Where a play has achieved national or international re- nown, and is well known to the public, the mere appro- priation of the title, no matter whether it be accidental or deUberate, is in itself sufficient to estabUsh a wrongful intent, giving the rights to injunction, accounting and damages. ^^° On the other hand, where the plaintiff's (1913), 206 Fed. (D. 0570. "... We are clearly of opinion that the facts stated require us, under the express mandate of the au- thorities cited, to hold that the right of the plaintiff to the ex- clusive use of the word Hex in connection with medicinal prep- arations for dyspepsia and kindred diseases of the stomach and di- gestive organs must he sustained. The following, among many cases, while requiring that judgment, also show that while an injunc- tion against the future use of the word Hex in coniicction with the character of preparations in- dicated should 1)0 granted, no accounting for profits, nor any assessment of damages for un- fair trade, need on the facts found be decreed. Snxlehner v. Eisner and Mendelsohn Co. (HKX)), 171) U. S. 11); Snxlehner v. Siegel-Cooper Co. (1900), 179 U. S. 42; Menendez v. Holt (1888), 128 U. S. 514; McLean v. Fleming (1877), 96 U. S. 245." ^"^ Dickey v. Mutual (1916), 160 N. Y. Supp. 609; N. K. Fair- hank Co. V. Windsor (1903), 124 Fed. (C. C. A.) 200. ^^°Frohman v. Payton (1901), 34 Misc. (N. Y.) 275; 68 N. Y. Supj). 849; Frohman v. Morris (1910), 68 Misc. (N. Y.) 461; 123 N. Y. Supp. 1090. See in this connection: Kathreiner v. Paslor-Kneipv (1879), 82 Fed. (C. C. A.) 321. See also in this coimection: Ilier v. Abrahams (1880), 82 N. Y. 519. To maintain an action for unfair competition because of the use of the same trade; name, trade-mark, symbol or device it is not necessary to show that there is an intent to defraud. RELIEF 457 play is not nationally or univorsally known, an innocent party will only be enjoined from future infringements. In any case where there is an intentional infringement, or fraud is pen^etrated, the plaintiff is entitled to an ac- counting and damages; so too, where an innocent infringer after notice persists in the use of the title. ^" Notice may be given l)y wonl of mouth or by letter. Registration of a play in the office of the Register of Copyrights is notice in like manner as the recording of a deed."'- Suit actually commenced and service of a sum- mons therein is the best form of notice."' See also Dutton v. Cupplcs, (1907), 117 A. D. (X. Y.) 172; 102 N. Y. 8upp. 300. '*' Fuller V. Huff (1000), 104 Fed. (C. ('. A.) 143. "Although tiio intent of the defendant's principal wlion it coniineneod to use the name ' Health Food,' may have been innocent, the con- tinuance, after it had learned of the complainant's prior use in- dicates its deliberate intention to use the name without reference to the complainant's possible prior rights. On v. Johnson (Fng.), 13 Ch. Div. 431. " Singer MUj. Co. v. Long (Eng.) (18S2),L. R. 8App. ('as. 15. "It is not honest for them (the in- fringers) to iHTseven> in their intention, though originally the intention might not have bcH.'n otherwi.se than honest." To the same effect: Dickey v. Metro Pictures Corporation (1917), N. Y. Law Journal, April 28th. "'-' A'fl/toHa/ Car Brake Co. v. Terre Haute Co. (1884), 19 Fed. (C. C.) 520. "In reference to this subject of knowledge of the patent, I say to you that everj'- one is bound to take notice of the existence of a patent and the rights of parties under it, and is held resiK)nsible to pay for ever>' infringement that he actually jx^r- |x»trates, just a.s if he did know it. It is like the record of a (ked: the record of patents of Wiushing- ton is notice to everyone just lus your title deeds in the rwords of the proper county arc notice to all the world of your title." "^Section 25 (b). Copyright L'lw of the United States of l\M.Y.). "But the foregoing exceptions 458 THE U^Vr OF MOTION PICTURES In all these cases the rehef granted is primarily directed toward the protection of the trader rather than the protec- tion of the pubhc.^^^ Actual deception is not required to be proven. It is sufficient that the use of the title is calculated to de,ceive the pubhc.^^-^ shall not deprive the copyright proprietor of any other remedy given liim under this law, nor shall the limitation as to the amount of recovery apply to in- fringements occurring after the actual notice to a defendant, either by service of process in a suit or other written notice served upon him." i»^ Au7it Jemima Mills Co. v. Rignmj & Co. (1916), 234 Fed. (D. C.) 804. "The fundamental basis of the private remedy is however not the protection of the public from imposition, but injury to the complainant. That the public Is deceived may be evidence of the fact that the original proprietor's rights are being invaded. If, however, tlie rights of tlie original proprietor are in nowise interfered with, the deception of the public is no concern of a (-ourt of chancery." Ilanorer Milling Co. v. Mcl- calf (lOlo), 240 U. ^. 403; 36 Sii]). Ct. 3')?. "The redress that is accorded in trade-mark ca-ses is based upon the party's right to be protected in the good-will of a trade or business. The pri- mary And proper function of a trade-mark is to identify the or- igin or ownership of the article to which it is affixed. Where a party has been in the habit of labelling his goods with a dis- tinctive mark, so that purchasers recognize goods thus marked as being of his production, otiiers are debarred from applying the same mark to goods of the same description, l^ecause to do so would in effect, represent their goods to bo of his production and would tend to deprive him of the profit he might make through the sale of the goods which tlie pun-haser int^nided to buy. ('ourls alTitnl rcih'css or relief upon the grounil that a party has a valuable interest in tlie good-will of his trade or l)usiness, and in the trade-mark iidoptcd to niaiiitaiu ami extend it." ''■- Fmlinmii v. MitUr (1.S94), RELIEF 4.59 While some of the text writers have attempted to dis- tinguish between imfuir competition and actions based on the unfair use of a trade-mark or trade name, we see no such difference. Actions based on the \NTongful use of a trade name are embraced within the pjeater field of unfaii' comi)etition."'' The plaintiff is not compelled to wait until there is an actual infringement. He may apply for and .secure an 8 Misc. (N. Y.) 379; 20 X. Y. Supp. 1100. (^uotiiiK from Shook V. Wood, :V2 Lcfi. Int. 204. tlie C()urt .said, "If it was not the de- fendant's intention to produce the plaintiff'.s play the effect of it was to mislead the public and thereby injure the plaintiffs in their future business." lioj/ Wufrh Co. V. Cannan Roy Watch Co. (1,S00),2« Misc. (X. Y.) 4."); fxS X. Y. Supp. 070; Fi.^cher v. liUmch (1803), 13S X. Y. 244; a3 N. E. 1040. "The true test is whether the rcsenil)lance is .sudi that it is calculated to dec'ei\e and does in fact deceive under the; ordinary conditions whicli pre- vail in the conduct of the partic- ular traflic to which the contro- versy relates." Oneida ConwuDiHij v. Oneida a. T. Co. (1014), loO X. Y. Supp. 923; motlifieil 168 A. D. (X. Y.) 769; l.'>4 X. Y. Supp. 301. "The word 'calculate' is not uswl in tlie consideration of this evidence as planning, organizing, thinking out, or devising on the part ol defendant an inscription, won.1, or name with intention to deceive, bid rather the inherent properiies of such luime or de.'99; Scrieen v. .V./;7/( (1004), 1.34 F.hI. (C. C. .\.) 366. 460 THE LAW OF MOTION PICTURES injunction against one who threatens to compete unfairly with him.^^'' It has been held that a cause of action for unfair com- petition may be properly united with one involving the infringement of patent. The courts take the position that the unfair competition is an aggravation of the in- fringement. It would seem to follow from this, that a cause of action in unfair competition may be united with one involving the infringement of a copyright."^ Section 127. — Marks and devices. As in other trades, the motion picture producers and distributors have adopted distinguishing marks, brand- marks, signs, devices, designs, symbols and emblems to identify to the pubhc more readily their own product. These marks can be protected both under the general principles of equity and by the state or Federal statutes relating to trade-marks. While the decisions speak with more or less confusion of trade-marks, technical trade-marks and unfair com- petition, the basic principle underlying all these classes of cases seems to be the protection of the trader from the use of unfair methods. ^'^ In technical trade-mark cases, the fraud is presumed from the mere use of the same ^" EdiHon Storage Baltenj v. v. Payson (lOl.'i), 200 Fod. (C. EdiHon (1904), 07 N. J. Eq. 44; C. A.) 04. .55 Atl. 861; TaeitdMicksfahrilcs ^^'^ Amosknif} Mainifdrtio'iiig (^o. A. Vulcan v. Meyers (18!).'}), v. Spvar (lS4i)), 2 Suiulf. m\). 139 N. Y. .3fi4; 34 N. 10. 904. The similarity between the marks *^'* Farmers' Handy Wagon Co. and devices mnst in general be V. Beaver (1916), 23() Fod. (C. C. svjch as to deceive the ordinary A.) 7.31; Adams v. Folgcr (lOO.'i), j>iirrhnsfr. For cases v^herc some 120 I''t'(l. (('. ('. A.) 200; Ltulwigh similarity existed but not enoiujh MARKS AM) DKVK'KS 461 symlx)! or mark,'-" while in tlic otlicr class of cases, fraud or a fraudulent intent must be actually proven or in- dicated by the facts.'-' The tendency at the jiresent time, however, is to elimi- nate all these fine distinctions, and to view the offender in the broad light of unfair competition generally. '-^ As in the law of trade-names, prior user gives the exclusive right.'-'' Also the same rules with respect to acquiescence and al)andonment apply. The registration of a trade-mark gives no greater rights to the owner; its practical cfTect is to create a presumption to caiuse siich deception see: II u- binycr v. Eddy (1896), 74 Fed. (C. C.) 551 , where a manufacturer of istarcli used as a trade-mark a liat-iruii and the defendant u.sed a trade-mark con.sLsting of a picture of a colored woman liold- up in her extended arms a freshly ironed shirt l)osom, underneath which was a table upon whicii u small sized flat-iron appeared. Liggclt and Myers Tobacco Co. V. Fiiizcr (INSS), 12S U. S. 1S2; 9 Sup. Ct. 00, wliere com])lain- ant's trade-mark consisted of a star of tin and defendant's of a red star on a round piece of pildcd l)aix>r with the word "li^;ht" underneath and other words re- ferring to the defendant as the manufacturer. ' -■" Siinnions v. Mansfuld ( IS'.Ki), 93 Tenn. 81; 23 S. W. 105; Lau- rence Mfg. V. Tennessee Mfg. (1891), 138 U. S. 537; 11 Sup. Ct. 390; Tobacco Co. v. Hyncs (1884), 20 Fed. (D. C.) 88.3; Coffeen v. lintnton (1849), Fed. Cas. (C. C.) 2940; Milliuglon v. Fojc (Eng.) (183S), 3 Mylne & C. 338; John- ston V. Orr-Ewing (Eng.) (1882), 7 App. ('a.s. 219; EdeLslein v. Edel- .stein (Eng.) (180;i), 1 De CJex J. & S. 185; Manufacluring Co. v. Wilson, '.i App. Cas. 370. '-' Hosteller v. Bnicggeman (1891), 4() Fed. (C. C.) 188. '-'- Denison Mfg. Co. v. Thonuis Mfg. Co. (1899), 94 Fed. (C. C.) 051; Church & Dwight v. Riisa (19(K)), 99 Fed. (C. C.) 270; Reymer tt Bros v. IluyUrs (1911), llK)Fed. (C.C.)83. '" Ilainquc v. Cyclops Iron Works (1902), 130 Cal. 351; 08 Pac. 1014. 462 THE LAW OF MOTION PICTURES in favor of the owner as to use and adoption, relieving him from the bm-den of offering proof of these facts — ^it is a prima facie evidence of ownership. In addition thereto it awards treble damages as against an infringer under the Federal statute. ^-^ So far as notice is concerned, it has been held that registration does not ipso facto constitute either actual or constructive notice.^-'' Motion picture producers and distributors have vied with each other in conceiving original introductions to their pictures upon the screen. Thus they flash as an introduction or interlude to or between pictures dis- tinctive symbols such as moving stars, triangles group- ing themselves in designs, and other devices of a similar nature. In the same manner, the picture is brought to a close by some hke ingenious method, either an invisible hand spelUng out the name of the maker of the picture, or a grouping of figures or letters in some form or com- bination peculiarly distinctive. These devices are accorded protection in the same manner and for the same reasons enumerated above. Each firm adopts a peculiar color scheme or series of designs recurring throughout the exhibition of the motion picture. These may be said to resemble closely the wrappers of packagers in which goods are put upon the market; and any simulation of a device, scheme or design of this nature, will be protected upon the general theory of unfair competition. '''''' '" Sec. Or)01, Compiled Statutes Co. (1915), 226 Fed. (C. C. A.) of II. S., 19i;i. 54.'). '^'' lieetatius ('<). v. United Drug '^"Scci in this coniieclioii: Day TRANSFERAUU.ITV 4(i3 Billing and advertising matter, heralds, clip sheets and material of a similar character are important and sig- nificant intlicia upon the ([uestion of unfair dealing and carry great \Veight with the court. The use of letters of the alphabet has been held to designate grade and quaUty rather than ownership, and will not be protected as a trade-mark.^-' Section 128.— TransferabiHty. There is no exclusive right to the title as such, even though it be originated and first used by the posses.sor. The riglit to the exclusive use of the title exists solely in conjunction with the work with which it has become identified. It is, therefore, a species of property that V. Webster (1897), 23 A. D. (N. Y.) Fra7i<:aise v. Saratoga Spniig Co. 601; 49 N. Y. Supp. 314. In an action l):iso(l upon unfair coni- jK^tition tlie court said: "It is true that the similarity of the alleged wrongdoer's label may be so great that fraud will be inferred from a mere inspeo tion of the resj)ective labels. Where, however, the similarity i.s not so great as uix)n a mere in- spection to warrant the conclusion of fraud resort may l)e and usually is had to evidence nliuiulc." '" .S7ej«e/Ks V. William (190-1), 127 Fed. (('. C. A.) 9.50. On the (iiiestion whet her geo- graphical luuncs which have ac- quired a secou-danj meaning will be protected sec: La Republiqiie (1903), 191 U. S. 427; Shaver v. Hclkr A Herz (1901), lOS Fed. (CCA.) 821 ; American Waltham Watch V. U. S. Watch Co. (1899), 173 Ma&s. 85; 53 N. E. 141; American Clay Mfg. Co. v. Atneri- cnn Clay Mfg. Co. (1901), 198 Peim. St. 189; 47 Atl. 936; British-American Tobacco Co. v. lirit. Amer. C. S. Co. (1914), 211 Fed. (C. C. A.) 9:}.3; HamiUon Shoe Co. V. Wolf (1916), 240 U. S. 251; 36 Sup Ct. 269; Pettes v. American Clock Co. (1«)03), 89 A. D. (N. Y.) 345; 85 X. Y. Supp. f a device, symbol, mark, si^n. hraiid-mark. cmhlcm or other distin^uisliiiifz; feature may i)e sold or assigned, but only in eonnection with the business with whieh it has beeome identified; ■-'* they may also pass by bequest or descent; '-'^ ^"EisenMn v. Schiffer (1907), 157 Fed. (C. C.) 473. Since a trade-niiirk may not be sepa- rately a.si.>' with him a registered trade-mark, nor personal righta destructive thereof. The d\y 2\\; Burton \. Strallon Fed. (C. C.) 217; Morgan v. (1882), 12 Fed. (C. C.) 696. Rogers (1884), 19 Fed. (C. C.) TAKTIES 407 the title was not treated as tlie title (jf a literary work since it identified no particular work, but it was held to designate a series of publications issued under that name, and as such was a trade-mark. As the title constituted the sole valuable asset of the business, the sale of the title was equivalent to the sale of the entire good will of the business. ■^■- Section 129. — Parties. It is important to determine who may be held liable for the infringement of the title. We have the producer, the firm that actually manufactures the picture, the distributor, who releases it to the trade, and the exhibitor, who does the actual Injury by showing it to the public. All of them are proper parties to the action, and each is liable to account to the successful plaintiff, and to pay him damages.'^' When the action is in e(iuity, it may be brought against ^'- Jiriidhuri/ v. Divkcn.s (lOii^;.), odical, and the right t^) i)ul)Iish, 27 Beav. oii. Upon a dissolution under the same name and title of co-partnership the title of a any periodical or other work, magazine, Iloiisciwld Words was, whether in continuance of said pe- hy order t)f the court jiut uj) riodical called Household Words, for sale at auction and sold for or otherwise lus the purchaser £3,r)r)0. "The court said that might think fit." proiM^rty in a literary periodical llxcerpt from opinion in G. & like this is conlincd purely to the //. Mfg. Co. v. //«// (1S74), 61 N. mere title, and that forms part V. 220, and the princi|)le therein t)f the partnership a.ssets and stated approved and applied by must he sold for the benefit of tlie court. the partners, if of any value. '" Hennessy v. Hcrrtnatm The decHH' ordered the sale of the (1S9S), 89 Fed. (C. C.) 669. right to use the name of the peri- 468 THE LAW OF MOTION PICTURES all of the infringers at the same time, so that the court may in the one action grant all the rehef requisite with respect to each infringer. ^^^ But this does not prevent the plaintiff from pursuing any one of the infringers without joining the others. ^'^•^ If he does so, however, he cannot subsequently main- tain separate actions against the others. The courts have gone so far as to hold the officers and directors of a corporation personally liable to a plaintiff in a case where the infringement was of a willful nature. ^^^ All employes and agents are proper parties.^" In actions at law the same rule obtains, since the action is founded on a tort, and there is only one suit available to the plaintiff. Section 130. — Actions at law. We have been dealing thus far with actions where the relief sought is equitable in its nature. Indeed, this is the common and usual form of action adopted by the trader in securing speedy and permanent relief. There is, however, a remedy for the trader, in an action at law. Here the trader may recover a sum of money by way of balm to his injuries. An action of this kind '"./eim/t Col. Ass'n v. Solo- (1892), 51 Fed. (C. C.) 296; .4m- moyi (1903), 125 Fed. (C. C.) 994. strong v. Savnrmah Soap Works ''<>Hill V. Lockwond (1SS7), (1S92), .");i Fed. (C. C.) 124; 32 Fed. (C. C.) .3S9; A ppoUinaris RocjcrN v. I ntcrnalional Silver Co. V. Scherer (1886), 27 Fed. (('. C.) (1902), 1 18 Fed. (C. C. A.) 133. 18. ''' Sawyer v. Kellogg (1881), '^'^ Saxlehner v. Eisner (1906), 7 Fed. {C. C.) 721; (1881), 9 Fed. 147 Foj; it may not bo fairly held that the j)laiiitilT had actually used "Mutt and .Ie(T" as a title of Fisher's comic strips, even if it be a,ssumed that a strip may be regarded as a comic section of the pajwr. The fact is that during the entire period of its contract with Mr. Fisher plaintiff published these strips without any title of its own. The mere circumstance that in its adverti.sements the cartoons were referred to in con- nection with the words " Mutt and Jeff" is of no special significance, since it is also the fact that since September 22, 1910, Fisher pub- lished upwards of 300,000 copies of his books of cartoons selectetl from those which had appeared in the Anicriain under the title of "The Mutt and Jeff Cartoons l)y Bud Fisher." It is thus evi- dent that the plaintiff was not the first user of the words "Mutt and Jeff" lus a title or trade-mark, and that these words had not been apjjropriated by it lus a trade-mark or trade name to designate its comic section or a portion thereof, except u{)on the few occasions during the expiring months of the ugreeinent'^, aftei the plaintiff realizetl that a re- newal of th(^ Fisher contract was out of the (juestion. It is clear that this is not a ciuse where the plaintiff had Ixkju in the habit of labeling its comic strips with a distinctive mark, or where it may be fairly said that it had acquired by user the words " Mutt and Jeff" as against Fisher. Nor is this a case where it may Ix; held that the plaintiff, l)eing entitled to the exclusive services of Fisher in the drawing of the cartoons in (juestion, Ijecame en- titled to the use of the title " Mutt and Jeff" since those words origi- nati'd with FLsher before he en- tered in the employ of plaintiff and the cartoons had akeatly accjuired a reputation as "Mutt and Jeff" cartoons. The facts in this case, too, are different from these appearing in Jaeger's Co. V. Le lioutillirr, 47 Hun, ')21, where it wjus shown that Profc-vsor Jaeger had never l)een engagetl in the business of selling goods and therefore had never acquirtnl any j)roprietary right in a tratie- mark. On the other hand, the facts established in this cjuse are, that Fisher was most actively engaged for some time prior to his employment with plaintiff in producing the cartoons with 474 THE LAW OF MOTION PICTURES "Mutt and Jeff" characters. These cartoons, in effect the prod- ucts of Fisher's hand and brain, are to be treated as a commodity of barter and sale, the same as tangible goods or merchandise which may be sold under a dis- tinctive mark or name which the vendor may exclusively use as a trade-mark or trade name in the sale of such goods. The mere circumstance that for a period of time Fisher obligated himself to produce his cartoons exclusively for the plaintiff no more deprived him of the exclusive right to use the trade-mark or trade name of his productions than would a manufacturer of goods known by a trade name be deprived of the exclusive right to such trade name, because he had agreed for a definite time to manufac- ture them exclusively for a given firm. Of course, during the time when Fisher was obliged to furnish his cartoons exclusively to the plaintiff, the latter had the exclusive right to the use of the trade name which went witli tlio exclusive right to all of Fisher's output; but when the contract terminated Fisher was at liberty to sell this outjHit to whomsoever he wished. I'lu; law of the ca-se is so well con- sidered in Hanover Milling Co. v. Metcalf, 240 U. S. 403 et seq. that citation of further authori- ties would be superfluous. In the opinion of the court the plaintiff is not entitled to the use of the trade name 6r trade- mark "Mutt and Jeff," the right thereto being now vested in the Wheeler Syndicate under its sub- sisting contract with Fisher, sub- ject to such rights, if any, re- served therein to Fisher. There must be a decree in favor of de- fendant. Fisher v. Star Co. For the reasons stated in the opinion filed in Star Co. v. Wheeler Syn- dicate, a decree will be entered in favor of plaintiff. Wheeler Syndicate v. Star Co. Upon the opinion filed this day in Star Co. V. Wheeler Syndicate, a decree will be entered in favor of plaintiff." See also opinion of Weeks, J., in denying the motion for an in- junction pendente made by the Star Company in its action against the Wheeler Syndicate, reported in (1915), <)1 Misc. (N. Y.) 040. t^ee also: idea id f v. New York Herald {m)i\), MO Fed. {C. C.) 205. "The contention of com- j)lainant is that it is unfair com- petition in trade for any one else 1(» draw or offer for sale any other pictures in wliich, although the TRADE-MARK IN TITI.K OF TARTOOV put out by tho cartoonist who was tlic pnjprictor of flio title. '^° scenes and incidents are different, some of the cliiiractcrs are iiiii- tjitioiis of those which upix'arcnl in the earlier pictures which com- l)lainant sold to defendant. In other words, that dep<3nent. al- thou^li lie never copyrighted thcin and did not acquire any right to the title in connection with newspa|)er publication, has, nevertheless, some common-law title to individual figures therein displayed, which he can maintain to tlie exclusion of others, who depict them in other scenes and situations. It is sufficient to .say that no authority is cited sup- jiorting this i)roposition, which .seems entirely novel and does not commend itself as sound." See also: AVic York Ilerakl v. Star Co. (1906), 146 Fed. (C. C.) 204; aff'd 146 Fed. (C. C. A.) 1023. Tem|)orary injunction wa.s issued enjoining defendant from using title "Buster Brown" in such a manner a.s to lead the pul)lic to believe that it contem- plated the puitlication of a comii; section under that title. See also: X. Y. Herald v. OtUum Citizen (Can.), 41 Can. S. C. R. 22!). ]{egist ration of a title "Buster Brown" for the comic section of a newspaper was held invalid. '♦" Fislicr v. Sl(ir Compani/ (1917), N. Y. Law Journal, Jan. 20. " The only question reserved by the court for determination was whether the defendant is to l>e enjoined from liereAfter publishing cartoons drawn in imitation of Mr. Fisher's creations, "Mutt and JefT." It seems to me that, viewing this (juestion from a stand|xjint of unfair competition, there should be but one answer thereto, and that is that the pub- lication of such cartoons would be calculated to deceive the public into believing that they were the genuine productions of Mr. Fisher. The cases that recognize these principles as applied to ordinary merchandi.se are fully stated in such cases as Hanover Milling Co. v. Melcalf, 240 U. S. 40.3; E. P. DiUlon A Co. v. Cup- 7>/<.s, 117 .\pp. Div. 172, and Yak ct- Toirne Mfg. Co. v. .{dler, 154 Fed. Rep. 37. I can find no dilTerence in principle betw(M'n that class of ca.ses and the one under review excepting that it is here sought to protect an in- dividual j)ossessed of sjM'cial skill in the production of cartoons of 476 THE LAW OF MOTION PICTURES his own creation. My attention has been called to the opinion written by the examiner of inter- ferences upon an application of the defendant for cancellation of the trade-mark "Mutt and Jeff" registered by the plaintiff Fisher as a trade-mark for a series of car- toons. The examiner refers to recent works on trade-marks in which the distinction is observed between a personal and imper- sonal trade-mark. Special refer- ence is made to Paul on Trade- Marks and the English work of Sebastian (4th ed., p. 100), con- cerning which the examiner states that a "personal trade- mark is discussed at some length with the citation of authorities and is referred to as a mark which benefits the article to which it is attached with the personal skill or supervision of an individ- ual." I can see no reason on prin- ciple why such a trade-mark should not be recognized as the property of Fisher in this case. In passing upon the voluminous findings submitted by the de- fendant I desire to observe that because reference is made to certain copyrights in the plain- tiff's findings there is no implica- tion that this court is disposing of this case upon the theory that a copyright is involved. The facts with reference to the copyright are merely incidental in the determination of the ulti- mate questions presented." CHAPTER XI UNFAIR COMPETITION (CONTINUED) Miscellaneous Matters Sec. 132. Right to u.se or lus.sign one's own uume. 133. Limitations on u.se — price fixing. 1.34. Restraint of trade. Section 132. — The right to use or assign one's own name. It is well settled that every individual has a riglit to use his own name in connection with his business. He may not, however, use the name in a manner so as to lead the public .to believe that his goods are those of some person l)caring the same name.' While many forms of business enterprises are con- H'remn Co. v. KelU-r (ISOS), 85 Fed. (C. C.) 643; CImpman v. Waterman (1917), N. Y. Api). Div., N. Y. Law Journal, Apr. 4; Rogers v. Rogers (1895), 70 Fed. (C. C. A.) 1017; Devlin v. Dci-lin (1877), 69 N. Y. 212; Frazer v. Frazer (1887), 121 111. 147; 13 N. E. 6.39; Lamlrclh v. Landreth (1884), 22 P^ed. (C. C.) 41. Howard v. LokU, Michigan Circuit Ct., Wayne County, Feb. 24, 1916. Trade-Mark Reporter, Vol. 6, p. 229. Plaintiff \va.s grantwl an injunction re.-^training the use of the word "Mercedes" as the title of a vaudeville act u|X)n the ground that plaintiff had first used tliat title with re- s|)ect to a vaudeville act. The injunction wjus granted notwith- standing that one of the defcnil- ant's middle name was Mercedes antl that the act was named after such defendant. :/ / 478 THE LAW OF MOTION PICTURES stantly changing hands under their original names, it is well to bear in mind that there are limitations upon this right which are peculiarly applicable to the motion pic- ture industry. Some of the foremost companies in the industry have adopted as the corporate title the name of some prom- inent director or producer whose work is devoted to the productions of that company. Should the company later dispense with the services of that particular individ- ual, or should the original interests attempt to withdraw or sell out, the question arises, how far may this be legally done? It has been held that where the value of a trade name is dependent upon the personal reputation, skill, experi- ence of and is indissolubly connected or associated with the owner, it cannot be assigned, for that would efifect a fraud upon the public.^ This rule has been applied to "^ Messer \. The Fadettes (1897), not assignable. . . . The case 168 Mass. 140; 46 N. E. 407. is not like those in which there is The leader of an orchestra at- a sale f)f fixed property and a tempted to sell all her right, title local business to which the name ;ind interest in and to a musical belongs and whose principal fea- organization or orchestra together tures remain unchanged after with the name by which it was the sale. If the use by the i)lain- designated, the "Fadette Ladies tiff of the name 'Fadette Ladies Orchestra." Said the coiu't: "So Orchestra' would have any in- far as lOthel Atwood (the assignor) fluence beneficial to herself upon li.id any right or ownership in the public who wished to procure the trad('-nam(! which designated the services of such an organiza- the organization under her man- tion, it would be only to misl(>ad agemcnt, it was j)ersonal to her- and defraud them by implying .s(;lf, (l(!pending upon her personal that .she and such mu.sicians as reputation and skill, and it was she employed were the same jxjr- THE UHill'l' TO ISK OH ASSIGN ONK's OWN NAME 471) artists, authors, musicians, and lawyers; and they will ncjl he permitted to assign to others the use of their own names. -^ That limitation exists even where a corporation sons \vlii» liad formerly gained a Rood reputation under tliis niune. It is well settled that the eourts will not enforce a claim of this kind, which contains a misrei>- rasentation to the public." llc'itnian v. Ihcjvmnn (ISSO), 8 Daly (N. Y.), 1, holds certain kinds of names non-assignable. "When, however, the whole pe- cuniary value of a name ... is tlcrivcd solely fnjin the personal qualities of the one to whom the name belongs, such as his .skill, sjx*cial knowledge and exiK'rience, or from the fact that the article is produced under his personal sujK'rvisicai, which imparts to it a siKH'ial value, then the right to the name is not transmissible." Lcal/ur Cloth Co. v. Am. lAoilur a. Co. (Eng.), 11 II. L. Cas. 523; Kidd V. Johmun (1S71)), 100 U. S. 017; Dixon Crucible Co. v. Gufj- gaihcim, 2 Brewster, '.V2l. Hughes V. Slalhain (l-^ng.) (1825), 4 Barnewell & Cres.swell, 187. An agretMiient between two attorneys whicli iHovidcd for the transfer of the business besides the use of the name was held invalid in so far as the name was concerned. Sec also: Dean V. Emerson (1809), 102 Mass. 480; Iloxie v. C honey (1887), 143 Mass. 592; 10 N. E. 713. In re Swczey (1881), 62 Howard's Pr. (N. Y.) 215; Skinner v. Oake^'i (1881), 10 Mo. App. 45. ' Blakely v. Sowia (1900), 197 Pa. 305; 47 Atl. 286. Plaintiff's intestate had contracted with defendant, the leader of a band, whereby he was to act in the general capacity of a business manager. Four years later plain- tiff died. Held that there was the rela- tion of employer and employe, which terminated at death. That each party relieil to a great extent upon the purely |)ei-sonal cjuali- tications of the other, and for that reason the contract was not a.ssignlble, even though the plain- tilT's intestate had been given the right to a.s.sign the contract to a cor|M)ration. Hi Id also that one could not assign to another the use of his oirn name, as that was contrary to public |x)licy, in the case of an artist, an author, musician or lawver, as the value of such a 480 THE LAW OF MOTION PICTURES has been formed to take over the use of the name, for even in that case assignability is not permitted."^ In New York, a defendant who, as executor, had ac- quired the right to the use of a surname which was the same as his own, conveyed the business together with the trade name to another. He, thereafter in his indi- vidual capacity, attempted to grant to a third party the right to the use of his own name in connection with a sim- ilar business. The court enjoined him.^ name was entirely dependent upon the personal reputation, skill, experience and indissolubly connected or associated with the owner. But this rule was not followed in the older New York cases. See: Christy v. Murphy (1856), 12 How, Pr. (N. Y.) 77. See also: Booth v. Jarrett (1876), 52 How. 169. Lessor's name was on theatre ("Booth's Theatre"); lessee was held entitled to use name on theatre since the name was identified with the goods sold — the theatre. •' 'Blakely v. Sousa (1900), 197 Pa. 305; 47 Atl. 286. Skinner v. Oaken (1881), 10 Mo. App. 45. "We think the answer to this cjucstion depends upon the effect which the use of the name in each particular instance is shown to have upon the minds of the public. If it leads the public to beUeve the particular goods are in fact made by the person whose name is thus stamped upon them, or in whose name they are advertised, where- as they are in fact made by an- other person, then such a use of the name will not be protected by the courts, for to do so would be to protect the perpetration of a fraud upon the i)eople. See also: Oakes v. Tonsinierre (1883), 49 Fed. (C. C.) 447. ^Burrow v. Marceau (1908), 124 A. D. (N. Y.) 665; 109 N. Y. Supp. 105. "Each case must depend upon its own facts, but where it ♦is clearly established that an attempt is being made l)y one person to got the business of another by any means that in- volves fraud or deceit, a court of ('(juity will protect the honest trader and ri'strain adishonost one from carrying out his s(;heme." LIMITATIONS ON USE — PRICE FIXING 481 Section 133. — Limitations on use — price fixing. The fundamental distinction between the rights de- rived under the copyright and patent hiws is that in the former there is granted the exclusive right to print, i)ub- lish and vend/' while in the latter the exclusive right is given to make, itse or vend the patented article. In other words, the right granted under the i)atent law which is not given to the co])yright proprietor is the sole right to use.^ This means, in efTcct, that the owner of a patent may attach any and all conditions with respect to the use of his i)atented article, and those conditions are binding upon ail persons into whose possession the patented article may come. This is a right irrespective of any contract, and attaches to the patented commodity in a manner which may best be described as a "covenant running with the land." ^ In copyright, on the other hand, the sole right to use is not granted to the proprietor of the work. Hence, any limitation in the use of the work, must be sought for in some contract, and only parties privy to the contract are bound by such limitations. The "vending" rights in both patent and copyright Kurtzmann v. Kurtzmann * Section one of the Copyright (1914), S4 Misc. (X. Y.) 47S; 117 .Vet of 1<)09. N. Y. Supp. 673. The use nf • Sort ion 1)42.S of the Coni- one's own name may in certain piled Statutes lOU), p. 10031. cases be restrained. * Hhomer v. McQuewan (1852), Soo also: Ifomeikr v. Ifornrikr, 11 How. 545); }fitrh€U v. Ilnirley Trade-Mark Rep. (1917), Vol. 7. (1.S72), 10 Wallace, 544; Adanwi p. 360. V. Burke (1873), 17 Wallace, 453. 482 THE L.\W OF MOTION PICTURES are identical. In neither case may the proprietor restrict the selUng price of the article of one who is not a party to a contract with him. This distinction is emphasized clearly in the "Sana- togen" case.^ The restriction placed upon each package was in the form of a notice reading as follows: "Notice to the Retailer ''This size package df Sanatogen is licensed by us for sale and use at a price not less than One dollar ($1.00). Any sale in violation of this condition, or use when so sold, will constitute an infringement of our patent No. 601,995, under which Sanatogen is manufactured, and all persons so selling or using packages or contents will be liable to injunction and damages." "A purchase is an acceptance of this condition. All rights revert to the undersigned in the event of violation. "The Bauer Chemical Co." The court held that this limitation placed upon the patented article was not with respect to its use, but re- lated to its sale merely, and, as such, was unenforcible in the absence of any special contract between the parties to the action. The court aptly states its position: "The real (jucstion is whether in the exclusive right secured by statute to 'vend' a patented article, there is included the right, by notice, to dictate the price at which subsequent sales of the article may be made. The patentee relies solely upon the notice (|Uoted to control future prices in the » Bauer v. O'Donnell (1913), 229 U. S. 1; ;W Sup. Ct. GIG. IJMITATIONS ON USE — I'HICK FIXIN<; IS.'i resale by ii j)un'lui.s('r of an article said lo be of ^reat utility iuui hi^lily clesiral)le for general use. The appellee and the jobbers from whom he purchased were neither the agents nor the licensees of the patentee. They liad the title to, and the right to sell, the article purchased without accounting for the proceeds to the patentee, and without making any further payment than had already been made in the i)urchase from the agent of the patentee. Upon such facts as are now presented we think the right to vend secured in the patent statute is not distinguishable from tlie right of vending given under the Copyright Act. In both instances it was the intention of Congress to secure an exclusive right to sell, and there is no grant of a privilege to keep up prices, and prevent competition by notices restricting the price at which the article may be resold. The right to vend conferred by the patent law has been exercised, and the added restriction is beyond the protection and purpose of the act." This rule was even more forcibly reiterated in the recent case of Straus v. Victor.^" There the Victor Company ^^ Slraiui V. \'ictor, V. S. Sii- tlic pliiiiitifT informed jus to the preine (-ourt, tieciiled April '.t, coiulition or use of the insichinc, 1917. "It thus becomes dear for no re|x)rt of any eharaeter that this 'License Notice,' is not is re(iuir('(l from the 'ultimate inten(l(>(i jis a security for any user' alter he luus paid the stipu- further i)ayment upon the ma- lated price; that, notwithstandinj; chine, for the full pric(>, calli'tl a its apparently studied avoidance 'royalty,' was paid before the of the use of the \V(jrd 'sale' plaintitT parted with the |)()ss('s- and its frequent reference U) the sion of it; that it is not t(t he usimI word 'use,' the most obvious a.s a basis for tracing and keeping reeiuirements for securing a bona 484 THE LAW OF MOTION PICTURES by means of a complicated license notice attached to its talking machines, ostensibly sought to restrict the use of the machine. One of the conditions attached thereto was that the "royalty" to be paid for the ''use" of the machine was not to be less than the amount specified upon the notice. The court, brushing aside the other conditions imposed by this license notice, found that the sole and real purpose of the notice was to restrict the price at which the machine could be sold after the plaintiff had been paid in full for it, and re-affirmed Bauer v. O'Donnell. The courts have even placed limitations upon the extent to which the exclusive right to use the article may be applied by the" patentee. Until recently, the rule was that the proprietor of the patent had the right to place any restrictions he deemed proper upon the use of his patent. In the "Mimeograph" case ^' it was held proper for the patentee to control the use of his article by impos- ing a condition that the machine was to be used only with the supplies made by the patentee. fide enforcement of the restric- for this 'License Notice' so far tions of the notice tis to 'use* as we can discover, the function are omitted; and tliat, even by only, of fixing and maintaining!; its own terms, the title to the; the price of plaintiff's machines machines ultimately vests in tlic^ to its agents and to tlu; public, 'ultimate users,' without further and this we cannot doubt is the ])aym('nt or action on their part, purpose for which it really was except patiently waiting for pat- designed." cnts to expire on inventions, ^^ Ilcnii/ v. .1. Ji. Dick Co. which, HO far as this notice shows, (1911), 224 U. S. 1; 32 Sup. Ct. may or may not be inc()riK)rated 304. in the machine. There remains LIMITATIONS ON V9>E — PRICE FIXINO 485 That decision, liDWcxcr, was ovorrulcd in the (.-ase of Motion Picture Patent Co. v. Universal Film Mfg. Co.^- In this case, the ])laintifT, the owner of a patent for a motion picture projectinfz; machine, attempted to impose a restriction upon tlie use of the machine to the effect that such machine was to be used solely for exhibiting or pro- jectinji; motion picture films containing the inventions of certain letters jjatent, such films being controlled by a licensee of the plaintiff. Subsecjuently to the expiration of the patents upon the film, the j)laintiff sought to restrain one of the defendants from using any film in its projecting machine other than the film of plaintiff's licensee. It contended that the use of such other film constituted an infringement of its patent in the projecting machine. Mr. Justice Clarke, writing for the court, held that such a restriction was invalid; that it was an attempt without statutory warrant, to continue the patent monop- oly in the film of ])laintiff's licensee after such i)atent had expired; that "to enforce it would be to create a monopoly in the manufacture and use of moving picture films wholly outside of the patent in suit and of the patent law." The court said, ''The exclusive right granted in every patent must be limited to the invention described in the claims of the i)atent, and that it is not competent for the owner of a patent by notice attached to its machine to, in effect, extend the scope of its patent monopoly by restricting the use of it to materials neces- '• Motion Picture Pntcntu Co. Sec also: Unipcrsnl Film Co. v. V. Unii'vrsdl Film, \' . S. Sup. CopjHrman (1914), 21S ImhI, Court, (Irculod .\pril •), I'.UT. (C. C. A.) 577. 486 THE LAW OF MOTION PICTURES sary in its operation, but which are no part of the pat- ented invention." The court also held that any provision in the license notice to the effect that the proprietor of the patent shall have the right to impose any new conditions upon the use of the patented article from time to time was invalid. It is easy to understand why the court has reversed itself, and has taken the position declared in the "Motion Picture Patents Case'' when we consider the primary purpose of the patent laws. In the words of the court: ''Since Pennock v. Dialogue, 2 Pet. 1, was decided in 1829, this court has consistently held that the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents, but is to promote the progress of science and the useful arts." (Constitution, Art. 1, Sec. 8.) In the Bobbs-Merrill v. Strauss case ^^ the court clearly '^ Bobbs-Merrill Co. v. Strauss 120 Fed. (C. C. A.) 631; Bobbs- (1908), 210 U. S. 339; 28 Sup. Merrill Co. v. Snellenburg (1904), Ct. 722; Scribner v. Strauss 131 Fed. (C. C.) 530; DoM v. (1908),210U. S. 352;28Sup. Ct. Smith (1891), 144 Pa. St. 340; 735. 22 Atl. 710; Authors' & News- See: Hammond Pvblishing Co. papers' Assn. v. O'Gorman Co. V. Smythe (1886), 27 Fed. (C. C.) (1906), 147 Fed. (('. C.) 016. 914; Harrison v. Muynard-Mcrrill Harrison v. Mayiianl, Merrill & Co. (1894), 61 Fed. (C. C. A.) Co. (1894), 61 Fed. (C. C. A.) 689. 689; Clemens v. Estes (1885), "... The copy having boon 22 VqxI. (C. C) 89Q; Werckmeister absolutely sold to liiiu, the or- V. Am. Lithographic Co. (1904), dinary iiicidoiits of owiuMsliip in 134 Fed. ((". C A.) 321; Doan persoiiul property, aiuoiii; wliicli V. Am. Book Co. (1901), 105 is the rifiht of alienation, attach Fed. (C;. ('. A.) 772; Kipling v. to it. If he has agreed that he G. P. Pulruim's Sons (1903), will not sell it for certain purposes RESTRAINT OF TRADE 4X7 defined its position with respect to the rij^ht to hniit tlic price at which a copyrighted work could be re-sold. The court held that unless there was a contract, and the parties to the suit were privy to it, an attempted restric- tion upon the price of a copyrighted work was uneiiforci- ble, and that the sole right to vend under the copyright statute did not permit the holder of a copyright to fasten by notice in a book or upon one of the articles mentioned within the statute, a restriction upon the subseciuent alienation of the subject matter of copyright after the owner had parted with the title to one who had ac(juired full domhiion over it, and had given a satisfactory price for it. The court stated its position in the following language: "In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold, at retail, by future pur- chasers, with whom there is no privity of contract." Section 134. — Restraint of trade. In the year 1*JU8, the motion jMcture business had reached a point where it was regarded as one of the lead- ing industries of the country. At that time there were two aggregations of manufacturers, competing with each other. One group controlled the patents j)ertaining to the various parts of the canicra us(>(l in the taking of pictures. The other group was in control of divers patents in connection with the machine, whereby the picture was projected upon the screen. At the close of 488 THE LAW OF MOTION PICTURES that year, finding competition and litigation between them ruinous, they combined by pooling their patents, and formed the Motion Picture Patents Co., with a subsidiary distributing company, the General Film Com- pany. ''The plan . . . was first to combine the defendants, who were manufacturers and importers of films, in an agreement to act as one man might have acted. Lists of exchanges and of theatres were prepared, and no ex- change was permitted to have films, and no theatre to exhibit them, unless with the consent of all the defendants. The names of none appeared upon this list except such as bought all supplies from the defendants, and any who dealt otherwise were dropped. Every theatre was re- quired to pay a royalty for the use of a projecting machine, even when the machine had been owned by the exhibitor before the combination was formed. The films passed into the possession of exchanges and exhibitors under an agreement which enabled the defendants to recall them at will." '' or to certain persons and violates analogy to those of a copyright his agreement, and sells to an ownc^r. innocent purchaser, he can i)e '^ United Stntea v. Motion Pic- punished f(jr a violation of his tiire Patents Co. (191.')), 225 Fed. agreement, but neither is guilty (D. C.) 800. Dickinson, J.: under the copyright statutes of "... It is evident that who- an infringement." ever controls the films referred Copyright and patent statutes to controls the motion-i)icturo differ in tin; extent of protection business, but the point with which granted by such statutes. Hence we are now concerned is that the rights of a patent owner are trade in these films is within the not necessarily to be applied by statute. . . ." RESTRAINT OF TRADE 480 Tho methods of the rombination were so thorougli and olTectivo that at the time the government tried its And in arriving at its conclu- sion, after cleciding timt films were articles of commerce and a.s such within the statute, the court said: "We are constrained, however, to find that there was no such relation, hut that the end, directly proposed, was the imposition upon the trade of an undue and unreasonal)le restraint, in order that as the immediate and direct elTect and result of the combina- tion, the defendants might mo- nopolize the trade in all the ac- cessories of the motion picture art so far as they are articles of commerce. A further end pro- posed, and which has larf^ely been acliieved, is the domination of the motion picture business itself, and it requires no prophetic vision to foresee that the ultimate result wouKl be that no play would be written or dramatically enacted, except by autliors and artists favored by the ilefend- ants." An earlier case, decided in the United States Supreme Court in which various owners of pat- ents had i)()ol('d their patents and had therel)y ciTected a com- bination in violation of the Sherman Law is the case of Stdndan! Sanitary Co. v. U. S., commoidy referred to as the "Bathtub" case (1912), 22G U. S. 20; 33 Sup. Ct. 9. See also- A''. Y. Motion Picture Co. V. Universal Film (1912), 77 Misc. (N. Y.) 581 ; 137 X. Y. Supp. 278; Metropolitan Opera Co. v. Hammer.^tein (1914), 162 A. D. (N. Y.) 691; 147 \. Y. Supp. 5:32; People V. Klaw (HK)7), 5o Mi.sc. (X. Y.) 72; 106 X. Y. Supp. 341; Matter of Jackson (1907), 57 Misc. (X. Y.) 1 ; 107 X. Y. Supp. 799. For a case where various own- ers of copyrights pooled their respective copyrights and thereby effectuated a combination which tended to create a monopoly in violation of statute, see Strau.'i V. .4m. Pub. Ass'n (1913), 231 U. S. 222; 34 Sup. Ct. 84. "So, in the present case, it cannot be successfully contended that the monopoly of a copy- right is in this resjx^ct any more extensive than that securetl under the patent law. Xo more than the patent statute was tlie Copy- right Act intended to authorize agreements in unlawful restraint of trade and tending to monofv oly in violation of the specilic 490 THE LAW OF MOTION PICTURES suit to dissolve the combination (Oct. 1, 1915) out of one hundred and sixteen independent manufacturers, there was but one solitary survivor. Fortunately, for the business and for the public as well, the combination was dissolved under the "Sherman Anti-Trust Law." '•' Although this decision has had an enormous beneficial effect in re\dvifying and stimulating the industry to a more active and higher-class standard of production, we beheve that it has resulted in a great waste of money. Each group of manufacturers has attempted to conduct its business independently of the others, and to that end numerous and vast chains of distributing centres have been formed. These are unnecessary, and might well be eliminated. The inevitable trend of the industry is to recombine as formerly, not, however, for the purpose of restraining trade and destroying competition, but with the object of effecting greater efficiency and economy by doing away with so many exchanges, and distributing through a common source. terms of the Sherman Law, which '* For a history of the litiga- is broadly designed to reacli all tion leading up to the formation combinations in unlawful ro- of the combination, see: Edison straitit of trade and tending v. Am. Mutoscope (1902), 114 because of the agreements or Fed. (C. C. A.) 926; I'Jdison v. combinations entered into to Am. Mutoscope (1907), l.'il Fed. build up and to perpetuate (C. C. A.) 767; Greater N. Y. monopolies." See also: Mines Film Rcninl Co. v. liioqraph, U. V. Scrilmer (1906), 147 Fed. S. Dist. Court, S. 1). N. Y., .luly (C. C.) 927. 12, 1912, reversed 20:} Fed. ;39. CHAPTER XTI COPYRIGHT In General Sec. 135. Common-law riglits. l.iO. What is secured by copyright. 137. How copyriiiilit is secured. 138. Publication. 139. Notice of copyright. 140. Licensee's failure to in.sert notice. 141. False notice of copyright. 142. Title— Changing: title. 143. Who may .secure copyright. 144. Belligerent aliens. 145. In what name copyright may be taken out. 146. Subjects of copyriglit -in general. 147. Immoral and seditious works. 148. Gags, stage business, contrivances, carttK)ns, ativertise- ments. 14<>. Burles(iues, parodies, inferior copies. 150. Copyrighting revised edition of work. 151. Works in public domain. 152. Comjjonent parts. 153. Term of copyright. 154. Renewal of copyright. 155. ;\.ssignment of cojjyriglit. 156. Difference between a.s.signment and license. Section 135. — Common-law rights. The author <>f a work is not hound to copyrifilit it, 491 492 THE LAW OF MOTION PICTURES in this country, in order to protect it. He has a common- law right ^ which in many ways resembles copyright, and ^Palmer v. De Witt (1872), 47 N. Y. 532. "An author or proprietor of an unpublished literary work has then a property in such work, recognized and pro- tected both here and in England, and the use and enjoyment of it is secured to him as a right. This property in a manuscript is not distinguishable from any other personal property. It is governed by the same rules of transfer and succession, and is protected by the same process, and has the benefit of all the remedies accorded to other prop- erty so far as applicat)lc." See also the other two leading cases in this country on common- law rights: Totnpkins v. Ilallock (1882), 133 Mass. 32; Carter v. Bailey (1874), 64 Me. 4.58. See also: Aronson v. Flecken- stein (1886), 28 Fed. (C. C.) 7.5; Boucicaull v. Fox (1862), .5 Blatch. (C. C.) 87; Banker v. Caldwell (1859), 3 Minn. 46; Oertcl V. Wood (1870), 40 How. Pr. (N. Y.) 10; Shook V. Daly (1875), 49 How. Pr. (N. Y.) 306; Fretick V. McGuire (1878), 55 How. Pr. (N. Y.) 471; Shook v. Rankin (1875), 6 Biss. (C. C.) 477; Bou- cicaull V. Wood (1867), 2 Biss. (C. C.) 34; Croupe v. Aiken (1870), 2 Biss. (C. C.) 208; Boucicault V. Hart (1875), 13 Blatch. (C. C.) 47; Fed. Cas. No. 1692; Parton v. Prang (1872), 3 Chff. (C. C.) 537. For English cases see: Soidhey V. Sherwood (Eng.) (1817), 2 Mer. 435; Tonson v. Collins (Eng.), 1 W. Bl. 301; Jeffries v. Boosey (Eng.) (1854), 4 H. L. Cas. 815; 3 C. L. R. 625; 24 L. J. Ex. 81; Prince Albert v. Strange (Eng.) (1849), 1 Mac. & G. 25; 1 H. & T. 1; 18 L. J. Ch. 120; 13 Jur. 109; Queensherry v. Shebbcare (Eng.) (1758), 2 Eden, 329; Man- sell V. Valley Printing Co. (Eng.) (1908), L. R. 2Ch. 441; 77 L. J. Ch. 742; 99 L. T. 464; 28 T. L. R. 802. As to wheOier copyright is con- sidered personal property see: La- totir V. Bland (Eng.) (1818), 2 Stark, 382; Palmer v. De Witt (1872), 47 N. Y. .5.32. As to whether common-law rights in an unptddished manuscript may be acquired l)y adverse pos- session see: O'Neill v. General Film Company (1916), 171 A. D. (N. Y.) 8.54; 1.57 N. Y. Supp. 1028; modifying 152 N. Y. Supp. COMMON-LAW mcJHTS 49.'i wliicli iio may enforce in tlie state courts- or in the Federal courts, if other jurisdictional elements are present.-^ Those rights are not lost by the sale of the manuscript, l)ut on the contrary pass to the purchaser, who may in turn sell the manuscript and thus convey the rights to the new purchaser. Where the owner of the manuscript dies, the common-law rights in it pass to liis next of kin or legatee, and tlie rights continue indefinitely until they are lost by publication or copyright.' This is well illustrated in O'Neill v. General Film Com- pnnyj' where the action was brought for an injunction and an accounting l)y reason of defendants' infringement of plaintiff's unpublished manuscript of a play entitled "Count of Monte Cristo." The court found that one Charles Fechter made a dramatic version of the novel of that title prior to the year 1883; that in that year one John Stetson, the proprietor of a theatre in Boston was the owner of the Fechter version manuscript; that in 1885 the said John Stetson sold tlie manuscript to the plaintiff 599. See also Hart v. Foz i^ee aUo: Lytton \. Dcrcy (Eng.) (1917), N. V. L:i\v Journal, (ISSD.iViL.T. 121. The perse mill August 24. represeuUitives of Ji tlecedcut '^Palmer v. l)e Wilt (1S72), prevented the publication of the 47 N. Y. 'hi'2; T(>ini)kiits v. II(i(- tlocedent's letters. Maanillan lock (1SS2), KW Mjuss. :i2; Curler Co. v. Dad [Kng.) (1!K)()), 1 Ch. V. BniUy (1S74), 04 Me. 45S. 101 (Times, Nov. 8); 23 T. L. R. ^ Press Publ. Co. v. Monroe 4.'); Philip v. Penndl (Kng.) (1S9()), 73 Fed. (C. C. A.) (1907), L. R. 2 Ch. 577; 76 L. J. 196. Ch. ^i; 97 L. T. :3S0; 23 T. L. « While V. Cfcroch (Enp;.) (1S19), R. 71.S. 22 R. R. 786; 2 B. & Aid. 298; 1 '•(rXcill v. C.cncral Film Co. Chit. 24; Palmer v. Dc Witt {V.m), 171 .\. I). (X. Y^ ^"' (1872),47N. Y. 532. l.">7 X. Y. Supp. lOJs. 494 THE LAW OF MOTION PICTURES in the action who, since that time had been in "continuous uninterrupted open possession of the said play." Indeed the court found it so difficult to prove a chain of title that judgment for plaintiff was really given upon the theory of adverse possession. An injunction was granted en- joining the exhibition of defendants' infringing motion picture. Common-law rights obtained in England as well as in this country prior to 1911 when they were altogether abrogated in England, and the author was thenceforth bound to look for protection only to the Copyright Stat- ute. In the United States, however, there has been no change in the common-law rule, and common-law rights are still recognized and protected.*^ The present copyright statute expressly provides that nothing in the Act shall be construed to annul or limit the right of an author or proprietor of an unpublished work, at common law or in equity, to prevent infringements thereof.^ Under the common law the author has the exclusive right to perform his unpublished dramatic composition; and as long as the work remains unpublished he may enjoin anyone from infringing upon that right.** He also has the right to a first publication. But by publication he loses all his common-law rights. "As author of the work . . . the literary property '^Palmer v. DeWUt (1872), ^ Copyright Act of 1909— Scc- 47 N. Y. ').i'2; Tompkins v. Ilalloch tion two. (1HH2), i;« Mass. :i2; Carter v. '' Pnlmvr v. DeWilt (1872), Hailcii (1874), (54 Mo. 458; Press 47 N. Y. :V,12; Tompkins v. Ilnl- Pub. Co. V. Monroe (1896), T.i lock (1882), ViS Mass. 32; Carter . Fed. (C. C. A.) 196. v. Baiky (1874), 64 Me. 458. COMMON-I.AW RIGHTS 49') vested in lior consisted . . . <>1" liic following rights, ])riviloges or powers: Before imblicalion: The sole exclusive interest, use and control. The right to its name, to con- trol or prevent i)ubhcation. The right of private exhibi- tion, for criticism or otherwise, reading, representation and restricted circulation; to copy, and permit others to copy, and to give away a copy; to translate or dramatize the work; to print without pubUcation; to make qualified distribution. The right to make the first pubUcation. The right to sell and assign her interest, either absolutely or conditionally, with or without qualification, limitation or restriction, territorial or otherwise, by oral or written transfer. . . . "After publication: Unrestricted publication without copjTight, is a transfer to the public to do most of the things the author might do, in common with her, except all rights of transfer and sale which remain to the author; but without advantage, since the work has become, by the publication, conunon. property." '■• The exclusi\'e right of nuiltii)lying and vending copies of an intellectual work is of i)urely statutory origin.'" The moment an author multiplies and vends his work he jniblishes the same, and his common-law rights are for- ever gone with pubUcation. ' ' PubUcation, however, with- * Harper v. Donohne (IDOo), S Pet. r)9l. For :i historinil and 144 Fed. (C. C.) 491. irniK)rt!int discu.ssion of coinimm- *'> Donaldson v. Bcckd (EiiR.) law rights and statutory rights (1774), 4 Burr. 2408 (EriBU.sh in Utorarj' proix-rty. It holds House of Lords); Wlicaton v. in t'fTeot tliat i)y publication Peters (1834), 8 IVt. 'A)l. the author loses all his conunon- ^^Whcaton v. Pdcrs (1834), law rights and must thereafter 496 THE LAW OF MOTION PICTURES out the consent of the author does not destroy his com- mon-law rights.^^ In Uke manner the common-law rights are lost when copyright of the work is obtamed.^^ Common-law rights and copyright in the same work are not co-existent. Where one ends the other begins. It is as if the pubUc said to the author, "Give us the benefit of your work, and we will confer an exclusive monopoly upon you with greater rights. In exchange for that, we are to possess it wholly after a definite term." look to the statute alone for protection. See also: Holmes v. Htirst (1899), 174 U. S. 82; 19 Sup. Gt. 606; Burrow-Giles Lithog. Co. v. Sarony (1884), 111 U. S. 53; 4 Sup. Ct. 279; Walker v. Globe Newspaper Co. (1908), 210 U. S. 356; 28 Sup. Ct. 726; Wheaton V. Peters (1834), 8 Pet. 591; Jewelers' Mercantile Agency v. Jewelers (1898), 155 N. Y. 241; 49 N. E. 872; Daly v. Walrntk (1899), 40 A. D. (N. Y.) 220; 57 N. Y. Supp. 1125; Palmer v. De- Witl (1872), 147 N. Y. 532; Recs V. Peltzer (1874), 75 111. 475; Stevens v. Cody (1852), 14 How. 528; Millar v. Taylor (Eng.) (1769), 4 Burr. 2331; Read v. Conquest (Eng.) (1861), 9 C. B. (N. S.) 755; 3 L. T. 888; 9 W. R. 434; liohbs Merrill v. Strams (1906), 147 Fed. (C. C. A.) 15; Caliga v. Inter Ocean Newspaper Co. (1907), 157 Fed. (C. C. A.) 186. ^'Harper v. Donohue (1905), 144 Fed. (C. C.) 491-498. "Pub- lication in a foreign country without the consent of the author is not an abandonment, Bouci- cault V. Wood, 2 Biss. 34, or with- out the consent of the owner of the exclusive right to publish in this country. Goldmark v. Krc- ling (1888), 35 Fed. (C. C.) 661." '^Savage v. Hoffman (1908), 159 Fed. (C. C.) 584; Photo Drama Picture Co., Inc., v. Social Film Co. (1915), 220 Fed. (C. C. A.) 448; West Publisliing Co. v. Thompson (1909), 169 (C. C.) 833; Jewelers' Mercantile Agency v. Jewelers (1898), 155 N. Y. 241; 49 N. E. 872. Sec also cases cited under footnote 11. rOMMON-I.AW I(I<;HTS 497 When Uicre is ii j)ul)licuti()ii of the work and the statutes has not been complied with, the work is forever dedicated to the pubhc." Wliile perfonning rights were not within the provisions of 8 Anne which gave to authors the sole liberty of i)rint- ing their books ^^ the author now has the sole right (jf dramatization in his common-law work. As the per- formance of a i)lay or motion picture is not a "publica- tion" thereof,''' he may produce the same upon the stage or screen and still retain his common-law rights therein. Hence a motion picture may be protected before publica- tion under the common law.'^ It has been held that where on assignment of the pub- lication rights, the performing rights in an unpublished drama have been reserved by an author, the statutory performing rights are vested in him, innnediately upon ^* Koppcl V. Downing (1897), 11 App. Dist. C^)l. 93. Where c'opyriRlit in a i)lay had not been perfected Ity tlie dejXJsit of copies, the hcensee could not at a sul)- sequent date obtain valid copy- right therein, even though his contract witli the proprietor gave him that riglit. Sec also cases cited untler footnotes 11, 12 and 13. ^^ Coleman v. Walhcn (l^ng.), 5 T. R. 245. '* A ronson v. Fleckenstein ( 18.S(i) , 28 Fed. (C. C.) 75. "The law is now too well settled to require the citation of authorities that tlie playing of a dramatic com- position is not such a publica- tion as makes the comjxjsition jmljhc proj)erty. . . ." Sec also: Thomas v. Lennon (1.SS3), 14 Fed. (C. C.) 849; liouriaiuU V. Ilmi (1875), 13 Hlatch. 47; Pnlmir v. DeWitl (1S72), 47 \. V. 532; Macklin v. Richardson (Eng.), Ambler, 694; Morris v. Kelly (Eng.), 1 Jac. it W. 481. " Universal Film v. Copperman (1914), 218 Fed. (C. C. A.) 577. 498 THE LAW OF MOTION PICTURES the publication of the work and the securing of copy- right therein. ^^ In actions for infringement of the common-law rights in a play or motion picture, the complainant is entitled to an injunction and an account of profits/^ and even exemplary damages. ^° ^<' Fitch V. Young (1911), 230 Fed. (D. C.) 743. Complainant's testator, Clyde Fitch, wrote a play he assigned to Macmillan Company. They took out copy- right and published the work. Clyde Fitch reserved the per- forming rights. Thereafter the Macmillan Company assigned the copyright to Clyde Fitch which contained the following clause: "This assignment shall not affect in any way the right of the Macmillan Company to publish the above-described works. The company shall continue to have the sole and exclusive right to publish said works as though this assignment had not been made." The copyright was secured prior to the present statute, and undcT Rev. St. 4952 which did not give the exclusive right to novelize a play to the copyright proprietor. Defendants published a story in its magazine which it is alleged infringes upon complainant's play. The court after holding that the assignment conveyed only the performing rights but reserved the copyright in the Macmillan Company said: Hand, J.: "The right to novel- ize did not, however, exist be- fore the Copyright Act of 1909, and the only basis for suit against a story as piracy which could arise under this copyright would be by virtue of the exclusive right to 'copy' granted by section 4952 of the Revised Statutes, a right which the Macmillan Company, the owner of the copyright, alone has the riglit to invoke;. Any right to novelize the play in such form as does not result in a ^« French v. Kreling (1894), 63 Fed. {C. C.) 621. See also: O'Neill v. (tcnvml Film (1916), 171 A. D. (N. Y.) 854; 157 N. Y. Supp. 1028; modi- fying 152 N. Y. Supp. 599. 2» Prei^H PiMishing Co. v. Mon- roe (1896), 73 Fed. (C. C. A.) 196. WHAT IS SECl'KEl) HY ( Ol'YUKJHT •I'J!) Wlicrc the manuscript is coiiVLTted the phiintilT may ask iv go to the jury on the (juestion of damages, even though the work has no fixed or definite value.-' Section 136. — What is secured by copyright. The copyrighting of a photoplay gives to the copyright 'ropy' is ti riglit in tlio public domain, tind would iiilu-re in tli(! first novclizcr, whether he were Clyde Fitt'h or another; any right so to change the play that a court would still consider it a 'copy' of the play is within the exclusive control of the Mac- inillan Company." -' Toft V. Smith Gray & Co. (1<)12), 7G iMisc. (X. Y.) 2S3; 134 X. Y. Supp. 1011. In an action for the conversion of an unpublished manuscri|)t havin}? only a speculative value, evidence of the nature of the property, whether it can be reproduced, it^s utility to the owner and his estimate of its value, if not other- wise determinal)l(', is comjx'tent u|)on the (juestion of damages. When the value of property, the re|)r()duction of wliich is impos.>rty has no market value, the actual value to the owner is the measure of damages. Leoiwini v. Post (1891), 13 N. Y. Supp. 82.5; Frankenstein v. Thomas (1872), 4 Daly (X. Y.), 2r}6; WaUion v. Cowdrey (1880), 23 Hun (X. Y.), 169. In Hpicer v. Waters (1866), 65 Barb. (X. Y.) 227, it is said: "When the property has no mar- ket value, such as paintings, viamtscripls, etc., the damages are in the discretion of the jur>'. Press Publ. Co. V. Monroe (1896), 73 Fed. (C. C. A.) 196; WoTighted as an unpub- hshed work and the motion picture is a photoplay, copy- right is secured by the deposit in the office of the Register of Copyright with claim of copyright of the title and description of such photoplay, together with one print taken from each scene or act.-^ " Section one, Subd. (a) (h) (d), jihoto-plays"; and class "m," of the Copyright Act of VM). "Motion pictures other than ■' Copyright Act of 1909, Sec- photo-plays." tion eleven. In order to secure registration of claims to copyright for sucii MOTION PICTURES works tiie following steps should he taken in compliance with tlu; DIRECTIONS FOR SECUIUN(; UECIS- . . . ,, . , express provisions ol the Act TUATION UNDER TUE AMEND- .. , Cited. ATORY COPYRKIHT ACT OF AUGUST 24, 1912. MOTION-PICTURE PHOTO- The amendment of the Copy- IM.AYS right Act, approved August 21, 1912, provides for obtaining copy- 1. Motion-picture photo-plays right for two new classes of works, not reproduced in copies for sale. nuiTiely: Deposit in the Copyright Office, Cla.ss "1," "Motion-picture VVa.shiiigton, D. C. now ( OI'VKIOHT IS .SECI'RED 501 2. Wlioro tho motion picture is otlicr than a photoplay and it is sought to coin-rifrlit tlio saiiic as an luipuhhslicd (1) The title of tlic motioii- pictiirc plioto-phiy. (2) A (IcscriptitiM of the work, prefomhiy either printed or ty|)e\vritteii. (.3) A j)hotof?raph tak(>M from each scene of every act. These tlejx)sits should l)e ac- companied by an appHcation for recording tlie chiiin to copy- right. For this purpose use application form 'L 2," wliich will be furnished by the Copy- riRht Office upon retjuest. Also send with the application a jiost office or express money order to pay the statutory registration fee of SI. 00. II. Motion-picture i)hoto- I)lays rcpnulucccl in copies for sale. When tlie motion-picture photo play has been published (i. e., placed on .sale, sold, or publicly distributed) with the re(iuire(l notice of copyright upon each copy, promptly after such pul)li- cation deposit in the Copyright Office two com|)lete copies of the work, accompanied by an application ff)r recording tlie claim to copyright in the pul)- lished work. For this purj».se use application form "L 1," whicii will be furnished by the Copyright Ollice Ujjon retjuest. Also send with the application a post office or express money order to pay the statutory regis- tration fee of S1.()0. MOTION PICTL'RFS OTIiF.ll THAN PHOTO-PLAVS I. Motion pictures other than photo-j)lays not reproduced in copies for .sale. Deposit in the Copyright Of- fice, Washington, D. C. (1) The title of the motion picture. (2) A description of tlie work, preferably either printeil or ty])<'written. (.3) Two or more photographs taken from different section.s of the complete nvitiou picture. These de|K)sits should be ac- companied by an application for recording the claim to copyright. Fitr this i)ur|K)se use apj)lication fonn "M 2," which will be fur- nisiied by the Copyright Office upon HMjuest. .\l.so send with the ajjplication a post office or expre.>Tight regis- tration. Under Section five of the Act the appHcation for regis- tration must specify to which class therein enumerated, the work for wliich copwight is claimed, belongs. When the motion picture is a photoplay the apphcation must be made under group (1) and where it is other than a photoplay, under group (m). The validity of the copyright, however, is not affected because of improper classification -'"' and indeed Section five expressly provides that no error in classification shall invalidate or impair the copyright nor limit the subject matter of copjTight. Section 138. — Publication. Just what constitutes "Publication" with respect to motion pictures has not been defined by the statute, and has not been clearly stated by the courts. Under the Act 27 and under the rules -'' promulgated by the Regis- ter of Coi)}Tights, res]iecting the registration of claims to copyright as pro\i(led by the Act, publication takes place where copies of the first authorized edition are « Green v. Luhij (1900), 177 "Copyright Art of 1909, Sor- Fod. {C. C.) 2S7. "But the fact tion sixty-two. that the skctcli was iinproijerly »» Rules and Regulations of classified as a dramatic comix)si- Copyright Office, Rule twenty- tion in taking out the copyright Gve. would not alTect its validity.'' 504 THE LAW OF MOTION PICTURES placed on sale, sold or publicly distributed by the pro- prietor of the copyright or under his authority. Clearly, when the motion picture is offered for sale outright, the date when it is first so offered is the date of publication.^^ The usual method of procedure, however, is for the producing company to place a number of the positive prints of the film in exchanges, where they are rented to exhibitors at fixed compensation. Title in the prints always remains in the producer or distributor. Any ex- hibitor, upon payment of the stipulated Hcense fee is at hberty to rent the film. In our opinion the offer of the prints by the exchanges to the exhibitors constitutes a pubUcation within the meaning of the act. The date of the first pubhcation is the first day upon which exhibitors may obtain the prints, which is ordi- narily called in the trade the release date. There is good authority to sustain this position. In cases where books containing the ratings of merchants were leased for a stated term to any and all persons who accepted them at the proprietor's terms, and where title ^HJoltsberger v. AUine (1887), The sale of a single copy of the 33 Fed. (C. C.) 381. Where song was held sufficient to con- phiintifT had sold several copies stitute a publication, of his work hefon; ol)taining See also: Pnhncr v. DeWitt copyright, this was a publication, (1872), 47 N. Y. 532; Tompkins and he could not restrain de- v. llalUck (1SK2), 133 Mass. 32; fendants from infringing. Carter v. Bailey (1874), G4 Me. Stern v. Jerome 11. Remick 461. (1910), 175 Fed. (C. C.) 282. PTTnUfATlON :)().': remained as well in the ere there was a i)uhh{'ation.'° *° Jewelers Mercanlilc Agenc]i V. Jeicelers (ISOS), loo \. Y. 241; 49 N. K. 872. If a Ixtok he put within roach of the geiioral public 8() that all may havo across to it, no matter what limitations bo placed upon tho uso of it by the inchviihial subscriiu-r or lessee, it is published, and wliat is known as the common-law coj)yrinht or right of first publication is gone. Lodd V. Oxnard (189G), 7o Fed. (C. C.) 703. Where a book is issued to subscribers thereof and whore there is no limitation upon tho numl)er of persons to whom the book may l)e issued, there is a "publication" although the books are 7wt sold and a number of restrictions are placed upon their use. Ijorrowe-Loisetle v. O'Langhlin (1898), 88 Fed. (C^. C.) 89G. The issuance of a book to all who sul)- scribe for a coui.se of instruction in connection with the l)ook constitutes a publication thereof. For cases where the jdaciiig of a irork in n public office icas held to he a puhlindion , see: Wright V. lusle (l', musical, or dramatic work, the notice must also include the year hi which copyright was secured by publication. Since a motion picture is hot a printed work in the hteral sense that the word printed is used throughout the Act, it would seem that the copjTight notice af- "5a/(A-.s V. Manchester (1888), 128 U. S. 244; 9 Sup. Ct. 36. "It has prcscril^cd such a method, and that method is to be followed. No authority exists for obtain- ing a copyright, beyond the extent to which Congress has autliorized it. A copyright can- not l)e sustained as a right existing at common law; i)ut tu« it exists in the United States, it depends wholly on the Legisla- tion of Congress. . . ." Mijilin y. White, Mifflin v. Dutton (HK)2), 190 U. S. 260- 265; 23 Sup. Ct. 769-771. The statute with res|X)ct to form of copyright notice must be com- plietl with, "in substance at least." Sec Thompsun v. Ilubbiird (1889), 131 U. S. 123; 9 Sup. Ct. 710. Pierce v. Wercknicister (1896), 72 Fed. (C. C. A.) 54. "To secure a statutory copyright under the laws of the U. S., all the pre- scribed reijuisites of the statute must be complied with. Whealon V. Peters, 8 Pet. 591, 6(U; Parkin- son V. Lasclle (1875), 3 Sawy. 330, 332, Fed. Ctus. No. 10,7()2 (C. C); BoiiciaiuU v. Hart (1875), 13 Blatchf. 47, 50, Fed. Cas. No. 1,692 (C. C); Laurence V. Dana (1869), 4 Cliff. 1, 60, Fed. Cas. No. 8, 136 (C. C.)." See ii\so. Jackson v. TKa/lA-ic (1886), 29 Fed. (C. C.) 15; Bluine v. Si>car (1887), 30 Fed. (C. C.) 629. 512 THE LAW OF MOTION PICTURES fixed to published motion pictures does not require the inclusion of the year when first pubhcation took place. The question as to the proper form of notice to be placed on motion pictures, has not yet come before the courts; and in \'iew of the fact that the word printed may be construed as applying to positive films it is advisable to add to the copyright notice the year when first pub- lication took place. Section eighteen also pro\ades that in the case of works specified in subsections (f) to (k) of Section five, the notice may consist of the letter "C," mclosed within a circle, accompanied by the initials, monogram, mark or symbol of the copyright proprietor, providing his name shall appear on some accessible portion of the work. As motion pictures are classified under subsections (1) and (m) of section five, the proprietor of a motion picture may not insert such a form of notice, at any rate, not if his motion picture was copyrighted subsequent to August 24, 1912 when the "Townsend Bill" was approved, pro- viding for the separate copyrighting of motion pictures, and creating two new classes of copyrightable works to wit, "(1) Motion-picture photoplays;" and " (m) Motion- pictures other than photoplays." Prior to that amendment of the Copyright Act, motion lectures were copyrighted as i)hot()graphs, and as photo- graphs were copyrighted under subsection (j) such form of notice was proper. The copyright notice should l)e inserted immediately after the title of the motion picture and should ivdd as follows: NOTICE OF COPYRIGHT 513 "Copyright or Copr. 191- (insert proper yearj hy A. B. (insert proper name)" The notice need not be plaeed upon the copies de- posited with the Register of Copyrights, -^^ but it must appear on all the j)ubHshed coj)ies of the work during tlie full term of the copyright. in a case where the assignee of the copyright had omitted to print it, he was held debarred from enjoining his very assignor for infringement.^^ Its purpose is to inform the public.'" It should above all, be legible/' and its legibility is a question for the jury.''^ ^* Osgood V. .1. .S'. Aloe Instru- vieid Co. (1S97), 83 Fed. (C. C.) 470; Werckmeisler v. Am. Lith. Co. (1905), 142 Fed. (C. C.) 827, lia.s oven gone so far as to hold tluit the notice of copyriglit nocd not he placed upon the original where the same is a painting. " Thompson v. Hubbard (1SS9), 131 U. S. 123; 9 Sup. Vt. 710. "It is not enough that Thompson wliile he owned the copyright gave the reriuired notice in the copies of every edition he pub- lished, while it was his copyright. The inhibition of the statute ex- tended to and operated upon Hubbard while he owncil the copyright in resj)ect to the copies of every edition which he pul>- lished, and for liis failure he i.s debarred from maintaining his action." <» liurrow-Cnle-s Lith. Co. v. Sarotii/ (LS84), 111 U. S. 53; 4 Sup. Ct. 279; Pierce v. Werckmeisler (1896),72Fed. (C. C. A.)M. *' Alfred Decker Co. v. Etchi- son (191.5). 225 Fed. (D. C.) 135. The notice printed on the work wius .so small and blurred that in the language of the court it coulil only lie discovered "with a microscope, by a person skilled in the art." Held that an inno- cent infringer who upon learning that the work was copyrighted iminediatelv cea. Folk V. Shumaclier (1891), 48 Fed. (C. C.) 222. The fol- lowing notice wa.s held to be a substantial compliance with the statute. "1SS!K Cupy righted by />'. ./. F(dk:' SiH> al.so: Record & Guide Co. V. liromlnj (1010), 17') Fed. (C. C.) 1 ')(')• where the notice wius: "Copyrighted 1907 by C. W. Sweet." 516 THE LAW OF MOTION PICTURES tion of the meaning of the notice, reference may be had to that section of the Act which provides that an assignee of a copyi'ight may insert his name in place and stead of that of his assignor. When such substitution takes place, the notice does not imply that the work was copy- righted by the assignee, but it does convey the meaning that the copyright is owned by such assignee. An abbreviation of the date is substantial compHance,''^ likewise of the Christian name."*^ Nor do additional words harm the notice ^^ in every instance. The exact part of the page upon which the notice appears is im- material.''^ -i-. '^Snow V. Mast (1895), 65 Fed. (C. C.) 995. Where the j'ear in a copyright notice is al> breviated to read as follows: '"94" there is a substantial com- pliance with the statute. Bolles V. Outing Co. (1897), 77 Fed. (C. C. A.) 966; aff'd 175 U. S. 262; 20 Sup. Ct. 94. Where the notice of copyright read as follows: "Copyright 93, by Bolles, Brooklyn" it was held sufficient. " Burrow Giles v. Sarony (1883), 17 Fed. (C. C.) 591; aff'd (1884), 111 U. S. 53; 4 Sup. Ct. 279. Where the notice contain.s the initial of the Chris- tian name and the full surname there is a compliance with the statute. *» Hills V. Amtrich (1903), 120 Fed. (C. C.) 862. A notice read- ing: "Copyright 1902, published by Hills & Co., Ltd., Londoit., England," was held a sufficient compliance with the statute. See also: Hills v. Hoover (1905), 136 Fed. (C. C.) 701. Hejel V. White Land Co. (1893), 54 Fed. (C. C.) 179. Where copyright notice contains all the words required by the statute it is sufficient even though ad- ditional words are added. Such additional words arc treated merely as surplusage. The notice here contained the additional words, "Civil En- gineer" i)rintcd immediately after the name of the copyright pro- prietor. '0 Bliimc V. Spear (1.SS7), 30 Fed. (C. C.) 029. Copyriglit SYLTJiiBUS OF CA SE OF gREY EN VELOPE The label afl orlp;lnally ore- sented had G in circle with Initials and date, biat_ without name on another Dart of the'*label. This wsb Insuf- ficient notice of copyright name on package containing the labelled goods. Having uublished thus, refiling with original notice blocked out and nrooer notice including applicant's name sub- stituted does not warrant r* glstration. When applicant published without proper notice he lost right to claim protection under Copyright Act and such right could not be rnvlved by publication with Proper notice. NOTICE OF COP'i'EIGnT 517 The date itself may be in ara))ie or in Roman numerals, as Judge Learned Hand has reeently lield.'" Copyright is not lost where the notice has been omitted by accident or mistake from some of the copies, ^^ or where a change was made therein after the work left the hands of the copyright proprietor. •'- Section twenty provides that: "where the copjTight proprietor has sought to comply with the provisions of was not lost by placing the proper copyright notice below the first page of music. '">Steni V. Remick (1010), 17;') Fed. (C. C.) 282. "Nor do I find any difficulty in deciding that Roman numerals conform to the notice prescribed by the statute. Roman numerals are a part of the language of this country. They are constantly in use upon monumental architecture of all sorts and for serial purpo.ses upon books, and they are a part of the language as taught in the public schools, and understood by all but the most illiterate. Nor can one seriously contend that the notice rccjuircd by the statute would be fuHillcd only by Arabic numerals. If the letters were written out in words, it would certainly be a compliance. I regard the writing of it here in Roman numerals as more nearly a literal compliance with the statute than to write out tlievcar in words." ^'Slecher v. Dunston (1916), 233 Fed. (D. C.) GOl. The omis- sion by accident or mistake of the notice from particular copies does not invalidate the copy- right or pre\'ent a recovery after actual notice of the copyright. See also: Merriam Co. v. United Dictionary Co. (1907), 208 U. S. 260; 28 Sup. Ct. 290; afT'g (1906), 146 Fed. (C. C. A.) 354. The omission of the notice in the Eng- lish edition of an American work which was to be sold only in iMigland did not invalidate the copyright. '■' Fnlk V. Cast, .54 Fed. (C. C. A.)890;afT'g48Fed.262. "If the proper statutory notice of copy- right was upon each copy as it left the control and ownership of the proprietor of the copj'right he cannot be responsible for any changes which were afterwards improvidently made upon a par- ticular copy before it c^xme into the hands of the last purchaser." S 518 THE LAW OF MOTION PICTURES the Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or pre- vent recovery for infringement against any person who, after actual notice of the copyright, begms an under- taking to infringe it." The section further provides that there shall be no recovery of damages against an innocent infringer who has been misled by the omission, and that the court may in its discretion refuse a permanent mjunction against an innocent infringer unless the cop>Tight proprietor shall re- imburse him for his reasonable outlay innocently incurred. But a notice reading "Registered 3,693, 1883" was held insufficient and an abandonment ''^ as were several other notices which showed great discrepancies in the dates ^'^ and in the form of notice generally. ^^ "Higgins v. Keufel (1887), Where at the head of the first 30 Fed. (C. C.) 627; aff'd (1891), column on the first page of read- 140 U. S. 428; 11 Sup. Ct. 731. ing matter the title of a periodical " Record & Guide Co. v. Brom- was inserted, and followed by ley (1910), 175 Fed. (C. C.) 156. two lines in the following manner: ' ' Co pyright hy the Real Estate Record and Huildcr's Ciiidc Co. Vol. LXXV. May 6, 1905. No. 1938, f-^ Lydinrd- Peterson v. Wood- or "coJitenls covered hij copy- man (1913), 204 Fed. (C. C. A.) rights Held non-compliance 921. The notice was ''Copy- with statute. right 1908, Draim bij J. C. Wood- So also whore the notice was many Held, improper. inserted at the foot of each page Record & C, Hide Co. \. Bromley and read: ''The tcrt of these (1910), 175 Fed. (C. C.) 156. pages are copyrighted. All rights Where the notice inserted on the reserved. Notice i.s hereby given front page above the title and that infringement will lead to read: "The entire contents of prosemtion ." Such notice wa.s thin paper covered l>y copyright" invalid. licensee's failure to insert notice ■'>I'.t III Ildds V. Fctsl, the complainant had used liis own name in registering his copyright, but had inscribed upon the work, as part of the notice, a trade-name, the use of which was in violation of the laws of his state. It was held that this invalidated his copyright.^'' Under Section eighteen of the Act,, where copjTight subsisted in a work at the time the present act went into effect, the notice may be in the form ])rescribed l)y that Act or in that prescribed by the Act of June 18, 1874. It would seem under Section nine that the notice of copjTight is required to be affixed only to those copies of the work ''published or offered for sale in the United States." For that reason positive prints made for ship- ment without the United States do not require the notice to be affixed thereon. ^'^'' Section 140. — Licensee's failure to insert notice. ^ The proprietor of the copyright does not lose his rights thereto or dedicate the work where he gives a license such notice was heUl invalid upon it from Mijer.2. TITLE — CHANGING TITLE .521 bearing such iiotic(3 shall be liable to a fine therein speci- fied. Section thirty ])rohibits the importation of any work bearing a false notice of copyright. There must be actual participation in the wrongful act before any liability will accrue.''^ The notice, how- ever, must contain all the necessary^ elements prescribed by the statute for a valid notice,''^ so that if the notice is defective or insufhcient, it may not be said to be a false notice of coi)yright.^/- Section 142.— Title— Changing title. While there is an English case holding that copyright protects the title of a work,^° the great weight of author- ity is just the other way, and the law may be regarded '"^Rigney v. DiUton (1S96), 77 Fed. (C\ C.) 176. In tin action t<) recover a peniilty under the statute for in.^erting a false notice of copyrijj;lit, it wa.s held .sufficient to maintain tlie action to allet!;e that defendants had prepared a cut with the copyright notice in.scril)ed thereon and caused prints from said cut to t)e pub- lished jis part of an advertising page of a traile j>ai)er. /erm- V. Hnplmrl (ISOS), 01 Fed. (('. ('. A.) rJS. This action was brought under .section M)6'.\, Hev. St., U. S., as it existed prior to tlie amendment of 181)7 to recover |)enalties for inserting a copyright notice ujxju an un- copyrighted hook. Held that since defendant did not make the hooks or insert the notice therein it was not liable not- witiistanding the fact that de- fendant knew at the time of the sale of sudi books that they con- tained a false notice of copyright. See also: McLaughlin v. Ra- phael (190.3), 191 U. S. 267; 24 Sui). Ct. 10."); afT'g 11.') Fed. 85; Toft V. Stei'en.'i (1889), 38 Fed. (C. C.) 28; Rigtiey v. Raphael (1896),77Fed. (C.C.)173. '■» Iloertel v. Raphael (1899), 94 Fed. (C. C.) 844. •0 Weldonv. Dicks (l-:ng.) ( 1878), 48 L. J. (Ml. 201; 10 C'h. D. 247; 39 L. T. 467; 27 W. H. 639. 522 THE LAW OF MOTION PICTURES as settled that the title of a book or motion picture has no copyright protection." However, there is one purpose for which the copy- right law regards the title as an integral part of the work, and that is for the purpose of identification. It does not permit the proprietor to copyright the work under one title and exploit it under another which differs substantially. To do otherwise would defeat the whole purpose of notice.^^ ^'Corbett v. Purdy (1897), 80 Fed. (C. C.) 901; Glaser v. St. Elmo (1909), 175 Fed. (C. C.) 276; Atlas v. Street & Smith (1913), 204 Fed. (C. C. A.) 398; App. Dism. 231 U. S. 348; 34 Sup. Ct. 73; Harper v. Ranous (1895), 67 Fed. (C. C.) 904. See also: Section 121. LHck V. Yates (Eng.) (1881), 18 Ch. D. 76; 50 L. J. Ch. 809; 44 L. T. 660. Plaintiff in 1881 had copyrighted his l)()()k under the title of "Splendid Misery." The court held that there could be no copyright in the title of a book. See Crotch v. Arnold (Kng.) (1909), 54 S. J. 49. '^^ Collier v. Imp. (1913), 214 Fed. (D. C.) 272. After a dra- matic composition was copy- righted under tli(! name A White Slave's Love, the work was i)ro- duced under the title The Under- tow. Hough, .1.: "I am not satisfied that an author can copyright a play under one title, produce it under another, and hold as an infringer a person who has been misled by his actions. But I am not called upon to determine that question, as it does not arise upon these pleadings. The l)ill avers that the defendant produced the complainant's work with full knowledge of all the facts. As to such person I think it clear that an author or assignee does not forfeit a copyright by a change of the title of the work." See also: Blame v. Spear (1887) .30 Fed. (C. C.) f>29: " If, however, the orator pul)Iished the composition under a title dilTerent from that by which he copy- righted it, in substance, he would thereby pr()l)ai)ly so depart from his copyright that he would leave the composition to the public. Drone, Copyrights, 140, 142." TITLE- ^HANOTNO TITLE 523 But an immatorial variatic misled will not vitiate the c )n whereby none is apt to be opyright.®'^ See in this connection: Calign V. Inter Ocean Newnjxqyer Co. (liKJ?), l-)7 Fed. (C. C. A.) 18(i. '^^ Donnelli/ v. /j-er.s (1882), 18 Fed. (D. ('.) r)92. A book was registered for copyrip;ht under the title Orer One Thoumnd Recipes, The Lnkc-^uk Coak- Book; a complete Manual of Prac- tical, Economical, Palatable and Healthful Cookery, Chicago: Donnelley, Loyd & Co., 1S7S. The book was subsequently pub- lished under the title The Lake- Side Cook Book, Xo. 1; a complete Maniud of Practical, Economical and Palatable and Healthful Cook- ery. By N. A. D., with place of publication and name of proprie- tor and notice of copyright. In an action to restrain defeiulant from infringing it was held the variance was not material. Carle v. Erans (1886), 27 Fed. (('. C.) 861. The name of the filed title here was: Piano-fntc ArrangemetU of the Comic Opera, The Mikado, or the Town of Titipu, by W. S. (iitl)ert and Sir Arthur SuUiran. Hy Cenrge L. Tracy. The printed book wa« Voc(d Score of the Mikado, or The Town of Titipu. A rrangement for Piaiuh- forte by (Jeonjv Lowell Tracy {of Boston, U. S. A.) of the above- nnmed opera by W . S. C$ilbert and Arthur SuUiran. Subseciuently another edition wa.s published in which the words "Piano-forte Score^' were sul> stituted for the words " Vocal Score." Held no substantial difference in the titles, as "The publLshetl title is suflicient to identify it with substantial certainty with the registered cojjyright, and no one could possibly be misled by the variations between the two." Patter.'ion v. Ogilvic Pub. Co. (1!)()2). 110 Fed. (C. C\) 4ol. The title of a work depositee! in accordance with the statute read : The Captain of the Rajah. By Howard Patterson. lilustrateil by Warren Sheppard. A thrilling and realistic sea story from a noted sailor's pen, and lavi.shly illustrated by the pencil of America's greatest marine artist. The b(X)k was publishetl with tlie following title: The Captain of the Rajah. .[ Story of the Sea, by Howard Patterson. Illustratetl by War- ren Sheppard. Held that tlie .shortening of title did not invalidate copyright. 524 THE LAW OF MOTION PICTURES Under the old Acts where deposit of the title of the work was the first step to secure copyright, the law per- mitted a change in the title of the work between such deposit and publication, if we may accept Black v. Allen as an authority.*^' Section 143. — Who may secure copyright. Although the Act does not expressly so provide, citizens of the United States are entitled to secure copyright. The rights of an alien to enjoy copyright are governed by Section eight of the Act. That section provides that the copyright secured by the Act shall extend to the work of an author or proprie- tor who is a citizen or subject of a foreign state or nation only when the alien author or proprietor shall be domiciled within the United States at the time of the first publica- tion of the work; or when such foreign state or nation grants either l)y treaty, convention, agreement or law to citizens of the United States the benefit of Copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protec- tion secured to such foreign author under the Act or by treaty; or when such foreign state or nation is a party Daly V. WebMer (1892), r)0 toward obtaining a copyright Fed. (C. C. A.) is:}. A leading and tlic actual publication of the ca.se on this proposition. book. I do not think that the ^* Black V. Allen (189.'{), .% courts should hold tliat such Fed. (C. C.) 764. "It is ca,sily change of title renders a copy- seen that an author may find it right invalid, unless compelled to his advantage to diange the to do so, and I do not think they title of his work between the are so compelled." time of his taking liis first step WHO MAY SKCUHK COI'VUIGHT 525 to ail iiiU'i'iialioiiiil aj^rceinciit whicli providt's U)r rccijjroc- ity in the granting oi copjTight, by the temi« of which agreement the United States may at its pleasure, become a i^arty thereto. Tlie section further provides that the existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamations made from time to time.*'^ «' Opinion of U. S. Attorney Clcncral, dated May 6, 1911, 29 Opinions of Atty. Oen'l, p. 64. " 1: It is the duly of the Presi- dent to determine and proclaim what foreign countries grant to tlie citizens of the United States rights similar to those specified in section 1 (e). 2: A proclamation of the Presi- dent may be made retroactive in that it may determine that cither of the conditions have been complied with since a specified date and thereupon the citizens or subjects of the country re- ferred to in the proclamation will be entitled to avail themselves of our copyright from the six?cific (late mentioned in the proclama- tion. (iermany having comiilicd with one or more of the conditions of Section 8, on or before July 1, 1909, a Oerman citizen could from that date acquire all the rights of our law (except those in Sec- tion 1, e) by publishing with copyright notice and complying with the terms of the law. Hut lie could not secure registration of his copyright until after the proclamation of April 9th, 1910. If an action were instituted between July 1, 1909, and April *), 1910, it might be maintained by proof of registration after April 9, 1910. In an action for an infringe- ment committed between July 1, 1909, and April, 1910, the in- fringer would not have an equi- table defense on the grouiui that at the time of the infringement he did not have any Jegitimate notice of the existence of the copyright. The notice of copy- right printed on the published copies would be notice that the copyright proprietor claims that one of the conditions of Section S have been complied with. Every- 520 THE LAW OF MOTION PICTURES The proclamation is conclusive evidence of the exis- tence of reciprocal conditions, and the courts will not review it. The reciprocal conditions will be presumed to continue to exist until the President by proclamation one must be aware that the absence of the proclamation is not conclusive evidence that the reciprocal conditions have not been complied with. 3: With reference to Section 1 (e) Germany complied with the condition on September 9, 1910, and the proclamation was issued on December 8, 1910, but it does not recite that the condition was complied with prior to its date. Hence there is not sufficient evidence of the compliance with the condition prior to the date of the proclamation to maintain an action for an infringement committed between the two dates. 4: As to the question whether a German citizen could acquire the right specified in Section 1 (e) prior to September •), 1910, it is clear that it could not be acquired prior to that date. Prior to the conipiiance by Germany with the condition of Section I (e), the condition of the German citizen with regard to that right was the same as if the act did not exist. Fr(Ue determined by a Presidential proclamation. See: Bong v. Campbell Art Co. (190S), 214 U. S. 236; 29 Sup. Ct. 028; alTg 155 Fed. (C. C. A.) 116; 16 Ann. Cas. 1 126. Under Section 4952 of the Revised Statutes as amended by the Act of March 3, 1891, the a.s.signee of an author wa.s not entitled to copyright of the work unless such author him- self would have been entitletl to take out such copyright. To the .same effect Yiwngling V. Schile (1882), 12 Fed., (C. C.) 97. 528 THE LAW OF MOTION PICTURES changed. His copyright is not lost, although it becomes liable to seizure. "During the war the property of alien enemies is subject to confiscation jure belli, and their civil capacity to sue is suspended."^' The declaration of war does not in itself work a confiscation of the cop^Tight, for an Act of Congress is necessary to bring about this result.^^ But it suspends the remedies of the copjTight owner, so that he may neither sue on his contract, hcense or royalty agreement, nor maintain an action for in- fringement.^^ He may, however, be sued in the courts of this country (the essential jurisdictional facts being present) by an American citizen.'" " Judge Story in Fairfax v. Hunter (1813), 7 Cranch, 603. See also: Opinions of Attor- ney General, Vol. 22, p. 268 (1898). Held that tlic copyrights of Spanish subjects during the ex- istence of a state of war between this country and Spain were suspended. «8 Brown v. United States (1814), 8 Cranch, 112; Distinglon Hema- tite V. PoHsehl (Eng.) (1916), 32 T. L. R. 349. ^* Watts V. Unione (191.5), 224 Fed. (D. C.) 192; aff'd 229 Fed. 136. "Where therefore such a contract ha.s been entered into with an alien enemy before the outbreak of the war, and has been IK-rfitrnied on his side, the war merely .suspend.s his remedy; in other words, he cannot sue upon it during the existence of hostili- ties." Cohen v. Mutual Life (1872), 50 N. Y. 616. "All intercourse, commercial or otherwise, between them is unla\N^ul; and all con- tracts existing at the commence- ment of the war suspended, and all made during its existence void. ..." Sands v. N. Y. Life Ins. Co. (1872), 50 N. Y. 632. "Clearly it is not law, nor do these or any recognized authorities intend to hold that a valid debt i)y note, bond or contract, existing when the war began . . . was nullified by the war. The debt is sus- pended until i)eace returns." ■"'Watts V. Unione (1915), 224 Fed. (D. C.) 192; alT'd 22'.) I'ed. BELLIGERENT ALIENS .721) As betwoon two belligerents suing each other in the courts of this country, it is always discretionary with the United States Courts whetlier or not they will (Miter- tain jurisdiction."' That cjuestion is eliminated, however, the moment the United States enters the war with one of the belligerents. If the cop}Tight of the work is technically in the name of a domestic corporation, but all or the great majority of the stockholders and directors are enemy ahens re- siding in the belligerent countrj^ the courts will un- doubtedly follow the doctrine expressed in Daimler v. Continental Tire Rubber Co.,''- and hold the company disqualified to sue. The English courts have consistently held to the rule that outward semblances must be dis- regarded, and that the ultimate disposition of the prop- erty remains the chief element for the court's considera- tion."^ 136. "It is apparent therefore 114 L. T. 1040; 32 T. L. R. 624. that to hold that a .subject's Tlie company was declared under right of action in his own coun- a (hsal)ihty to sue on a trade try against an alien enemy is debt, Baron Reading holding susiK-'ntled, would be to defeat that to jx;rmit such suit would be the very object of the suspen- to sanction "trading with the sory rule, and to turn a disability enemy." into a relief." ^^ Stephen M. Weld v. FruJiling " liichanls V. Wrcschier (1915), (1916), 32 T. L. R. 469; Moss v. 156 X. Y. Supp. 10.54; Kaiser 7)om//i»c (1916), 32 T. L. R. ;M3. Williclin II (1916), 230 Fed. In this connection the decision (D. C.) 717; Walts v. Unione of Judge McAvoy of the City (1915), 224 Fed. (D. C.) 192; Court of the City of New York aff'd 229 Fed. 136. is of interest, but we are unable '- Daimler Co. v. Continental tt) agree with the learned court in Tire Rubber Co. (Eng.) (1916), its conclusions therein expressed. 530 THE LAW OF MOTION PICTURES Copyright owned by partners, one or more of whom is a resident of the belhgerent country, comes withm the rule of disabihty."^ Such partners do not necessarily have to be belhgerents, for even a citizen of this country who resides in the belligerent country during the war is treated on a par with a belligerent alien.'^^ Agency between a belligerent alien residing in his country and an enemy alien residing in this country is not affected by the war;'^ but the declaration of war ipso- facto terminates the agency between such belligerent alien and an American citizen residing in this country, just as it terminates partnerships under the same cir- cumstances^^ Where the agency sm'vives, an American may pay over royalties to such resident agent, "^ al- Schulz V. Ravnes, N. Y. Law ^<^ Hubbard v. Mathews (1873), 54 N. Y. 43. "Moneys received by such an agent are lawfully paid and lawfully received, though a remittance by him to his enemy principal would be unlawful." Buchanan v. Curry (1821), 19 Johns. (N. Y.) 137. "The rule is founded in public policy, which forbids during war, that money or other resources sluill hv trans- ferred, so as to aid or strengthen our enemies. The crime con- sists in exporting the money or property, or jilacing it in the I)()wer of the enemy; not in de- livering it to an alien enemy, or his agent, residing here, under the control of our own govern- ment." Journal, Apr. 19, 1917. '^ G. Candilis & So7i v. Harold Victor & Co. (Eng.) C. A. (1916), W. N. 424. Two of the partners were residents of Trebizond, Black Sea, which is a part of Turkey, with whom England was waging war. " Porter v. Freudenberg (Eng.) (1915), 112 L. T. It. 313. '« Porter v. Freudenberg (Eng.) (1915), 112 L. T. R. 313. " I)is(ingto7i Hematite Co. v. Posschl (lOng.) (191()), 32 T. I>. R. 349; Cohen v. Muliuil Life (1872), .50 N. Y. 610. "All existing jjartnerships between (citizens or sui)jccts of Uie two countries arc dissolved. . . ." liELLlGLUENT ALIENS 531 though the agent is not permitted to remit them to his principal."'^ To remit royalties direct to the belligerent alien is treasonable. This prohibition extends not only to Amer- ican citizens, but as well to all aliens residing here.*" The right of a licensee of a belligerent copyright pro- prietor to sue for infringement here during the war is not easy to define. The question seems to be complicated enough in times of peace,^' but becomes doubly so on a declaration of war. However, the rule may be adduced that in cases where the licensee is required to join his belligerent proprietor as a party he may not sue; but where his hcense is so broad that it may be regarded in law as an assignment, he may enforce all his rights in the American courts, irrespective of the belligerent origin of his grant, provided, of course, that he is not himself an enemy alien. Great Britain passed a statute on August 10, 1916 with respect to copyright, in its nature supplementary " United Slates v. Grcnthonse owes a local and ternijorary (lSO;i), 4 Sawyer, 472. "Where- allegiance, which continues dur- ever overt acts are committed, ing the period of his residence." which in their natural conse- »' Tally v. Triangle Film Co. quence, if successful, would en- (1916), 229 Fed. (D. C.) 297; courap- and advance the interests Xcw Fiction Pub. Co. v. Star Co. of the rehcllioii, in judgment of (1915), 220 Fed. (D. C.) 994; law aid and comfort are given." Aaronson v. Fleckenstein (1886), See Foster's CVown Law, 2.S Fed. (C. C.) 75; Wooster v. 217. Crane (1906), 147 Fed. (C. C. A.) »o Carlisle v. United States 515; Saake v. Uderer (1909), (1S72), 1(3 Wall. 147. "An alien, 174 Val (C. C. A.) 135. wiiile domiciled in the country See also Section 161. 532 THE LAW OF MOTION PICTURES to the Trading with the Enemy Act of 1914, wliich greatly simpUfies these questions. Under the terms of the Act the Pubhc Trustee or Custodian is vested with title in all such copyrights, and holds the same until the end of the war.^- The act, however, is limited to such works as are first published or made in the enemy country, and makes no mention of works first pubhshed in England before the war and owned by enemies. It is the disposi- tion of this class of copyrights which raises the greatest problems. Section 145. — In what name copyright may be taken out. The copyright need not necessarily be taken out in the name of an individual. It may be obtained m the co-partnership or firm name of the individual, or even in a trade name or an assumed partnership name.^^ A corporation may likewise be the proprietor of the copy- right.^' But there is a Hmitation on this rule. The trade name 82 Chapter 32, G & 7 Geo. 5 Scribner v. Allen Co. (1892), 49 (1910). An Act to make provision Fed. (C. C.) 854; Wcrchncisler with respect to Copyright in v. Sirriiiger Lilh. Co. (1894), 03 Work.s first Pubhshcd or made in Fed. (C. C.) 808; Rock v. Lazarus an enemy country During tlie (Eng.), Law Reiwrts, 15 Eq. Present War. Cases, 104; Wcldon v. Dicks "'Section 23 of the Copyright (I^ig.) (1.S7S), Law Reports, 10 Act of 1909; Scribner v. Clark Cli. Div. 247; Fruit Cleaning Co. (1888), .50 Fed. (C. C.) 473, v. Fresno Home Packing Co. aff 'd as Belford v. Scribner ( 1 89 1 ) , (1899) , 94 Fed. (C. C.) 845. 144 U. S. 488; 12 Sup. Ct. *" Nal'l Cloak & Suit v. Kauf- 734; Callaghan v. Mycrx (1888), man (1911), 189 Fed. (C. C.) 128 U. S. G17; 9 Siq). Cl. 177; 215. IN WHAT NAME COPYRIGHT MAY UK TAKEN OUT 533 or firm iiunic must be one which the individual has a lawful right to use. The assumption of a "nom de plume" does not confer anj' pjoater rights upon the author than the use of his own name.*^' Haas V. Feist ^' was an action for the infringement of a song. The complainant's assignors had taken out copy- right in the name (jf Deutsch & Cahalin, but they had neglected to file a certificate with the County Clerk giving the names and addresses of the members of the firm, as required by the New York Statute. The court on re- hearing, held that inasmuch as this was a violation of the State statute, it went to the essence of the copyright and destroyed it. The complainants could not obtain the jirotection of the law in the very act of doing some- thing illegal. This decision may have a far reaching effect. Sup- pose a motion ])icture company has been using a trade name which is in unfair competition with another, and while so doing, and before injunction is granted, it takes out copyright in its trade name in numerous pic- tures. Would that destroy the copyright? We think " Clemens v. Belford (The work is dedicated to the public, "Mark Twain" Ca.se) (1S8.3), 14 tlic defendant was at liberty to Fed. (('. ('.) 72S. liy adopting jmblisli copies of it with the nom the noni deplume "Mark Twain," tie plume and all, as long a.s it he acfjuircd ncr greater right.s did not hold out to the public than he would have had in something as having been written his own name. For exclusive which was in fact not written by monopoly in his pul)lished work the plaintiff, the author must look to the copy- ^' Huns v. Ftisl (1«)16), 2.31 right statutes, and where the Fed. (D. C.) 105. 534 THE LAW OF MOTION PICTURES it would. In the Haas v. Feist case the violation was of a penal statute. In the supposititious case there is, however, only the violation of the civil law. The courts may, and we beheve, will follow the rule enunciated by Judge Hand. Section 146. — Subjects of copyright — In general. Section four of the Act provides that the works for which copyright may be secured under the Act shall in- clude all the writings of an author. A hterary work need not be of the highest class of literature in order to be copjTightable,^^ nor must it be altogether an original work. It is the arrangement, combination and development of the theme which call for the exercise of skill and in- genuity on the part of the author that establishes his right to copyright therein.^^ Even if the material with which he works is hackneyed, but he makes a new ar- rangement of it, he is entitled to copyright the work. The ^'' Atlas V. Street & Smith some labor and skill, sufficient (1913), 204 Fed. (C. C. A.) 398; to warrant copyright. App. Dism. 231U. S. 348;34Sup. Lawrence v. Dana (1869), 4 Ct. 323. (^liff. 1, Fed. Cas. No. 8136 (C. See also: Henderson v. Tomv C). Held that where the author kinK (1894), GO Fed. (C. C.) of a hook took the material from 758. sources common to all writers, «* Lover v. Dnrldnon (Eng.) if he arranged and (U)ml)ined the (1856), 1 C'. li. N. S. 182. Where material in a now way and if he one takes an old song which is exercised skill and discretion in in the public domain and emhel- his indopondent work he was lishes it with an original arrange- entitled to protect the work by ment and new accompaniments, copyrigiil. the work ac(iuires originality and See ScM-tion l.")? fi>r detailed dis- cu.ssion. What is "Indelicate and Vulgar"? This morning, in looking up a copyright question, I came across a mid-Victorian de- cision that constitutes a striking illustration of how "times do change.' In Broder v. Zeno Mauvais Music Com- pany, 88 Federal Reporter, 74, the learned judge said, with reference to an attempted copyright of what he calls "an indecent song": "I am of till' opinion that (he word 'iiottcst.' ns used in the cliorns of tiic son^ 'Dora Dean." has an indclicati' and vulvar nit-anin^'. and that for that rt'ason the st>nK cannot be protect»'ination.**' Section 147. Immoral and seditious works. On l)road i)rinciples of puhlie policy (•()i)yright will not protect a work which is immoral or treasonahle.^" This was recently illustrated in a case wherein the proprietor of the copyright in a novel sought to restrain the exliibi- tion of a motion picture. The court held that as the novel was immoral, copyright protection would be denied it, and no injunction would he granted.^' And the same rule was held to apply where the love affairs of a notorious courtesan had been elaborated on.^- The principle is well stated in a leading American case:'' Soo Section 157 for dotailod discussion. " Hoffman v. Le Tiaunik (1913), 20!) Fed. (D. C.) 37.-). "To be entitled to be copyriglitod the composition must be original, nu'ritorious and free from illegal- ity or immorality. 'And a work, in order to be copjTightcd, must be original in the sense that the author has created it by his own skill, labor, and judgment, with- out directly copying or evasively imitating the work of another.' However 'a new and original plan, arrangement or combination of materials, will entitle the author to a copyright therein, whether the materials themselves be new or old.' See in this connection: linkrr V. Seidell (1S7<)), 101 U. S. 99. Henderson v. Tompkins (1894), 00 Fed. (C. C.) 7.58. See on the - ject of protection under the Eng- lish Copyright Act. Court refused to restrain a motion picture re- production thereof. Distinguishing mechanical ar- rangements from dramatic per- formances: Harris v. Coinmon- ivealth (1885), 81 Va. 240; Jacko V. State (1853), 22 Ala. 73; Carte V. Duff (1885), 23 Blatchf. 347; 25 Fed. (C. C.) 183. 538 THE LAW OF MOTION PICTURES Nor will a description of a dance, no matter how origi- nal or unique be protected,^^ and the same holds true with respect to mechanical contrivances.^' • Cartoons, of course, may be copyrighted as such, but whether a series of cartoons, expressing a connected story, may be copyrighted as a "dramatic composition" is open to question, although there is authority to support the conclusion that they may be so copy- righted.^^ ^Fuller V. Bemis (1892), 50 Fed. (C. C.) 926. ^'' Serrena v. Jefferson (1888), 33 Fed. (C. C.) 347. "The plaintiffs' contention is founded solely upon the circumstance that in their play the river into which the fall takes place is mimicked by a tank filled with real water, instead of by an ap- paratus constructed of cloth, canvas or painted paste board. Such a mechanical contrivance, however, is not protected by a copyright of the play in which it is introduced. The decisions which extend the definition of 'dramatic compositions' so as to include situations and 'scenic' effects, do not cover the mere mechanical instnimoiitalitics by which such effects or situations are i)roduced." The court then distinguishes the instant case from Daly v. Palmer, 6 Blatchf. 264. Freligh v. Carroll (1871), Fed. Cas. 5092a (C. C). Where a mechanical contrivance was used in connection with a copjTighted play, the copyright did not pro- tect the mechanical device. See in this connection Sherman V. Marinelli (1916), 232 Fed. (D. C.) 730. 88 Empire City Ain. Co. v. Wilton (1903), 134 Fed. (C. C.) 132. "... I still think that the court cannot here decide upon demurrer that there is no dramatic right, so called, in a series of cart(jons. The Supreme Court has lately shoivn a tendency to xviilcn, rather than to narrow, llie scope of the copyright act. . . ." As to whetfier an exhibition of "Hiring pictures" infringes upon a copyright in cartoo7is, sec: Brad- GAGS, KTC 539 Photographs are copyrightabk',''^ as well as theatrical posters.'"" Editorials and special matter in a newspaper may l)e copyrighted, although there may be no general eopy- bury, Agtiew v. Day (Kng.) (1916), 32 T. L. It. 349; where it wiis so held and an injunction and damages were awarded to phiintifT. See in this connection: Hene V. Samslag (1912), 198 Fed. (D. C.) 359, where one Mc- Manus, a cartoonist, devised a character "Napoleon, the Newly- wed's Bal)y," and contracted with his cfvpiaintifTs to give them a license to reproduce such char- acter in tlie form of a doll. Held, that such agreement could not be exclusive, as he had never obtained a copyright on a doll, and defendants could not be enjoined from putting out any such doll. »»See Section five of the Copy- right Act of 1909. See also: Pagatw v. Bcseler (1916), 234 Fed. (D. C.) 963. As to tvho is entitled to copy- right of a ])fiol()(jmi>li see: Ellis v. Ogden (Kng.) (1884), 11 T. L. R. 5(). Where the sitter had not paid for her jjhotograph, the copyright therein vested in the photographer. But where such photographs were paid for, copy- right vested in the sitt^T. See, in support of the latter proposi- tion, Ellis v. Marshall (Eng.) (1895), II T. L. R. 522. See also: Gross v. Seligman (1914), 212 Fed. (C. C. A.) 930. PlaintilT owned the copyright of a photograph of a woman. De- fendant cjiu.scd the same model to pose for a pliotograph. The liglit, shade, background and po.se were practically identical. Defendant was held to infringe. See in this connection: Bracken v. Rosenthal (1907), 151 Fed. (('. C.) 136. It is an infringement to make a photograph of a copy- righted piece of sculpture. "This definition is fully sustained by the authorities ... so that it seems clear that the word 'copy' may be u.sed to designate a picture of a piece of statuary without in any way straining the well- establi-sluHl use of the word." '>" lileistein v. Donaldson (11K)2), 188 r. S. 235>; 23 Sup. Ct. 29S; rev. KM Fed. 993. 540 THE LAW OF MOTION PICTURES right in the same paper. ^"^ But government pubUcations cannot be protected. ^°- Nor may a motion picture scenario be copyrighted as a ''dramatic composition" although it may be copy- righted as a ''book." The distinction is artificial and incorrect in law, for a scenario is as much a dramatic composition as the lines of the play in the famous railroad scene in Daly v. Webster. '^^^ There seems to be a conflict of authority among the Circuit Courts as to whether advertisements and cata- logues may be the subject of copyright. Some incUne 101 Tribune Co. of Chicago v. Ass' Id Press (1900), 116 Fed. (C. C.) 12G. "However the rule may be in reference to original matter published in such form, I am of opinion that there can be no general copyright of a newspaper composed in large part of matter not entitled to pro- tection." "Under the amendment (au- thorizing copyright in America on foreign publications) whatever rights may be vested either in the Times or the Tribune through contract with it, to copyright any editorials or special matter, I am satisfied that it can be exer- cised only for matter distinctly set apart for the purpose and so distinguished in the publication, and lh:it the publication in this country must be substantially identical with that in the foreign country, to bring it within the intent of the statute." "2 Du Puy v. Post Telegram Co. (1914), 210 Fed. (C. C. A.) 883. lo'DaZy V. Webster (1892), 56 Fed. (C. C. A.) 483. "In plays of this class the series of events is the only composition of any importance. The dialogue is un- important, and as a work of art trivial. The effort of the composer is directed to arranging for the stage a series of events so realistically presented, and so worked out by the display of feeling or earnestness on the part of the actors, as to produce a corresponding emotion in the audience. . . ." For detailed discussion, see Sec- tion 1. BURLESQUES, PARODIES, INFERIOR COPIES 'A I to the opinion that they are not "writings" witliin tlie intent of the framers of the Constitution, and therefore not copyrightable, '°^ but others hold that there is enough of originality and skill displayed in getting up such ad- vertisements as to warrant holding them copyrightaljle.'"' Section 149. — Burlesques, parodies, inferior copies. A genuine criticism, burlesciue or i)arody of a copy- righted work is not an infringement. "A copyrighted work is subject to fair criticism, serious iM Motl Iron Works v. Clow (1897), 82 Fed. (C. C. A.) 310. "So far as the decisions of the Supreme Court have gone, we think tliey hold to the proposi- tion that mere advcrtisenient.s, whether by letter press or by pictures, are not within the pro- tection of the copyright laws" re- ferring to pictorial illu.stratioiis of artistic plumbing fixtures in a catalogue. See also: Lamb v. Clrnmi Rapids Furniture (1889), 39 Fed. (C. C.) 474, involving similar illustrations of furniture. Stone V. Dugan (1915), 220, Fed. (C. C. A.) 837; aff'g 210 Fed. 399. A pamphlet made up of adverti-senuMits which are ex- travagant, misleading and untrue, is not copyrightable. ^"^ White V. Shapiro (1915), 227 Fed. (D. (\) 957. Held a catalogue of brass goods, which consisted principally of trim- mings for electric light fixtures copyrightable. Court cites in support of its p(jsition: Da Pralo Statuary Co. V. Giuliani Statuary Co. (1911), 189 Fed. (C. C.) 90; Natl. Cloak & Suit Co. V. Kaufman (1911), 189 Fed. (C. C.) 215; Bleistcin V. Donaldson Lithoyraphing Co. (1902), 188 U. S. 239; 23 Sup. ("t. 298. Meccano v. Wagner (191G), 234 Fed. (D. C.) 912. A manual explaining the workings of me- chanical toys held copyright- able. See also: De Jong v. Bruckcr (1911), 182 Fed. (C. C.) 1,50; atTM 191 Fed. 35. But sec in this connection Nan Cloak & Suit Co. v. Stand- ard Mail Order Co. (1911), 191 Fed. (C. C.) 528. 542 THE LAW OF MOTION PICTURES or humorous. So far as is necessary to that end quota- tions may be made from it, and it may be described by words, representations, pictures or suggestions. It is not always easy to say where the hne should be drawn between the use which for such purposes is permitted and that which is forbidden. One test which when apphcable would seem to be ordinarily decisive, is whether or not so much has been reproduced as will materially reduce the demand for the original. If it has, the rights of the owner of the ' copyright have been injuriously affected. A word of explanation will here be necessary. The reduction in demand, to be a ground of complaint must result from the partial satisfaction of that demand by the alleged infringing production. A criticism of the origmal work which lessened its money value by showing that it was not worth seeing or hearing, could not give any right of action for infringement of Copyright." ^°^ Nor will the "imitation" of a work ordmarily be con- sidered an infringement. ^°^ But where the so-called imitation or impersonation was merely a vehicle for performing the whole of a copy- righted work, defendant's claim that she was simply '"6//i'M V. Whalen (1914), 220 work or novel was not an infriiiRe- Fcd. (D. C.) 359. incnt of tlic copyriglit if what, had Sec also: (Uyn v. Western been taken had been subjected Feature Film Co. (1910) (Eng.), to such mental labor and such a W. N. 5; 140 L. T. Jr. 176; revision and alteration as to Times, December 22(1,32 T. L. H. produce an original n^sult. 2,35. It was held that a frcimin(; "" (hren v. Minzemhcivier burlesque in a film of a serious (1909), 177 Fed. (C. C.) 286. rOPYUIGHTING REVISED EDITION OF WORK 543 niiiuickiiig the coiiiplaiuaiit'ti song was licld unten- able."''^ A vulgar and grossly inferior copy of a work will never- theless amount to an infringement thereof.'"^ Section 150. — Copyrighting revised edition of work. Under Section six of the Act, compilations, abridg- ments, adaptations, arrangements, dramatizations, trans- lations or other versions of works in the public domain, or of copyrighted works, when produced with the consent of the proprietor of the copyright in such works, or works repul)lished with new matter, are regarded as new works, subject to copyright under the provisions of the Act; but the section further provides that the pubhcation of any such new works shall not affect the force or validity of any subsisting copjTight upon the matter employed or any part therecjf, or l^e construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works. Thus a later edition of a copjTighted work may be protected by cop>Tight where substantial new matter has been added, ^'° and a later edition of a work in the ^"^ Green v. Lubij (1!)0<)), 177 (('. ('. A.) 833; imxlifying 10!) Fed. (C. C.) 287. Fed. 833. It was held thiit under *"^ Ilanfstoengl v. Smith (Kiig.) the copyright statutes j)ri()r to (1905), L. R. 1 Vh. 510; 74 L. J. the 1901) Act a.s well jus under Cli. 3ai; 92 L. T. 351; 21 T. L. R. that Act a work whidi had l)een 291. l)reviously cojnriKlitcd, might be "" West Fub. Co. V. Edward copyrighted again ai> a new work Thompson Co. (1910), 170 Fed. wlicre new matter had been .•iddeTight shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of the present copjTight act, and which has not been already cop^Tighted in the United States. Although portions of a work may be in the public domain or non-copyrightable matter, the work, as a whole, may be the subject of copyright.^^^ Section 152. — Component parts. A revolutionary section, and one wliich will greatly ^^^ Kipling v. Putnam (1903), was held that the copjTislitcd 120 Fed. (C. C. A.) 631. work was dedicated as the public See also: Bentley v. Tibbals coukl not know which part of (191.5), 223 Fed. (C. C. A.) 247. the larger edition was i)r()tected Where the complainant after by copyright and which was copyrighting a work included the not. entire copyrighted work in a larger "'^ Lawrence v. Bnnhndl (India) , edition, printed the larger cdi- 35 Ind. L. R. Calc. 463; Kipling tion in England with a copyright v. Pxdnam (1903), 120 Fed. notice and sold copies of su(;h (C. C. A.) 631. edition in the United States it COMPONENT PARTS 545 enhance the value of copyright, especially with respect to dramatic works and motion pictures, is Section three, which provides in effect that by copyright inj^ the work all the comi)onent parts of it are protected.'" That section has already shown its utility in several decisions, one in the copyrighting of a catalogue; "^ and in the right to use the words of a copyrighted song in conjunction with mechanical contrivances.'"'' The protection afforded by this section of the Act has reference to the separate chapters, sul)divisions, acts, etc., of a work and not to the subdivision of rights, Ucenses or privileges.'"^ The section also provides that in the case of composite works or periodicals the copyright thereon shall give to '•'MfliV A Kxpress v. Life Pub. Co. (1!)12), 102 Fod. (C. ('. A.) 899. "* Do Pralo v. Giuliani (1911), ISO Fed. (C. C.) 90. "The complainant having copyriglited its entire catalogue was entitled to the protection of the copyriRht hiw as to each cut contained therein." "* Witmark v. Staiuldid Mu.^ir Roll (1914), 213 Fed. (I). (".) 532; aff'd 221 Fed. 370. The copyright of a work as a musical composition prior to 1909 jm)- tectod the music but not the words. Under the 1Tights issues a certificate upon the making of the deposit called for in that section, which provides that copyright in the work shall endure for twenty-eight years from the date of the certificate. When the question comes before the courts the Register of Copyrights will probably be sustained in his action. Since the constitution provides that the term of copy- right must be Umited, the courts will no doubt fix the time of protection of the unpubhshed work for the same period as that granted to the published work. They will also hold, we believe, that where the un- published work is thereafter reproduced in copies for sale, the original term will run, not from the date of first publication, but from the date of the deposit of the copy "vForr/ V. Jilmu'if (1900), US 1!)0 IT. S. 200; 23 Sup. Ct. 709; Fed. (C;. C.) 042; Dam v. Kirk Holmes v. Ilurst (IS!)!)), 174 La Shclle (1910), 175 Fed. {C. C. U. S. 82; 19 Sup. Ct. 000. A.) 902; Mijflin v. While (1902), RENEWAL OK ( OI'YKIGHT .V17 called for in Section eleven and the issuance of the certif- icate for such unpublished work by the Register (jf C(jpy- rights. If this were not so and one who had obtained copyright in a i)lay as an unpublished work, refrained from publica- tion for a period of twenty-seven years and then first published, the original term would be extended for twenty- eight years and in addition there would be the right of renewal for an additional twenty-eight years. Section 154. — Renewal of copyright. The monopoly of copyright is extended by Section twenty-four of the Act for an additional period of twenty- eight years, but only to the author, if still living, or the willow, widower, or children of the author, if the author be not living, or if such author, widow, widower or children be not living, then by the author's executors, or in the absence of a will, to his next of kin, except that as pro- vided in Section twenty-three of the Act in the case of a posthumous work, a composite work upon which the coi)yright was originally secured by the proprietor thereof, or of any work copyrighted l)y a corporate body (^other- wise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the ]iroprietor of such copyright shall be entitled to a renewal and extension of such copyright for the twenty- eight year period. The application for renewal nuist in any event be made to the copyright ofTice and duly registered therein within one year prior to the expiration of the original term of the copyright. 548 THE LAW OF MOTION PICTURES The right of renewal can only be exercised by those mentioned in the Statute. ^^^ An assignment of the renewal copyright executed more than one year before the expiration of the origi- nal copyright is insufficient to give the assignee the right to apply for the renewal of the copyright in his own name. The apphcation for the renewal camiot be made except during the year preceding the expiration of the original copyright. During that year the right of renewal accrues to the author, if he is still living, or to his widow or chil- dren, if the author is not then living. During that year the author can assign his right to apply for a renewal and under such an assignment, made during that year, the assignee has a right to apply for the renewal. The Register of Copyrights will not accept a renewal application imless it is signed by the author or by the ^^» White-Smith v. Goff (1911), an author was employed to coin- 187 Fed. (C. C. A.) 247; aff'g pile a book and in consideration 180 Fed. 256. The right of re- of a .specified sum .sold the copy- newal can only be exercised by right to the pubUsher and the those mentioned in the statute, author's name was pubhshed on "It is to be noted that in each the title page as su('h author, the statute the grant of the original author alone was entitled to the copyright is to the author or pro- renewal. prictor, while as to the provision As to (he right of an atdfior who for an extension the word 'pro- has assiynal the copyright to cn- prietor' is studiously stricken Join his assignee, upon securing a out. . . ." renewal thereof see: Paige V. Banks See al.so: I'ierpunt v. Foule (1870), 7 Blatch. 152. (1846), Fed. Cas. 11,1.52. When RENEWAL OF fOPYRICHT •'►40 assip:noc in rase tho assignmorit was made during the last year of the original term. If the author has assigned tlie renewal right more than a year Ix'fore the expiration of the original term, and during the last year of the term refuses to sign an applica- tion, he could he compelled in an e(iuity action to sign such application. The difficulty of relying on such an action, however, lies in the fact that the action could not be commenced until after the commencement of the last year of the original term, and that it might not be brought to judgment until after the expiration of that year. In that event no application would be made during the last year of the original term and the right of renewal would be entirely lost. In case the assignment was made more than a year before the expiration of the original tenn, and the author dies thereafter, the assignment will become worthless, and the renewal copyright will l)el()ng absolutely to the persons designated in the statute. If, however, the assign- ment was made during the last year of the original term, application for the renewal copyright would vest such renewal right in the assignee, and the rights so vested would not be lost in case the author dies after the assignee has acquired the renewal copyright. After securing the renewal of the copyright, the copy- right notice should give the year when the renewal coi)y- right conunences and the name of the author in whose name the renewal right was obtained. Where the renewal right has been assigned and the assignment recorded as provided by the Act then the assignee may substitute his name in the notice in place of that of the author. 550 THE LAW OF MOTION PICTURES Section 155. — Assignment of copyright. Copyright is not a divisible right but the rights under it may be cut up, and a part of the right assigned to one and part of the right retained by the proprietor or as- signed to another party. There is no restriction m equity upon the power of the copyright proprietor to assign all or any portion of his right. An assignment of the whole or of an undivided part of the copjTight to each of two or more persons makes the holders thereof joint owners. ^^^ No formal assignment of the right to copjTight is neces- sary; mere consent is sufficient to constitute one the proprietor. ^^° '''Black V. Allen (1890), 42 Fed. (C. C.) 618; (1893), 56 Fed. (C. C.) 764. There is no re- striction in equity upon the power of a copyright proprietor to assign or transfer an exclusive right to use a copyrighted work. In such case the legal title remains in the prcjprietor; and a beneficial interest, to the extent which is agreed upon vests in the otiier party who lias accjuired an equi- table right in the copyright and who may bo properly styled an "assign(;e of an (Miuitable in- terest." "»C'ar/c V. Evans (1886), 27 Fed. (C. ('.) 861; Srhiiinachcr v. tichwenke (188.-)), 25 Fed. (C. (".) 466; lAttlc V. Could (18r)2), Fed. Can. 8,'{95 {C C); Laurence v. Dana (1869), Fed. Cas. 8,136 (C. C); Sweet v. Be?ining (1855), 1 K. & J. 169; aff'd 6 De G. M. & G. 223; Gill v. United Slates (1896), 160 U. S. 426; 16 Sup. Ct. 322; Callaghan v. Meyers (1888), 128 U. S. 617; 9 Sup. Ct. 177; Black v. Allen (1890), 42 Fed. (C. C.) 618; White-Smith v. Apollo (1905), 139 Fed. (C. C.) 427; aff'd 209 U. S. 17; 28 Sup. Ct. 319; Marsh V. Conquest (Eng.) (1864), 17 C. B. N. S. 418; 33 L.J. P. C. 319; lOJur. N. S.989;10L.T.717;r2 W. R. 309. Gould V. Banks (1832), 8 Wend. (N. Y.) 5()2. An iussign- ment or rcliiKiuishmciit in llie copyright of a book, or of an interest in surh copyright, is void if not in writing, altliougli ASSIGNMENT OF rOPYRHIHT .551 To, however, assign a copjTight wliicli has already been secured, it is necessary' that the assigiunent shall be in writing under Section forty-two of the Act which ex- l)ressly i)r()vides that copjTight secured under the present or j)revious Acts "may be assigned, granted, or mort- gaged by an instrument in writing^^ signed by the pro l^rictor of the copyright, or may l)e beriueathed by will. ^^^lere the assignment is executed in a foreign countrj', under section forty-three it must be acknowledged by the assignor before a consular office or secretary' of lega- tion of the United States authorized by law to admuiister oaths or perform notarial acts. Section forty-four directs that every assignment of copjTight shall be recorded in the cop>Tight office witliin three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which such assigmnent shall be void as against any subsequent l)urchaser or mortgagee for a valuable consideration, without notice, whose assigmnent has been duly recorded. Wliere a copyright is bequeathed, the executor in whom the copyright is vested must legally qualify ])efore he may execute a valid assignment thereof.^-' The assignment need not l)e drawn in any special form or arrangement. Any WTiting which evidences an inten- an agreement to assign or icliii- to the testator were bequeathed, quish may ho hy parol. i)iir|)<)rte<.l to a.ssipii such copy- '■-' Mackay v. Macknij (Scotch) rights before liavuig legally (1012), 2 Scots Law Times, 445. quaiifietl as such tru.stees. Held Trustees appoiiitetl under a will, that a.'^signmcnt was invalid, in whom the copyrights belonging 552 THE LAW OF MOTION PICTURES tion to grant or convey the copyright will be deemed suffi- cient.^-- And upon the sale of a business, a general state- ment that all copyrights belonging to such business are included, suffices to pass such copyrights. ^-'^ " An assignment of all the dramatization rights carries with it the rights to make both a dramatic and motion picture version, ^-^ but since the copyright in the play and in the film may be separately assigned, assignments of the copyright therein must be recorded to avail the assignee; and failure to record gives a bona fide purchaser of all or some of the rights a clear title. ^-'^ ^^"^ Kyle V. Jefferys (Eng.) right may be assigned by a sep- (1859), 3 Macq. 611. A receipt arate writing, and if doubt exist in payment of the copyright has as to which one of several copy- been held to constitute a vaUd rights the assignment refers, it assignment. becomes a question for the jury. RohinHon v. Illustrated London ^ '^s Baiiks Law Pub. Co. v. Neivs (Eng.) (1907), Times, Apr^ii Loit'yers Co-operative (1909), 169 26. Discusses the sufficiency of /Fed. (C. C. A.) 386. an instrument which operated ^-* See Section 1. to assign the entire copyright in ^^^ Brady v. Reliance (1916), a painting. 229 Fed. (C. C. A.) 137. Com- See also: Landekcr v. WolJJ i)Iainaiit dehvoretl to Munsey (Eng.) (1907), r)2 Sol. J. 4o; C'(/m- Company a manuscrii)t and re- berland V. Copeland (Kng.) {\SC)2), ceived therefor a specified sum. 1 H. and C. 194; 31 L. J. Ex. 353; Tlie receipt signed l)y complain- 9 Jur. (N. S.) 253; 7 L. T. 334; ant contained tiie following "Au- Leylund v. Stewart (luig.) (1S76), thor res(M-v('s right of iSook jMihli- 4 Ch. 1). 419; 46 L. J. Ch. 103; cation and dramatic rights, if any, 25 W. H. 225. after a trial publicatiim is corn- Sec also: Ilardncrc v. Arin- j)letod." The Munsey Company s/ro//^ (Eng.) (1904), Times, Dec. duly (•(»i)yrighf('(l the story and 20; 21 T. L. K. 1K9; (1905), assigned the motion picture rights Times, Jan. 12-13-17. The copy- to the defendant Mutual Com- ASSIGNMENT OF f'OrYRICHT r)r)3 Failure to rocord the assigiinient is nut available as a defense by an infringer. The purpose of the statute which recjuires recording is to j)rotect subsequent purchasers and mortgagees of the copyright, not infringers, and the assignee always has a cause of action against the infringer irrespective of the record.'-^ An action l)rought to compel an assignment or re- assignment of a copyright is not an action under the copjTight law, and may be brought in a State court.'-" jxiiiy which employed tlio d('- fendant Hehanco Company to mnimfucture the picture. The comphiiuant demanded that tlie ^hnlsey Company he re(juired to rea-'^siRii to him all rights in and to the copyright excei)t the right of serial publica- tion and that the other defend- ants he enjoined from selling or leasing the motion picture. Held, assuming that complain- ant could have required the MuiLsey Company, after serial ])ul)lication to reassign to him all the other rights, that such assignment would have been void against subsecjuent pur- chasers and mortgagees without notice, for a valuable considera- tion, unless recordeil in the office of the Librarian of Congress within sixtv davs after its exe- cution. "Such persons can surely not be worse off when no actual assignment whatever ha.s been made. Moreover, without ref- erence to any statute, when one clothes another with apparent ownership, though actually a.s trustee, he cannot defeat the title of tlmse who act in good faith, for a valuable consideration, and without notice deal with the trustee." See also: Photo-Drama Motion Picture v. Social Uplift (191')). 220 Fed. (C. C. A.) 448, aff'g 2i;{ Fed. 374. '-•'■■. Vcir Fiction v. Star (lOlo), ^ 220 Fed. (I). C.) 004. '"//(>(// V. Bates (1S07), SI Fed. (C. C.) Wl. See also: Albright v. Teas (1,SS2), 106 U. S. 613; 1 Sup. Ct. 550, a patent case. 554 THE LAW OF MOTION PICTURES An agreement to assign a copyright can be specifically enforced. ^-^ The assignee is permitted by Section forty-six of the Act when the assignment has been recorded to substitute his name for that of the assignor in the statutory notice of copyi'ight. Copyright is distinct from the property in the material object copjTighted. The Act pro\'ides in Section forty- one that the sale or conveyance by gift or otherwise of the material object shall not of itself constitute a trans- fer of the copyright, and in like manner, that the assign- ment of the copyright shall not constitute a transfer to the material object.^-^ As was said in the leading case of Stevens v. Cady: "" 128 Thomhleson v. Black (Eng.) (1837), iJur. 198. ^"^^ Harper v. Donohue (1905), .144 Fed. (C. C.) 491; Patterson V. Ogilvie Ptib. Co. (1902), 119 Fed. (C. C.) 451; Wilder v. Kent (1883), 15 Fed. (C. Q\) 217; Farton v. Prang (1872), 3 Cliff. (C. C.) 5:37; Marshall v. Bull (Eng.) (1901), 85 L. T. 77; Cooper V. Stephens (Eng.) (1895), 1 Ch. Div. 567. i^" Stevens v. Cad)/ (1852), 14 How. 528. "No doubt tlic \no\y- erty may he readied l)y a cred- itor's hill and he applied to tlie payment of the dehts of the au- thor. . . . Hut in case of such nsmedy, we suppose, it would he necessary for the court to compel a transfer to the purchaser in conformity with the requirements of the copyright act, in order to vest him witli a complete title to the property." See also: Stevens v. Gladding (1854), 17 How. 447. "So if he has not acquired the right to print the map, he cannot use his plate for that jnirpose, he- cause he has not made himself the owner of somelhing as neces- sary to printing as paper and ink, and as clearly a distinct s])ecies of property as either of tiiese articles, lie may make any other use of the plate of which it is suscejjtihle. He; may k(H'p it ASSKJNMKN'I' Or ( OI'VKKJHT OOO "Tho eop>Tipht is an cxclusivo rif^ht to the imiltipIicH- tion of the copies for the benefit of the author or his as- signs disconnected from the plate or any other physical existence. It is an incorporeal right to print and publish the map or as said by Lord Mansfield in Millar v. 7V////or, 4 Burr, 2390, a projjcrty in notion, and has no corporeal tangible substance.'" It was held in that case that a sale of plates on an exe- cution against the o\Mier of the copyright did not pass the right to reproduce copies therefrom. Applying that rule to motion pictures, a sale of a posi- tive film, without the assignment of the copyright therein, will not vest in the purchaser the right to make prints therefrom.''^' Assignment of the copjTight has become one of the methods by which certain of the rights are secured to the author. An author wishes to publish his stor>' in a maga- zine, but he does not desire to lose his dramatization rights. He assigns his right to copyright to the proprietor of the magazine. As the title now vests hi the latter, the story until tlic expiration of the limitod riRht to roprodure tho film in time, (luring; wliicli tho oxchisivo copies. right exists, and thon use it to " Whon it sold a iM)sitivo film. print maps. ..." which was the only moans of ixt- "» Uiiircrsal Film Mfg. Co. v. forming the play, it conforml Cnppermaii (1*)14), 21S Fetl. (C. tho performing right on tho pur- ('. A.) r)77. Whon ix)sitivo prints oha.sor and his a.85— Under Copyright Law. authorizing injunctions oil bill of "any party aggrieved," a party, to be entitled to an injunction, must have a cause of notion. I'ndcT Cnpyrlulil Law, § .'5(5 (Comp. St. S 9".7), uulliorizing the court to trrant iniuiictions -Miiion hill in tHjuity lilcd l)y any party airtrricvcd," a person, to be entitled to an injunction, must have a cause of action. In view of section 2r> (.section 'X>U\), providing for an injunction to restrain the infrini-'eiuent of a copyright, since section 30 does not create any new cause of action, but merely confers equitable jurisdiction in tlie United States courts to patent law and copyright controversies between citizens of tiie sjime state. I Ed. Note.— For other definitions, see Word.s and Phrases, First and Second Series, A.L'grieved Party.] 2. Copyrights C=585— Assignee, to whom owner of copyright In book assigned dramatic motion picture rights, but who did not obtain copyright, not en- titled to injunction; "party aggrieved." AssiKuee. to whom owner ol copyri^Mit in certain book assipied dramatic motion picture rifilits, but who did not copyrijiht motion picture iihoto- plav. under (\)pyri^'lit Law. § 11, as amended liy Act Aur. 24. 1912 (Comp. St § t>"):{2). was not entitled to an injunction in the District Court against othiT production in violation of its rights under such assignment, under se«-tion .'lU (section O'yol), authorizing the court to grant an injunction at tlie instance of "anv partv aggrieved." since such assitmee, not l)emg the owner of a copyright, was not entitled to an injunction under section 25 (section 9546). * .\ppc-al from the District Court of the United States for the South- ern District of New York. Action by the C.oldwyn Pictures Corporation against the Hovvells Sales Company, Inc., and others. From an order granting an mjunc- ■-•n pendente hte, defendants appeal. Reversed. '-nra an order of the District Court for the Southern District of tiie date of the renewal by her. Plaintiff alleges^hat, upon acquiringl dramatic motion picture rights of the book, it productd a dramatic motion v^ tare and had about completed the same at an expense of over $117,000, whei the defendants commenced the exhibition of the "Vendetta," which plaintif claims IS an infringement of its copyright. r ^^^^^l ^' -^at^enstein, of New York City (Charles H. Tuttle anc 1- 1, ■ -^f ^1;^^"' ^^oth of New York City, of counsel), for appellants KeJley iv: Becker, of New York City (Charles E. Kelley, of Ne^ :iork City, of counsel), for respondent. Before HOUGH, MANTON, and MAYER, Circuit Judges. MAYER, Circuit Judge (after stating the facts as above). We snail riot discuss defendants' contention that a renewal of the copy- right ot tlie book was not properly secured. For the purposes of this appeal we shall assume, without deciding, that plaintiff is the legal owner ot the dramatic motion picture rights The relief prayed for in the bill is tlfat prescribed in section 25 of he Copyright Act (Comp. St. § 9546), and the prayer is substan- o^nV]^ ^?^ V ^^^^ '" '^'^'^ ^^"^^^o" Pub- Co. V. Star Co. (D. C.) ^^0 Fed. 994. At the outset it is insisted by plaintiff that it is not a licensee, but the assignee of a separately copyrightable copyright un- der the copyright statute. The Act of August 24, 1912, amended Copyright Uw, § 11 (Comp. St. § 9532), so as to permit the copy thf n hoto b^'s "" ^'""^"''^ photoplays and "Motion pictures other At the time the aiit at bar was commenced, plaintiff did not have a copyright under the act above referred to, but was merely the as- signee of rights which may enable it hereafter to copyright a motion picture photoplay. Until then it will not be the owner of a copyrigh Its present legal position is that it is the assignee of rights but is in no sense the owner of a copyright. To say that plaintiff is' the a signee of such rights is merely another way of saying that it is a "^ DIFFKIIENCE BET^VEEN ASSKJNMENT AND LK'ENKE 557 the c<)j)yriglit, and may be c-()iii])C'llt'd to assign the same to the author.'^'' It would seem that there is an impUed warranty of titles where a copyright is assigned. '^^ Section 156. — Difference between assignment and li- cense. There is a great difference between an assignment of the copyright and a hcense, arising especially in the ques- tion of suit.'^'^ But for all purposes an exclusive license of a particular right under the copyright for the entire '^^Filck V. Young (1915), 230 Fed. (D. ('.) 743. See also: Furd v. Blaney (190G), 148 Fed. (C. C\) 842. "♦ .S't'm.s V. Marryal (Eng.) (1851), 17 Q. B. 281. "'/Is to what constitutes an assignment of the copyright or the mere giving of a license see: Lan- deker v. Wolff (Eng.) (1907), 52 Sol. J. 45; Tree v. Bowkett (Eng.) (189G), 74 L. T. 77; Lucas v. Cooke (iMig.) (ISSO), 13 Ch. D. 872; Lacy v. Toole (Eng.) (1867), 15 L. T. 512. For a careful discu^ssion of the differences in the rights granted see: Heap v. Hartley (Eng.) (1889), 42 Ch. D. 461. Re The Liedertafel Series (Eng.) (1907), L. R 1 Ch. 651; 96 L. T. 760, 76 L. J. Ch. 542; 23 T. L. 11. 461. Giving one "the sole and cxclasivc right of printing and publishing the .series" did not operate as an a-ssignment of the copyrigiit. In re Clinical Obstetrics (Eng.) (1908), Ch. D. Dec. 4. "The whole and exclusive right in all countries to print and pui)lish the work" was construed to confer an exclusive license and not an assignment of the copy- right. Black V. Imperial Book Co. (Can.) (1904), 5 Ont. L. R. 184. An agreement giving the ex- clusive right to publish and vend a work for a jxM-iod less than the unexpired term of tlie copyright is a license and not a partial a.ssignment of the copyright. 558 THE LAW OF MOTION PICTURES term of such copyright operates in law as an assignment of that right. 1^'^ Instruments purporting to convey certain grants or hcenses, especially dramatizations and motion picture rights, are constantly coming up for construction.^^' Dam V. Kirk LaShelle contains a valuable discussion on the reservation of rights and the methods of construing such grants. ^^* ^^^ Fitch V. Young (1916), 230 Fed. (D. C.) 743. "The analogy of patents is apt in which the form of an assignment does not count, and in which even a li- cense for the term of the patent to use, make and vend will, if exclusive, operate as an assign- ment." See in this connection: Ed- wards V. Cotton (Eng.) (1902), 19 T. L. R. 34. Plaintiffs sought in- junction to restrain defendant from singing in public a certain song which they had composed and which was taken from an oper- etta composed by them. Defend- ant offered to show that one of the plaintiffs had sent her a pencil copy of the song with the words, "Herewith the MS of your song 'Men.'" The court held that this was not a permanent and irrevocable license to sing the song, and granted injunction. '" See Section 1 for a detailed discussion of the decisions. "* Dam V. Kirk La Shelle (1908), 166 Fed. (D. C.) 5S9; aff'd 175 Fed. (C. C. A.) 902. CHAPTER XIII COPYRIGHT (continued) Infringement Sec. 157. Tests— What is protected. 158. Primary test. 150. Common sources. 100. Substantial similarity by coincidence. 101. Who may maintain action — Misjoinder of parties — Joinder of causes of action. 102. Whore action may be brought. lO.'i. Who is liable — Intent. 164. Wliat must be alleged and proved. 165. Bill of particulars. It is this branch of the Copyright Law with which most of the htigation concerns itself. Piracy is a broad term, and no statute nor court may with any degree of definitiveness say that this or that degree of similarity is sufficient to constitute piracy. Just as there are in- finite works which will l)e entitled to copyright, so there may be an infinite variety of arrangements of other works which may or may not infringe \\\)oi\ the originals; and to guide them in determining whether or not piracy exists, the courts have laid down certain rules and tests which time has shown to be of great value. Section 157. — Tests — What is protected. We must keep in mind the all important rule that 559 560 THE LAW OF MOTION PICTURES "There is no inherent property right in ideas, sentiments or creations of the imagination expressed by an author, apart either from the manuscript in which they are con- tained or the concrete form which he has given them, and the language in which he has clothed them." ^ It is not the intellectual conception, or the thought or the idea which is copyrighted, but the writings of the author, the form of expression and the arrangement of the words. ^ ''The right thus secured by the copyright act is not a right to the use of certain words, because they are the common property of the human race, and are as little sus- ceptible of private appropriation as air or sunlight ; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the ' Maxwell v. Goodwin (1899), U. S. 86; 19 Sup. Ct. 606; While- 93 Fed. (C. C.) 665. The court ' Smith v. Apollo (1907), 209 U. S. quoting from Siowe' v. Thomas 17, 28 Sup. Ct. 319; Stowe v. (1853), Fed. Cas. No. 13,514 Thomas (1853), 2 Wall. Jr. (C. (C. C). C.) 547, 23 Fed. Cas. 201; See also: Jejfrys v. Boosey Baker v. Seidell {\S7Q), \0l V. ii. (Eng.) (1S.54), 4 II. C. L. 867, 99; Johmon v. Donaldson {IS,H0), and Reade v. Conquest (Eng.) 3 Fed. (C. C.) 22; Ferris v. (1862), lie. B.(N.S.) 479; Mac- Ifexamer (1878), 99 U. S. 674, Gillivray on ('opyright, and 676; Bobbs-Merrill Co. v. Stranss Copinger on Copyright, 5th ed., (1908), 210 U. S. 339, 347; 28 for the oarh(T lOnghsh ca.ses for- Sup. Ct. 722. nuilating tlii.s rule. (Uirtwrighl v. Wharton (Can.) See generally for discus.sion of (1912), 25 Ont. L. R. 357. C'opy- iiifringemeiit of drainati(; com- right extends only to the cxpres- |M)sitions;,S'r/i/o/zv. ylmasis (Eng.) sion, development and scMiuence (1909), Times, May 19. of the work, not to the ideas ^Holmes v. Hursl (1899), 174 themselves. rHlMAUY TEST .)t)l author. But the rifj;ht is to that arran^ciucnt of \V(jrds wiiich tlie author has selected to expres.s his ideas." ^ 'tTie^ purpose of affording protection toli,uthors is "t(j I)romotc the progress of science and useful arts." ' If an author could secure a monopoly of the ideas and intel- lectual conceptions contained in his writings, the protec- tion given to authors would impede rather than advance the arts as each author by his ai)i)roi)riati<)n would narrow the field of thought to which authors go for their material.' In the words of Lord Mansfield : "We must take care to guard against two extremes equally prejudicial — the one, that men of ability, who have employed their time for the service of the comnmnity may not be deprived of their just merits and the reward of their ingenuity and labor; the other, that the world may not be deprived of imj)rovements, nor the progi'ess of the arts be retarded. The act that secures copyright to authors guards against the piracy of the words and sentiments, but it does not prohibit writing on the same subject." ^ Keeping this rule of law constantly before us, we will readily understand the primary test that is apphed to determine infringement or piracy of a work. Section 158. — ^Primary test. In the leading English case of Chatierton v. Cave,'' cited 'Holmes V. Ilurst (1S91)), 174 '• Snipr v. Muorc (Kng.), 1 U. S. 82; 19 Sup. Ct. 606. lOa-st, 361. * Constitution of the United ' Cfuitterton v. Caiv (I'^ng.) States, Article one, Section eight. (1S78), 3 App. Cas. 483; 47 L. J. » Holmes V. Hurst (1899), 174 (^ H. 545; 38 L. T. 397; 26 W. R. U. S. 86; 19 Sup. Ct. 606. 498. For an earUer leailing Eng- 562 THE LAW OF MOTION PICTURES time and again with approval in American cases, the rule of piracy was expounded that in order to maintain an action for infringement a ''substantial and material part" of the work must be taken. That rule is now accepted as the primary test of in-' fringement, and was laid down in the early American case of Emerson v. Davies,^ where Judge Story, speaking of the infringement of one book by another, said : "It is not sufficient to show that it may have been suggested by Emerson's, or that some parts and pages of it have resemblances in method and details and illustra- tions to Emerson's. It must be further shown that the resemblances in those parts and pages are so close, so full, so striking, as fairly to lead to the conclusion that the one is a substantial copy of the other or mainly bor- rowed from it." This rule has been reiterated, clothed in different lan- guage, in the more important cases of infringement which have come before the iVmerican courts. Judge Blatchford lays it down in Daly v. Pahner.^ In that case complainant represented in his play a railroad scene in which the hero was tied to a railroad track to be killed by an oncoming train. Shortly before the arrival lish case, see Planche v. Braharn ^Emerson v. Dairies (1845), 3 (1837), 4 Bing. N. C. 17. Story, 768. hi rrengroiise y. "Sol" Syndi- ^ Daly v. Palmer (1868), 6 cate (Eng.) (1901), Times, Sept. Blatch. 256. 26, the taking of a single page of Sec also: Chappell v. Fields a large book was lield sufficient (11)14), 210 Fed. (C. C. A.) 864, to entitle plaintiff to an injunc- and Ricordi v. Mason (1911), 201 tion. Fed. (C. C.) 182; aff'd 210 Fed. 277. PKIMAUY TEST o(J3 of tlio Iruin, the hero was released by a woman, and iin- nu'diately thereafter the train was seen rushing by. This was the cUmax of the play. The defendant re]n-odu('ed a similar scene in liis jjlay, the (ievel()i)ment of the action and the denouement being practically identical in both scenes. The court said : "All that is su))stantial and material in the plaintiff's railroad scene has been used by Boucicault in the same order and sequence of events, and in a manner to convey the same sensations and impressions to those who see it represented, as in the plaintiff's play. Boucicault has indeed adapted the i)laintiff's series of events to the story of his play, and in doing so has evinced skill and art; but the same use is made in both plays of the same series of events to excite by representation the same emotions in the same sequence. ... As in the case of a musical composition, the air is the invention of the author, and a piracy is committed if that in which the whole meritorious part of the invention consists is incorporated in another work without any material alteration in se(fuence of bars; so in the case of a dramatic composition designed or suited for rei)resentati()n the series of events directed in writing by the author in any particular scene is his invention, and a piracy is connnitted if that in which the whole merit of the scene consists is inc()ri)orated in another work with- out any material alteration in the constituent parts of the series o£-e\:ents or in the sequence of the events in the series." \Vlien in another action '° the question of the infringe- '^ Brady v. Dalu (l-SllD), 175 U. S. 148, 20 Sup. Ct. 62. See 5G4 THE LAW OF MOTION PICTUKES ment of the same scene reached the Supreme Court, that tribunal restated the rule as follows: ''When anyone, without the owner's permission pub- licly performs substantially that whole railroad scene, he substantially performs a dramatic composition which is covered by the owner's copyright." In Fischel v. Lueckel,^^ involving the infringement of the copyright of a photogra\aire, the court said: "The appropriation of part of a work is no less an in- fringement than the appropriation of the whole, pro- \dded the alleged infringing part contains any substantial repetitions of any material parts which are original and distinctive." Where the infringement of a dramatic composition was involved,^- Seaman, J., quoting from an earlier case ^' stated : "As the owner of material possessions may assert his also: Farmer v. Elstner (1888), 'SS Fed. (C. C.) 494, and Drone on CopjTight, p. 408, and cases therein cited. * ''Fisfwl V. Lueckd (1S92), 5:3 Fed. (C. C.) 499. See also: Falk v. Donuldson (1893), 57 Fed. ((\ ('.) .32, where the court said: "But the real question is not one as to admis- sion of fact, but whether the lithograph is an illegal ai)propria- tion of the sjib.slanlial parts of the photfjgraph. In such a case the irKjuiry always is whether the alleged infringer has apjjropriated the results of the original concep- tion of the artist. It is not a question of quantity but of quality and value; not whether the part appropriated is a literal copy of the original production, but whether it is a subslaritial ami material part." See also: Gray v. Russell (1839), 1 Story, 11; Folsom v. Marsh (1841), 2 Story, 115. ^■^ Maxwell V. Goodwin (1899), 93 Fed. (C. C.) 665. " Stowe V. Thoynas (1853), Fed. Cas. (C. C.) No. 13,514. • PRIMARY TEST ')()') rights wherever or in whatever disj^uise liis profjerty is found, so the author of a hterary composition may claim it as his own in whatever language or form of words it can be identified as his ])roduction. The true test of piracy then is not whether a composition is copied in the same language or in tlie exact words of the original, but whether in substance it is reproduced, not whether the whole, but a material part is taken. . . . The controlling question is whether the su])stance of the work is taken witlKJUt authority." The court, continuing, in holding that defendant's I)lay did not infringe, said: "When the two plays are compared, read either as an entire production or in detail in any parts or form I can find no copying in plot, scene, dialogue, sentiment, char- acters or (h-amatic situations, and no similarity aside from the general features and subjects . . . indeed there is marked dis?iimilarity in the portrayal of all the char- acters and in thought, treatment and expression both in detail and tlu'oughout the plays." In another case ^^ it was held that there was no in- fringement between the two plays: ''Analyzing the details of the situation as presented in these two plays, the points of essential difference so far outnumber the points of similarity that it is difficult to understand how anyone could persuade himself that the one was Ijorrowed from the other." A published story in a magazine was held infringed by the performance of a dramatic composition in Dam v. . 1' Ihcbgcs V. Iklasco (1904), 130 Fed. (C. C.) 3SS. 566 THE LAW OF MOTION PICTURES Kirk LaShelle,^' one of the leading American cases. There the theme of the story was the change of the disposition and character of "Dan" the central figure, from a man of submissive temperament in his household and towards his wife and mother-in-law, to a man of commanding and asserting mien upon his becoming a father. The court held that the theme of the story was ''substantially" imitated in the defendant's play: " It is true the dialogue of the drama is not in the words of the copyrighted story; but its exact phraseology was not necessar>^ to the adaptation of the plot or subject or the portrayal of the different characters to the play . . . it is enough if the essence of a play is taken from an origi- nal literary production. ... He has cleverly staged the play and by the use of language and characters has given the subject of the story an excellent inter- pretation. But this is unimportant, if he has taken, as I think he has, the substance of complainant's author- ship." On affirmance ^^ the Cu-cuit Court of Appeals held: "The playwright expanded the plot. He made a suc- cessful drama. The story was but a framework. But the theme of the story is the theme of the play, viz.: the change produced in the character of a husband by be- coming a father." A i)ra('tical method of arriving at the conclusion of "> Datn V. Kirk L' of the play, and, generally speaking, the method of its execution." Attention may be here called to the extensive litigation which grew out of the infringement of the ])lay "Under the Gaslight." Many interesting copyright questions were at one time or another passed upon by the courts in the course of these controversies. A statement giving the history of the Utigation will be found below. •^ " Vernon v. Shubert (1915), 220 Fed. (D. C.) 694. See also: Nethersole v. Bell (Rn^.) (1903), Times, July 4, 31, which invulvcd the right of defendant to produce a play "Saplio" written by a M. Es- j)inasse. Held that there was a substantial i)irating; of situation and plot from "Sapho" written by Clyde Fitch, and injunction was granted. '""Under the Gaslight." In the extensive litigation growing out of the infringement of the play "Under the Gaslight" many interesting copyright (juestions were at one time or another passed upon by the courts. The first ca.se was for infringement of the railroad scene, where the court found in favor of the plain- tiff. Daly V. Palmer (1S68), G Blatch. (D. C.) 256. This deci- sion was never appealed from. The second action first came up in the form of an application for injunction pendente lite which was denied, Daly v. Brady (1889), 39 Fed. (C. C.) 265, ui^on the gnjund that there was a material variation in the title as filed and the title as used. On final hearing the Hill of Complaint was dismissed, the court following the decision on the motion. Daly v. Wehi^ter (1891), 47 Fed. (C. C.) 903. An api)eal was taken, and the Court of Apjjeals reversed the Circuit Court, and remanded the case with instructions to enter 568 THE LAW OF MOTION PICTURES Section 159. — Common sources. The usual defense set up in an infringement action is that complainant and defendant have derived their works from a common source, which is in the pubUc domain; or that complainant's theme is a part of the common stock of literary material; and that complainant's copy- right does not protect that which is public property, a decree for an account and in- after plaintiff moved for a new junction [Daly v. Webster (1892), 56 Fed. (C. C. A.) 483, 1 U. S. App. 573], on the ground that the variation in the titles was immaterial, and there had been an infringement. After the coming in of .the master's report and entry of final decree, an appeal was taken by the defendant, and the decree was affirmed without opinion. Webster v. Dahj, 11 U. S. App. 791. The appeal was dismissed by the Supreme Court. Webster v. Daly (1895), 163 U. S. 155, 16 Sup. Ct. 961. The final decree in that action did not provide for profits. There- upon a new action was com- menced to recover statutory dam- ages for the infringement [Daly v. Brady (1895), 69 Fed. (C. C.) 285], and judgment was entered in favor of the defendant on the ground that insufficient testi- mony was presented. There- trial which was granted. The cause came on before the same judge, and judgment was found in plaintiff's favor. An appeal was taken, and the judgment was affirmed. Brady V. Daly (1897), 83 Fed. (C. C. A.) 1007,51U. S.App. 621. On writ of error to the U. S. Supreme Court judgment was affirmed. Brady v. Daly (1899), 175 U. S. 148, 20 Sup. Ct. 62. "The Octoroon." Another play productive of copyright litigation was that entitled "Tlie Oc- toroon." The opinions will be found to contain valuable discus- sions on the law of literary \m)\y- erty. Boucicault v. Fox (1862), 5 Blatch. (D. C.) 87; Boucicault v. Wood (1H67), 2 Biss. (C. C.) 34. And in the play "Sliougliraun" reported in Boucicaidt v. Hart (1875), 13 Blatch. (D. C.) 47, and BonncauU v. Chattrrton (Eng.) (1876), 5 Ch. Div. 267. COMMON SOURCES r>GO In a case whore both the complainant's j)lay and the defendant's motion picture were alleged to ha\e been based upon a foreign work which was in the public domain, the test of infringement in such case was stated by the court as follows: "Defendants would undoubtedly have the right to make an independent translation of their own, with such modifications as their own ingenuity might suggest. They had no right, however, to transfer into their own adaptation variations from and additions to the French play wliich w^ere original with Jackson (complainant's assignor) who first translated it and copyrighted it here." '' The courts have recognized the fact: "That the points of similarity in two dramatizations of the same novel must necessarily be much greater than should be possible in any two original dramas, if each were written entirely independent of any knowledge of the other." -" Judge Story has held that: "It has been truly said, that the subject of both of these works is of such a nature that there must be close ^^Slevemon v. Fox (1915), 226 Fed. (D. C.) 9i)(). Cold mark v. Kreling (1888), 35 Fed. (C. C.) GOl. For a careful analysis of two i)lays alleged to ho derived from a coinmon source showing what suffices to .show in- fringement. Daly V. Palmer (1868), 6 Blatch. 256. "The true test of whether there is piracy or not, Is to ascertain whether there is a servile or evasive imitation of the plaintiff's work, or whether there is a bona fide original compilation, made up from common materials, and common sources, with resem- blances which are merely acci- dental, or result from the nature of the subject." -"Mxon v. Doran (1900), 168 Fed. (C. C.) 575. 570 THE LAW OF MOTION PICTURES resemblances between them. But the real question on this point is not whether such resemblances exist, but whether these resemblances are purely accidental and undesigned, and unborrowed because arising from com- mon sources accessible to both the authors, and the use of materials open equally to both; whether, in fact, the defendant Davies used the plaintiff's work as his model, and imitated and copied that, and did not draw from such common sources or common materials.-^ " Where it is contended that the theme of complainant's work is one which is part of the common stock of ideas, one which has been used by authors and playv\Tights for many years, the defendant will not be restrained unless he has gone directly or indirectly to the complainant's work and taken that portion of it which is the creation of the complainant, — that is to say, the complainant's embellishment and original treatment will be jealously guarded by the courts.- But no author will be permitted to appropriate unto himself a literary theme to the ex- clusion of others.'^ ^^ Emerson v. Davies (1845), Fed. Cas. No. 4,436, and see 3 Story, 76S. See also: Pike v. Nicholas (Eng.) (18G9),' 5 Ch. App. 251. "When once it was established that there were common sources it would be naturally expected that there would l)C great similarity in the statements of the facts which were narrated from Oiose com- mon sources. Acc(jrdiiigly there might be traced throughout the work of the defendant a great similarity to the outline and plan of that of the plaintiff." ^^ Aronson v. Fleckenstein (18S6),2SFed. (C. C.) 75. "Nixon V. Doran (I'M)!)), lOS Fed. (C. C.) 575. "In the same way a copyright of the tlramatiza- tiou of a novel, if the novel is free to the wf)rld by the expini- tion of the original copyright, COMMON SOURCES i71 Judge Larom})c has humorously illustrated the rule m the followhig language: "There is nothing original in the incident thus repre- sented on the stage. Heroes and heroines, as well as villains of both sexes, have for a time whereof the memory can protect merely the original j)<)rtioi)s of the drama, and the original arrangement of scenes and characters in so far as they arc not an exact reproduction of th(! hook." (Jlascr V. ,S7. Elmo (1909), 175 Fed. (C. C.) 276. Holt, D. J.: "By the expiration of the term of the copyright of the novel, how- ever, any person could make any use of the novel which he .saw fit. He could copy it or publish or make a play of it. It was no longer protected by the copy- right act. But although a per- son could make a play from the novel, using its plot and inci- dents in such play, he could not copy the play of 'St. Klmo,' already written and copyrighted, furtlicr than to make such a general use of the plot and inci- dents of the novel as was open to the public generally." Slmms V. Staninn (1X90), 75 Fed. (C. C.) 6. "The copyright obtained by complainant for liis works did not jirotcct him in the use of material which had orig- inated or had been utilized by some previous writer on the same subject." Robl V. Palace Theatre (Eng.) (1911), 28 T. L. R. (59. The representation of a dramatic piece in which the similarities to a piece previously produced are due to mere coincic^lence — both plaN's being de/ived independently from the common stock of dramatic ideas — is not an infringement of the rights given by the Dramatic Copyright Act 1S33, to the au- thor of the play first produced. See in this connection: Griggs V. Perrin (1892), 49 Fetl. (C. C.) 15. "A party may invent a new machine and write a book descril>- ing it for which he may obtain a copyright. This does not pre- vent another author from de- scribing the same machine. He must not copy the copyrightetl book, but he may write one of his own. . . . The copyrighted book is sacred, but not the sut>- jcct of which it treats." See also: Burnell v. Chowii (1895), 09 Fed. (C.C.) 993. 572 THE LAW OF MOTION PlfTURES of the theatre-goer runneth not to the contrary, been precipitated into conventional ponds, lakes, rivers and seas. So frequent a catastrophe may fairly be regarded as the common property of all plaj^Tights." -'' In Vernon v. Shubert,-'^ the court speaking of themes upon which authors draw for their Hterary productions said : ''Of course, as so often happens, there are some char- acters in both plays having a similarity, and there are here and there some instances of similar phraseolog}'. But that is a very old story in playwriting, because, after all, there are not so many themes around which a play may be plotted. Secret marriages, district attorneys, murders, office boys, blackmailing, good people and bad people have walked about behind the footlights for many a day." And again the same court said : "It is to be expected that two playwrights writing independently from a common source may develop similar- ity in their plots and in their lines." -" On affirmance the Circuit Court of Appeals held that: "This does not entitle the person who first presents that suggested situation in a copjTighted play from de- priving other persons to whom the same situation nat- urally presents itself, upon perusal of the narrative which is the common source, from also presenting it in a book or a play, provided that the later one gets the idea from the common source, not from the copyrighted play.'"-' ^*Serrena v. Jefferson (1S8S), ^^ Bachmati v. Bela^co (1013), 33 Fed. (C. C.) 347. 224 Fed. (D. C.) 815. » Fernon v.. S/)7i/)er/ (101.5), 220 ^Uinchman v. Rclnacn (1013), Fed. (D. C.) 004. 224 Fed. (C. C..A.) 817. COMMON SOURCES 573 Judge Lacombe states the proposition as follows: "The copyright cannot protect the fundamental plot which was common property long before the storj' was written; it will protect th(; embellishment with which the author added elements of literary value to the old plot, but it will not operate to i)rohibit the presentation by someone else of the same old plot without the particular embellishments." -^ A practical test commonly used in the case of works based upon a common source is to see whether the altera- tions, omissions and additions which first appeared in the complainant's version are followed by the defend- ant.2« In connection with the apphcation of this test, absence On the question whether defend- ant may make luie of complainwiVs work where the same is based upon common properltj, see Johnson v. DonaUson. {IS80) , 3 Fed. (C. C.) 22; aiaser v. St. Elmo (1909), 175 Fed. (C. C.) 27G; Stevenson v. Fox (1915), 22G Fed. (D. C.) 990. ^London v. Biograph (1916), 231 Fed. (C. C. A.) 696. See also on tlie same question: Bobbs-Merrill v. Equitable (1916), 232 Fed. (D. C.) 791; StevenJion v. Harris (1917), 238 Fed. (D. C.) 432; Eichel & Colligan v. Woods (1917), District Court of the United States Southern District of New York, Manton, J., April 2d. ^^ Stevenson v. Fox (1915), 226 Fed. (D. C.) 990; O'Neill v. Gen. Film Co. (1916), 157 N. Y. Supp. 1028. See: Recs v. Robbin.'i (1914), London Times, Jan. 29, Feb. 14, and July 4, for a careful ex- amination of two plays by the court where the contention was that the material in both plays was taken from the common stock of ideas. See also: Jacobson v. De MiUc, District Court of the United States, Southern District of New York, opinion by Slicppard, J., October 1, 1916, wliere the same defense was interposed in an action for infringement of a play. 574 THE LAW OF MOTION PICTURES of any proof from the person who produced defendant's work to explain the reasons for the same variations from the original work will be construed against the defendant.^'' Section 160. — Substantial similarity by coincidence. It was- held in an earUer line of cases that where the similarity or identity between two works was caused by mere coincidence, each author working independently of the other, no cause of action existed for infringement of either a statutory copyright " or the common-law right in an unpublished work.^- An extreme late case ^^ where this principle was applied was one where the action was based on the common-law rights in a well-known unpublished play "Peg O' My ^° O'Neill V. General Film Co. (1915), 157 N. Y. Supp. 1028; Stevenson v. Fox (1915), 226 Fed. (D. C.) 990. See also: Bleistein v. Donaldson (1903), 188 U. S. 239; 23 Sup. Ct. 298. ^' Reed v. Carusi (1845), 20 Fed. Cas. (C. C.) 11,642. John.son v. Donaldson (1880), 3 Fed. (C. C.) 22. "If eacli of two persons should compose a j)0(!in id(;ritically alike, lie who first composed it would have no priority of title over the other, nor would he acquire priority by first publishing it. The law of copyright would j)rotect each in hit) own manuscript, but would not prevent either from using his own. S. S. White Dental Co. v. Sibley (1889), 38 Fed. (C. C.) 751. "If he (def(;ndant) devised the same plan in ignorance of what the plaintiff had done, it is clear, we believe, that he has not in- fringed. ..." See also: Schwarz v. Wylic (Eng.) (1911), Times, Nov. 17; Reichart v. Saple (I'^ng.) (1893), 2 Q. R. 308. •■•- Morocco V. Fc.nddl, State of Wi.sconsin, (Circuit (!ourt, Fond du Lac County, opinion of Judge Chester A. Fowler, March 31, 1917. ^■1 Morosco V. Fendcll, supra. SUBSTANTIAL SIMI I-AKITV UV COINCIDENCK 575 Heart." Not only was tlio theme identical, but a nunilxir of the situations and the title as well were similar and the names of (he two chief characters were alike. The court, nevertheless, f(jund no infringement, as it was .satisfied that the defendant had conceived and written his play without having ever read, seen or heard of the plaintiff's drama. The law is expressed by the learned court : "Priority of conception and completion and produc- tion altogether do not give the plaintiff the right to enjoin the production of the defendant's i)lay, unless the latter was ba.sed or founded uj)on the former; unless it was copied from or made in imitation of it; unless the former was used in the production of it, so that the latter is a reproduction of the former; unless the latter was 'pirated' from the fonner. Even substantial similarity, founded upon coincidence, and not the result of piracy, direct or indirect, is insufficient to establish infringement (citing cases). This is stated of copp-ight matter, but with e(iual or greater reason it woukl be true of non-copyright etl matter. It is the taking and appro])riation by one person of the literary work of another that is jirohilMted. If one play is as much the original conception and the result of the original mental labor of the one producing it as another play is of its author, the authors are equally entitled to the fruits of their original labors, notwithstanding the works be similar. Tliis seems to me the common sense view of the matter." This principle, however, has been modified lately with respect to works protected under the CojnTight Act. The federal courts take the position that since sole and 576 THE LAW OF MOTION PICTURES exclusive rights are granted by the copyright, any inva- sion of them, whether made innocently through coin- cidence or otherwise, subjects the invader to an action by the owner of the rights. ''Defendant contends that in order to infringe a copy- right the defendant must have actually copied or pu-ated the production of the plaintiff, and not merely, while ignorant, have himself produced substantially the same thing. . . . "The cause now before me involves only the property right of the original composer in his copyright. The act in force when this copyright was issued (citing case) provides that the author of a musical composition, upon complying with the provisions of the Copyright statute, shall have the sole liberty of printing, publishing and vending the same. We are referred to no authority, and know of no reason for holding that the person to whom the right is secured may not maintain it by injunction against another person who threatens to invade it." '" The present condition of the law may be said to be that where the complainant relies upon his common-law rights, he must establish piracy. Wlicro, however, the action is based upon a statutory copyright, it is suflicient ^*Hein v. Harris (1910), 183 that, under the English Copyright Fed. (C. C. A.) 107; Jiff'g 175 Act of 1911, where the snnilarity Fed. 875. in hoth works is by coincidence liut see: Corelli v. dray (Eng.) there is no remedy under the (1<)13), Times, May 21 , 22, 23, 24, act for infriiigcrn(>nt. June 5 and Nov. 21. This case To the sanu; elTect: Rohl v. takes the opposite view adopted Palace Theatre (Eng.) (1911), hy the Federal court in Uein v. Times, Nov. 14, 17. Harris. Here the court holds WHO MAY MAINTAIN ACTION, ETC. OU to show an invasion of such statutory rifiht. It is imma- tmal wlu'thcr sucli invasion has been caused l>y coinci- dence, accident (where defendant beUeves plaintiff's work to be in the public domain) or piracy. It is obvious that the copyrighting of a work confers at least this one advantage which is not secured under common law. Section 161. — Who may maintain action — Misjoinder of parties— Joinder of causes of action. Under the Act,^^ the action for infringement may be maintained by the proprietor of the copyright, and it is immaterial whether he is the proprietor of record or an assignee of the copyright whose assignment has not been recorded, ^^ since the section respecting the recording of assignments protects subsequent purchasers or mort- gagees for value, but has no reference to infringers. Of course, when the proprietor has not parted with any of the rights secured under the copyright either by way of sale or license, he is the only proper party plaintiff to the action. A frequent situation, however, that presents itself, is one where the ]iro])rietor has either made an assigimient or granted a license^ with respect to some of his rights, and the party who is injured by the infringement is not the cop>Tight proprietor, but on the contrar>', is his as- signee or licensee. "Section 2.'), sulxlivisiou (1)). '• AVif Fidion Co. v. Star Co. See also: Hanxr d- Bros. v. (1915), 220 Fed. (D. C.) 994. Donahue (1905), lit Fed. (C. C.) 491. 578 THE LAW OF MOTION PICTURES Although the law is clear that where an assignee of some of the rights is injured, he is a proper party plaintiff, together with the copyright proprietor, yet, where a hcensee has been harmed, the law is not entirely clear as to whether or not such licensee should be joined. It is well settled that a licensee cannot in any event sue in his own name alone.^^ It would seem, however, that where the rights granted to the licensee are infringed upon by the defendant, then such licensee may sue in his own name providing he joins in his action the legal owner of the entire copyright. Gaumont v. Hatch decided in 1913, seems to support the last mentioned rule.^^ There the Gaumont Co., owner of a " Wooster v. Crane & Co. London and suburbs. Defendants (1906), 147 Fed. (C. C. A.) 515. "It is the general rule that a mere licensee cannot in its own name sue strangers who infringe. Birdsell v. Shaliol, 112 U. S. 485. Here, however, the complainant is not a mere licensee, but has the full equitable title, and Wooster, Avho has the legal title, is one of the infringers and oc- cupies a position altogether hos- tile to the complainant." See also: New Fiction v. Slur (1915), 220 Fed. (1). C.) 994. Neilson v. Jlorniman (I'^ng.) (1909), 20 T. L. R. 188, C. A. Copyright owners of play granted plaintiff "the sole li- cense" to produce play for a period of one year except in produced the play at Manchester without having secured permis- sion of plaintiffs. Held, that as plaintiff did not hold an assign- ment of acting rights but only a " sole license" he had no title to sue in his own name. See also: Mackay v. Edwardes (Eng.) (1906), Times, Jan. .30, April 27. 38 Gaumont v. Hatch (1913), 20S Fed. (D. C.) 378. The lessor of a film and his lessees are all proper parties plaintiff in an action brought for infringement of tiie film. Young, I). J.: "It appears from the ;i]l('gations of the bill as aiuciided that the ( launioiit ( 'oiii- pany is the owner of tlie film and WHO MAY MAINTAIN AJTKJN, KTf .■>79 motion picture film, had leased coi)ies of the film to the other i)laintilTs in the action, Sciiwalm and Uothleder, for a specified period, and for exhibition within a limited territory. The lease provided for a return of the films upon the termination of the lease. The court held that the Gaumont Co. having a present existing beneficial interest in the films, and their lessees, were all proper parties ])laintifT to the action, under Equity Rule nine- teen, which provides that all persons having an interest in the subject in the action in obtaining the relief de- manded, may join as plaintifTs. tlui lessor and is entitled to have the lihn returned at the termina- tion of the lease. It is therefore interested in preventing by in- junction the removal of the film, or any copy thereof, beyond the jurisdiction of this court, as such removal into another jurisdiction, would result in the necessity of more and probably of a multi- plicity of suits. The lessees, Schwalm and Rothleder, are in- terested in preventing the ex- hil)iti()n of the film at any other place within the territory secured to them by the lease. They have a vital interest in the relief sought, lioth the lessor, the (laumont Company, and the lessees, Schwalm and Rothleder, are par- ties in interest, and, under the iiincfeenth rule in equity (I!>S I'wl. .x.wiii, 115 C C. A. .vwiii) are proper parties plaintiff. This ground of dismissal nmst there- fore be overruled. See also: Worlhiiigtun v. lially (1889), 40 Fed. (C. C.) 479. PlaintifT contracted with an au- thoress for the publication of her book. In violation of her agree- ment she subsequently allowed a newspai)er to print the book, and plaintilT l)rought suit to restrain the pajKT. Motion for preliminary injunction wius de- nied because the authoress who had an interest in the copyriglit should have been made a party to the action. See also: Mdcmilldn v. Dent (Kng.) (1900), Times, Nov. 8, 23 T. L. H. 4."). The proprietor and liis licensee may join as co- plaintitTs in the action. 580 THE LAW OF MOTION PICTURES The same rule in its converse application is illustrated in New Fiction Co. v. Star,^^ where the licensee of the "serial" rights in a dramatic composition brought the action in his own name against a newspaper which had published the work. The invasion was clearly of the licensee's rights. It was held that a mere licensee could not maintain an action in his own name for infringement of the copyrighted work, since the statute gave the right to maintain actions for infringement to the ''copyright proprietor." The court at the foot of its opmion, makes the following significant statement: "It will be understood that I am not passing on the question which would be presented if Goodman (the copyright proprietor) were a party plaintiff." Tully V. Triangle ^° holds that where the rights of the ^^ New Fiction v. Star (1915), mits alleged infringed upon Tally's 220 Fed. (D. C.) 994. play. Held that Espladiaii Pro- See also the cases referred to in ducing Company, had no in- the opinion: Jwk's Liedertafcl terest in the subject of the ac- Case, L. 11. (Eng.) (1907), 1 Ch. tion, hence an improper party 651; Emiiire City Aiu. Co. v. Wil- and bill multifarious. bou (1903), 134 Fed. (C. C.) 132. "From the foregoing it will be *'> Tully V. Triangle (1916), seen that the Espladian Produc- 229 Fed. (D. C.) 297. Com- ing Company is lh(^ exclusive j)lainant 'J'ully was the; author licensee to i)roduce the jilay of an original dramatic com- 'upon the stage by a company position which he duly copy- of players,' and that all other righted. Complainant l^spladian rights, such as motion jHcture Producing Co. was granted by rights, remain in and were re- Tully the (exclusive license to serv(>d by Tully, the author, produce Ihe play upon the stage When, therefore, the Espladian with living adors. Defendant Producing (Company became such produced a film which complain- licensee, it did so with the knowl- WHO MAY MAINTAIN ACTION, ETC. isi exclusivo lironsce arc not infringed by tho dofendant, lie is nut a proper party to the action. In some instances the courts have permitted an exclu- sive Hcensee of portions of the rights secured by the copy- right to maintain an action in his own name and alone against an infringer of the rights granted to liim. In Aronson v. FleckeTistein, the plaintiff, while an exclusive licensee of the American rights for a limited period, was })y the terms of his license empowered to bring all neces- sary suits for the protection of his rights, and copjTighted the work in order to safeguard his rights. It was held that not only was he entitled to maintain suit in his own name, but that he was the only one who could do so.^' cdRc that TuUy at any time and at any place could produce a so- called motion picture photoplay, and if Tully could do this, then, of course, any licensee of his could do the same. It seems to me entirely clear that the Es- pladian Producing Company has no right or interest in respect of the i)rescntatio!i hy motion pic- tures of 'A Hird of Paradise.'" See in this connection: Mencken V. Denville (Eng.) (Um), Times, Dec. 3. Held tliat the plaintiff who wa.s a grantee of the copy- right proprietor of the motion picture rights was not entitled to enjoin the |)n)iluction u{)on tlu; stagi' of a play under the same title although the owner of the copyright might have been en- titled to do .so. *^ Aromon v. Flcckensfein (188G),2SFed. (C. C.) 75. See also: Roberts v. Myers (ISGO), 20 Fed. Cas. No. U,\m (C. C). "The respondent is a mere wrong-doer who has in- vaded this copyright. ... It is (juite clear that this copyright being infringe*.! and in danger of further violation by a {x?rson who has no color of right, the true owner ought to have a remedy. But it is said that Boucicault (author) ought to be the complainant, or at least join with Uol)erts. Why so? His interest has not been in- vadtni or endangered, nor can 582 THE LAW OF MOTION PICTURES The equitable owner of a copyright is a proper party to an action for infringement. ^- Where the complainant has full equitable title to the copyright and the legal title therein is in one who is an infringer, who occupies a position altogether hostile to the complainant, the owner of the equitable title may maintain the action in his own name.^^ Where a licensee has an exclusive Ucense under the copyright for the entire term of such copyright the courts by analogy w^ith the rule followed in the case of patents will regard the license as an assignment and plaintiff will be permitted to sue in his own name.^^ the non- joinder of Boucicault in any way affect the defend- ant ... to require him then to be joined with Roberts would be an idle and nugatory act. ..." In this case it was held that the assignee of the exclusive right of representing a drama for one year in the United States could maintain suit in his own name. Hill V. Whaleyi (1914), 220 Fed. (D. C.) 359. An exclusive licensee of the dramatic rights of copyrighted cartoons was granted an injunction restraining the production of play wherein two characters impersonated the cartoons and used a luunhor of the phriuscs placed intlic mouths of the carto(m.s by the original artist. See also: Keene v. Wheatley (1801), Fed. Ca.s. No.7,M4 (C. C.) For a case where the court per- mitted Vie owner of a copyright in the words of a song, and not in the music, to sue for infringement, see: Francis v. Oliver (Eng.) (1907), Times, March 20. *2 Historical Pub. Co. v. Jones (1916), 231 Fed. (C. C. A.) 638. " Wooster v. Crane (1906), 147 Fed. (C. C. A.) 515. Citing: Littlefield v. Perry (1874), 21 Wall. 205; Waterman v. McKenzie (1890), 138 U. S. 252, 11 Sup. V\. 334; Excelsior v. Pacific (1901), 185 U. S. 282; 22 Sup. Ct. 681; Root v. Railway (1881), 105 U. S. 189; Little v. Gould (1852), 15 Fed. Cas. 604 (C^ C.) No. 8,395; Ruggks v. Eddy (1872), 20 Im><1. C'M. 1,317 (C. C.) No. 12,117. ** Fitch v. Youiuj (1911), 230 Fed. (D. C.) 743. WHO MAY MAINTAIN ACTION, ETC. r>83 Where the rights conveyed by the author did not give the right to copjTight, the one obtaining such rights may not copyright the work or maintain suit on the copjTight for its infringement.''' It was held that where the action was bnjught )jy the legal holder of the copyright, although the beneficial ownership thereof was in another, the defendant could not take any advantage of the trust relation existing between such legal owner and some third party.""' As to unpublished works, not copyrighted, it was held in Tarns v. Witmark;*' that the "exclusive owners of the right to i)roduce and perform" an operetta in the United States could maintain an action in their own name without joining their assignors, the coiirt following the rule laid down in an earlier case where the same situation was presented.'^ This rule has Hkewise been followed in the federal courts.^' *<-Saake v. Lederer (1909), 174 to represent the same in the New Foci. (C. C. A.) 135; Rev. 100 England states, plaintiffs were Fed. (C. C.) 810. gnuited an injnnction and ac- « Hanson v. Jaccard (1887), 32 counting for damages. Fed.. (C. C.) 202. *"> Guldimrk v. KrcUiig (ISSS), "Tarns V. Wilmark (1900), 30 35 Fed. (C. C.) 661. Plaintiffs Mi.sc. (N. Y.) 293; 63 X. V. Supp. ac(iuircd the .Vmcrican rights to 721, aff'd 48 A. D. (N. Y.) 632; 63 the oiKjretta " Xanon." Subse- N. Y. Supp. 1117. (luently the authors published *» Palmer v. DcWitt (1872), 47 tiic piano-score in ICurope, and N. Y. 532. defendants making their own See also: Tompkitus v. IlaUcck orchestration, produced it over (1882), 133 Mass. 32. Where here. an unpublislied and uncopy- "The authors certainly could righted play wius a.ssigned (o not have soUl and conveyed any plaintiffs with the exclusive right right to a third party to perform 684 I^HE LAW OF MOTION PtCTUUES From the above it is apparent that the rule as to the join- der of licensee and proprietor is not stringently apphed in the state or federal courts with respect to unpubUshed uncopyrighted works, while it is strictly adhered to in cases involving statutory copyright infringement. The reason is probably found in the wording of the Copyright Act which gives various remedies to the "copyright pro- prietor," thereby compelling such proprietor to be brought in. There being no such hmitation in common-law works, the courts are disposed to permit greater freedom of action on the part of the licensee and a more liberal construction of the remedies open to him. Misjoinder must be raised either by way of motion or by way of defense in the answer. Failure by the de- fendant to do so, will preclude him from raising the ques- tion on appeal.''" It has been held that an action brought to restrain the infringement of a patent may be joined with one for unfair competition where the jurisdictional facts are pres- ent as to the latter cause of action.''^ We see no reason their operetta in America, so as don. Subsequently Taylor sold to cut off the prior exclusive the exclusive rights for the United right conveyed to ( loldiiiark and States for 5 years to the plaintiff, ( onroid. If tlioy could not cut Miss Hatcinan's husband, who them off by subseciucnt sale, wo brought the play to this country, do not perceive how they could and sued to enjoin (l(>fendant d(j it by a subse(|ueiit dedication from infringing. Held, that ])lain- to the public by pul)iication." tilT could maintain the action in Crowe v. Aiken (INTO), 2 Biss. his own name. (C. C.) 208. One Tom Taylor <>» llislorical Publ. Co. v. Jonea of London wrote a play for Miss (11)16), 231 Fed. {C. C. A.) 638. Hatcman, a famous actress. TIk; " Farmers IlniuUi Wagon Co. v. j)lay was first produ(;c(l in Lon- yimctr (lUlC)), 23() lu'd. ((.'. C. .\.) WHERE ACTION MAY HE BROUOHT 585 why the saino slumUl not liold true when the infringe- ment of a copyrij^ht is involved instead of that of a patent. An instance where such a situation may arise is when not only the l:)ody of the work is appropriated, but the title as well. Since the copyright covering the work does not extend to the title, the proprietor is not entitled to enjoin the use of the title in his infringement suit unless he sets forth another cause of action based upon the unfair use of the title. A complaint containing a count in infringement and another in trespass has been held to be demurrable." Section 162. — Where action may be brought. Under Section thirty-four of the Copyright Act, all actions, suits or proceedings arising under the copyright law "shall be originally cognizable by the Circuit Courts of the United States, the District Court of any territory, the Supreme Court of the District of Columbia, the Dis- 7:U. "Tlic bill seeks to restrain See also: Mchuloo v. Miisson infringement of the patent and Book Co. (Can.) (1915), 3') O. also to restrain unfair oomijeti- L. R. 42. tion. These are properly joined, '•" Ohman v. City of \ew York indeiKMident (.f tlie (juestion of (1909), 1G8 Fed. (C. C.) 953. citizenship. Adams v. Folgcr Defendant was sued for haviuR (1903), 120 Fed. (C. ('. A.) 2G0; printed in the City Record nm- Lwimgs V. rnijson (1913), 2()() tilated copies of i)laintifT's maps. Fed. ((■. C. A.) 01. The causes of action sought to "Appellant is entitled to have unite an action for infringement its patent sustaincvl, infringe- under the copyright laws with ment thereof and unfair comiM'ti- an action for trespa.^one liable who in any manner has helped to create the in- "* Glenville v. Selig Polyscope Co. (Eng.) (1011), 27 L. T. R. 554. Defeiulants, who were producers of motion pictures, fitted up a room at tlieir place of business and issued advertisements to the public to see films showing certain scenes of a play which plaintiffs alleged to infringe their rights. Held, witliout deciding on tlie infringcmont, that such a room was not a i)lace "of dramatic entertainment" within meaning of Section 2 of the Dramatic Copyright Act, IKili, inasmucli as tlie |)ublic were merely in- vited with the object of getting them to purchase the films. «" Karno v. Paihc Frnrs (I^iig.) (1908), 100 L. T. 260; 53 S. J. 22i>; 25 T. L. R. 242. Defendants maimfactured films whidi repro- duced plaintiff's music hall sketch as "living pictures." Held, as- suming the plaintiff's sketch to be a "dramatic piece" or entertain- ment within tlie meaning of § 1 of the Dramatic Copyright Act of 18^33 the defendants did not "cause to be presented" the plaintiff's sketch within the mean- ing of § 2 of the Act. «' //«r/;cT V. Shop pell (1SS6), 26 Fed. (C. C.) 519 (1886), 28 Fed. (C. C.) 613. "The law will not assume without evidence or simply upon jm)of that the defendant sold the plate to the proprietors of a newspaper, that he inteiuU'd to authorize a viola- tion of the plaintiff's rights." 590 THE LAW OF MOTION PICTURES fringing work.^- Thus, it would seem that the manufac- turer of a film, its releasor or distributor and its exhibitor, would all be liable whether they had acted innocently or otherwise, and this liability exists even where the in- fringing acts were committed by an employe.*'^ On the other hand, it has been held that an employe is not liable for an infringing act of his employer, where the act is done without his knowledge and contrary to his express instructions, he being an officer of the defendant.^^ ^^Belford v. Sciibner (1892), 144 U. S. 488; 12 Sup. Ct. 734; Gross V. Van Dyke (1916), 230 Fed. (C. C. A.) 412. See also: Stevens v. Gladding (1854), 17 How. 447. 65 Trow Directory v. Boyd (1899),97Fed. (C.C.)586. See also: West Pub. Co. v. Lawjers Co-op. (1897), 79 Fed. (C. C. A.) 756. Schumacher v. Schwencke (1887), 30 Fed. (C. C.) 690; re-affirming, on final hearing, (1885), 25 Fed. ((!. C.) 466. "It is clear that the defcMidatits are wrongdoers. They have; invad(!d the complainant's territory. They have copied (he painting. It i.s immaterial how this was ac- complished, whether dinM;tly or indirectly. . . ." Gilmorc v. Anderson (1889), 38 Fed. ((\ ('.) 846. "Some of the material from Gilm(jre's book so used by Alger (defendant) had previously been used by others, without right, and was taken by him from their works. . . . These acts of others would not however remove the protec- tion of the copyright, nor furnish any excuse for him." Although all those who had helped to create the infringing work arc liable as infringers the courts will not recjuire those who did not share in the profits to account for the same. They will, however, be enjoined and re- (juired to i)ay complainant's dam- ages, (iross V. \'tni Dyk Grarure Co. (1910), 230 Fed. (C. C. A.) 412. ^* Stuart V. Smith (lS9r)). OS Fed. (C. C.) 189. See also: French v. Grajory (Fng.) (1893), 9 T. L. R. 548. The miiiiMgcr of tlic tiieatn" was held not lial)lc, the proprietor WHO IS I.IABLK — INTENT rm Knowledge is at best a diilicuU matter t lishcd, the intention is immaterial. Reed v. IlollUlmj, 19 Fed. 32.^)." " The evidenil" shows that the defendants bought the pictures from complainants, furnishwl them to the photogravure com- pany, ordered the copies made, and gave general directions as to how the work should be done. The tlefendants j)rocured the in- fringing act to be done. They are therefore liable as joint Uivi feasors. Esles v. Worlhiiiglon (1887), 30 Fed. (C. C.) 465; Rob. Pat., Sec. 910." Wcalhcrby & Soius v. IrUeni'l Horse Agency (Fng.) (1910), 2 Ch. 297; 79 L. J. Ch. 609; 102 L. T. 850; 26 T. L. R. 527; Carl- ton niustralors v. Coleman (Eng.) (1910), 27 T. L. R. 05; Smith v. Daily News, Ltd., (Eng.) (1910), Times, Dec. 2. Where the inanuscript has been submitted to the infringer, that fact may be taken into considera- tion. Maxwell v. Goodwin (1899), 93 Fed. (C. C.) 665; Bird v. Thanhamer (1911), lt)0 111. App. 653; Fraser v. Edwardes (Eng.) (1905), Times, March 23, 24, 25, 28, 29,30. *« Taylor, Jr., v. Gilman (1885), 24 Fed. (C. C.) ^32; .McDonald V. Hearst (1899), 95 Fed. (D. C.) 656; Schrciber v. Sharpless (1881), 6 Fed. (D. C.) 175. 592 THE LAW OF MOTION PICTURES This present trend is illustrated in Haas v. Feist,^'^ where, notwithstanding the innocence of one of the de- fendants, the court decreed on account of profits and damages as against him, for the Copyright Act 'imposes upon everyone the duty to learn the facts conveyed by the notice." An author may be guilty of infringement of his own work.^^ When a work, including the copyright therein, is sold, the vendor is liable for any infringement of such work by himself and he will not be permitted in an action for such infringement to maintain the defense that the work is not copyrightable.^^ "Haas V. Feist (1916), 234 Fed. (D. C.) 105. «8 George T. Birel Co. v. Welsh (1904), 131 Fed. (C. C.) 564. ^^Lavin v. Birch (Eng.) (1903), Times, Apr. 4; Ilardacre v. Arm- strong (Eng.) (1904), Times, Oct. 27. See generally the line of cases to the effect thai a licensee under a patent inll not be permitted to question his licensor's title in an action for royalties: Nilhon v. l)c Haven (1900), 47 A. D. (N. Y.) 537, 62 N. Y. Supp. 506; Saltus V. Hrdford Co. (1S92), 133 N. Y. 199; 33 N. E. 51H; Baylies v. Bullock (m)0), 32 Misc. (N. Y.) 21H; 66 N. Y. Supp. 253; reversed on other grounds (1901), 59 A. D. (N. Y.) 576; 69 N. Y. Supp. 693; Marston v. Swett (1876), 66 N. Y. 206; Sizer v. Ray (1881), S7 N. Y. 220; Maitland v. Company (18<)4), 7 Misc. (N. Y.) 408; 21 N. Y. Supp. 965; Montgomery v. Water- bury (1893), 2 Misc. (N. Y.) 145; 21 N. Y. Supp. 631 ; aff'd 142 N. Y. 652; 37 N. E. 569; O'Brien v. Jones (1883), 91 N. Y. 192; Mc- C.iffen V. Baird (1875), 62 N. Y. 329; Akin v. Meeker (1894), 78 Hun, 387; 29 N. Y. Supp. 132; afT'd 149 N. Y. 610; 44 N. E. 1120. And ius to !i play see: Hart v. Fox (1917), N. Y. Law .lournal, August 24; Outcaull v. Bonheur (1907), 120 A. D. (N. Y.) 168; 104 N. Y. Supp. 1099. WHAT MUST HE AI.LK(;KI) AND PkOVKI) i'.ia A licensor who oversteps the prant of his Hcense is as much an infringer as a stranger."" To illustrate, a [)arty who is pjiven the exclusive right to exhibit a film for a limited time within a specified territory, is guilty of in- fringement if he exhibits the film or causes it to be ex- hibited in other territory. Section 164. — What must be alleged and proved. As the action for infringement is purely statutory, the complaint must allege every fact necessary to show that complainant is entitled to maintain his action under the Act.'i '''Duck V. Mayer (Eng.) (1892), 8 T. L. R. 339. Where defend- ant liad overstepped the grant of her Hcense in producing a play, held hable for infringement. See also Section 75. "iSadte V. Lederer (1909), 174 Fed. (C. C. A.) 135; Dc Jongc v. Brenker & Kcsulcr (1911), 191 Fed. (C. C. A.) 35; Lederer v. Saake (1909), 166 Fed. (C. C.) 810; Freeman v. Trcute Reg. (1!K)9), 173 Fed. (C;. C.) 419; Mcrriam V. United Dictionary (1!)05), 140 Fed. (C. C.) 768; Merrill v. Tice (1881), 104 U. S. 557; Osgood v. Aloe Inalrxunent Co. (1897), 83 Fed. ((\ C.) 470; Jonea v. Van Zandl (1846), 5 How. 372; Pierce V. Werckmeister (1896), 72 Fed. (C. C. A.) 54; Boiicicaidl v. Hart (1875), 13 Blutch. (C. C.) 47; Empire City v. Wilton (1903), 134 Fed. (C. C.) 132; Banks v. Manchester (1888), 128 U. S. 244; 9 Sup. Ct. 36; Trow CUy Directory v. Curlin (1888), 36 Fed. (C. C.) 829. Chicago Mus. Co. v. BiUler (1884), 19 Fed. (C. C.) 7.58. In an action for tlie infringement of a copyright the complaint must set forth the various steps by which complainant accjuircd that right. " The i)laiiititT must show that he ha.s taken the stcf)s required by law." This rule differs from the rule in patent c:uses because there is a presumption in patentii, from the issuance of the letters patent, the examination before the commis- sioner and so on. No procedure 594 THE LAW OF MOTION PICTURES The complaint must specifically allege the necessary steps taken to secure copyright, otherwise the bill is demurrable.'^^ As the rule has been expressed: is necessary to be gone through in copyright other than the formal deposit, and under the old Act, the fiUng of the title. Bosselmwi v. Richardson (1909), 174 Fed. (C. C. A.) 622. "Such a certificate (a copyright certif- icate) is wholly unlike letters patent, which are issued under § 4S84 after a quasi judicial ex- amination of the applicant's rights, and which grant him, his heirs, or assigns, the exclusive right to make, use and vend the invention patented. A patentee accordingly makes a prima facie case when he puts his letters in evidence and proves infringe- n)cnt. The owner of a copyright, on (he oilier hand, is bound to prove compliance with all the tildiidori/ conditions, viz.: in this case that his iussignor was the author and that ncitlicr i»c nor his assignor had ptihlished the j)airiting before cojjyright. 8 Pet. r)!);i, 009; 104 U. S. 557, 96 Pet. 21.'i. The certificate of the JAbra~ rian of Congress is no proof of compliance with these conditions^ S(!C also: Patterson v. Ogilvie Pub. Co. (1902), 119 Fed. (C. C.) 451. Where the certificate de- scribed the author as "of New York" and the author testified that he was a resident of New York and that he mailed the copies of the work from that locality. Held sufficient evidence showing that author was a citizen of the United States. See also: Webb v. Powers (1847), Fed. Cas. 17323 (C. C). An allegation of citizen in a bill of complaint, not denied by the answer is sufficient, and no other evidence on that point is neces- sary. See generally on demurrer or motion to dismiss bill of complaint: Crown Feature Film v. Belts (1913), 206 Fed. (D. C.) 362; Henderson v. Tompkins (1894,) 60 Fed. (C. C.) 758; Bo^icicavll V. Hart (1875), Fed. Cas. 1692 (C. C); Alwill V. Ferrell (1846), Fed. Cas. 040 (C. C), Farnu:r v. Calvert (1872), Fed. Cas. 4651 (C. C); Trow City Directory v. Curtin (1888), 36 Fed. (C. C.) 829. ^* Ford V. Blaney Amuse. Co. (1900), 148 Fed. (C. C.) 642; Hucbsch V. Christ (1914), 209 WHAT MUST Jge the dejiosit of copies and registration of the work, the l)ill is denmrrable."^ ■>*BulUnger v. Mackcy (1879), 15 IMatch. (C. C.) 550; Fed. Cas. 2,127, p. G51. "I next notice the point made, that the plaintiff has not produced proper evidence to show himself the author or proprietor of his works, within the meaning of the copyright laws. The argument here is, that no one but the plaintiff himself can IcRally establish the fact that the plan, arrangement, and combination of his works originated in his brain. But, then; is evidence showing that the j)laiiitilT, by his own labor and that of persons employed by him, and working under his direction, gathered together from various original sources the material of his book; that the manuscript in which the matter was arranged wa.s partly in his handwriting; and that from the manuscript the work was printed for him at his expense. It was not neces.«!ary that the.se acts of the plain- tiff should be proved by the testi- mony of the i)laintilf. The testi- mony of any person who saw them done is primary and direct e\'i- dence of their having been done, and, ii\ the absence of any testi- mony to tiie contrar>', estab- lished the fact that the plaintiff gathered together information conveyed by his book, arranged that information as it apjxiars in the book, and caused it to be printed in that form. The acts of the plaintiff thus proved to have IxH'u ilone in preparing his work are those of a compiler. A compiler is an author, within the meaning of the constitution and the copyright laws. . . ." But .see in this connection: Reed v. Canisi (1845), 20 Fed. Cas. No. 11,(>42 (C. C). ■»A'. }'. Times v. Star Co. 598 THE LAW OF MOTION PICTURES After the obtaining of a temporary restraining order, it appearing that two copies of the work had not been deposited in the copyright ofhce or in the mail addressed to the Register of Copyrights, the coiu-t held that it had no jurisdiction to maintain the action.^'^ The Certificate of Copyright Registration is prima facie evidence of the facts stated therein under Section fifty-five of the Act, and has been so held by the courts.^^ The proper method of proving the exhibition of a (1912), 195 Fed. (C. C.) 110; N. Y. Times Co. v. Sun Print- ing & Pub. Ass'n (1913), 204 Fed. (C. C. A.) 586; Davies v. Bowes (1914), 219 Fed. (C. C. A.) 178. Caliga v. Interocean Newsp. Co. (1907), 157 Fed. (C. C. A.) 186. But, on the other hand, where complainant had registered her paiiiting twice she lost all copyright therein. It follows that it is just as dangerous to do too much as too little in the regis- tration for copyright. »"iV. Y. Times Co. V. Star Co. (1912), 195 Fed. (C C.) 110. Where complainant had obtained a restraining r)r(ler on March 8th, hut had not mailed two copies of the work to W;ushington, hcUl that tlic court liad no juris- diction to rnaiiilain the action, as such deposit is a condition precedent. 81 Chatauqica School v. NaVl ^School (1914), 211 Fed. (D. C.) 1014; reversed in (1916), 238 Fed. (C. C. A.) 151, on the ques- tion that a compilation of methods for giving hypodermic injections did not disclose originality. Ilmbsch V. Christ (1914), 209 Fed. (D. C.) 885. It would seem that a certificate of the copyright office showing deposit of two copies of the work is competent evidence of such deposit. See also in this connection: Merrell v. Tire (1881), 104 U. S. 557; Saakr v. Lcderer (1909), 174 Fed. (C. C. A.) 135; lirifonl V. Scribncr (1891), 144 U. S. 488; 12 Sup. ('t. 734; Callaghan v. Myers (1888), 128 U. S. 617; 9 Sup. Ct. 177; liosscbuan v. Rich- anhon (1909), 171 Fed. {C. C. A.) 622; Ledcrer v. Smikc (1909), 1()6 Fed. (C. C.) 810. nil.L OF PARTICULARS 699 motion picture is not by thf production of the film, l.ut by a witness who has seen it reproduced.*'- Section 165. — Bill of particulars. The defenduut in un infriugcnient suit is entitled to a bill of particulars setting forth in detail the specific parts of complainant's work, which complainant claims to be infringed.^'' Equity rule twenty expressly gives this right: "A fur- ther and better statement of the nature of the claim or defense or further and better particulars of any matter stated in any pleading may in any case be ordered upon such terms as to costs and otherwise as may be just." Where the action is based upon a number of copyrights, complainant will be rocjuired, upon defendant's motion, to separately state and number his causes of action.'*^ And no affidavit will be required on a motion to separately state and number, as that can be determined from the inspection of the pleadings ahme.*'" "-G/i/M V. Western Feature Film Mnxwell Steel Vault Co. v. Nat'l Co. (Eng.) (1910), 1 14 L. T. :i-y\, Casket Co. (H)13), 205 Fwl. (D. C.) 32 T. L. R. 235. 522; Muser v. Robertson (1883), ^*Liddell v. Copp-Clarh Co. 17 Fed. (C. C.) ,500; Cause v. (Can.), 19 O. Pr. :i:i'2. In an Knapp (1880), I Fwl. (C. C.) action for (•<)pvri^;llt iiifrinKcincnt 2!)2; Foster'.s " Fi'dcral IVaf- di'fcntlant \v:ux entitled to a l)ill tice," 5th ed., §§240-241. of particulars .showing the date "* Dcubert v. City of Xew York of registration of the plain- (1!)0S), 126 .V. D. (X. Y.) 359; tifT'.s eopyriglit, and showing 110 N. ^'. Sui)p. -HXi; Harrington what part, of the tlefendant's v. Stillman (1. Construction of forfeiture an16), 221> 323, §18, U. S. Compiled Stat- Fed. (D. C.) 297. The court utCiS 1916, § 1243b, p. 1963. holds that rule two of the Su- 606 THE LAW OF MOTION PICTURES or irreparable injury, loss or damage will result to the complainant before notice can be served and a hearing had thereon.^*' Here as well, complainant must give security in a sum fixed by the court or judge granting the order. ^^ The injunction pendente lite and the temporary re- straining order are binding upon the parties to the suit, their officers, agents, servants, employes and attor- neys or those in active concert or participating with them, and who shall by personal service or otherwise have received actual notice of the same.^^ The statute prescribes the requisites of the order for the injunction or restraining order, and care should be taken that the statute be hterally comphed with. ^3 Where an injunction will work very serious injury to the defendant, and the damages of complainant, if he should sustain his cause of action, may be computed with some degree of certainty, the court may in its discretion grant an injunction pendente lite, but suspend the opera- tion of the same upon the defendant filing an undertaking in a specified sum. The court may also attach furtlier conditions precedent to the suspension of the injunction. It occasionally requires the defendant in such cases to file statements at specified periods showing gross sales '"Act Oct. 15th, 11)14, Chapter " Act Oct. 15th, 11)14, Cliapicr 32.3, § 17, U. S. Com[)ilc(l Stat- 323, § 10, U. S. ('ompilcd Stat- utes, 191(5, § 1243a, p. 1!)()2. utes, 1«)10, § 1243c, p. 1!)03. " Act Oct. 1.5th, 1914, C;haptcr " Act Oct. 15th, 1914, Chaj^ter 323, § 18, U. S. Comphed Stat- 323, § 19, U. S. Compiled Stat- utes, 1916, § 1243b, p. 1903. utcs, 1910, § 1243c, p. 1903. u >. ^ c i5 f;! o rt 5 re c ^ :? o (/■' •- •- • o .h j: c c: -r: u -^ u= a; ; ^-§- |-|, s - = ,_! 1, CO u ~ :r — ^ n I— ^ I I o x: ^ ' 1^ n, 11 iJ t ^ ■^ '3 ■^ -^ u o (/> — I- — •f- to ^ ''^ -r t = t a:: x £2 « b/i. a ^ ti .E _ So-' ^ o ^ H o ^. ;^ o .„ u c .!^ -^ = J 5 •§ o _ y r- T ^ »- ^ -- -'so. c.tr o " '^ e: ^ rt > '^' re t- J= U ^ •-> •- o i: u -C i: ^ U 'J - I. - .. ^ 5 y- 25 - ^ ^ ^ ^ . u ^ . _ lUlji»:|-|| i. >^t i g o ^ ^ tfl 1^ •r^ I? a. "I:: 'y t^ o '-^ O o <- u ■" >» c ' ''- '2 . ^- z - •* '^ n S-' o cr; O O in > 9 n r 7", PRELIMINARY INJUNCTION 607 or receipts derived from the exploitation of the alleged infringing; work." It has been said that the real basis for th(^ granting; of injunctions pendente hte is to maintain the statua (JUO.' ' Laches of the complainant will bar his right to a tem- porary injunction. But laches must not be confused with mere lapse of time. It is the element of time in conjunction with the element of knowledge which goes ** BuoHcy V. Kmpire (1915), 224 Fed. (I). C.) 646. A motion for i\ tciiiponvry injunction wivs granted in tlie case of nn in- fringement of a musical composi- tion, l)ut till' injunction was suspended upon the defendant filing a bond in a specified sum, and also statements semi- monthly showing gross sales and receipts therefrom. See also: Hubbard v. Thompson (1882), 14 Fed. (('. ('.) GSi). '&Lrtf j)rof- its and damages for infringe- ment within tlie tenn of the patent. Demurrer to l)ill was sustained, the court liolding tliat phiintifT had an adetjuate remedy at hiw for his damages. ^Wcat PtdA. Co. V. Edward Thompsion Co. (19()S), 1.57 Fe/«T (1892), 144 U. S. 4S8; 12 N. K. 255; Waile v. O'Ncil (1890), Sup. ('t. 734; aast v. F(dk (1893), 76 Fed. (C. C. A.) 408; Andrm v. .54 Fed. (C. C. A.) 890; Stevens v. Berkshire Co. (1900), 147 Fed. CaJ/y (1854), Fed. Ca.s. No. 13,-395 (C. C. A.) 76; New York City (C.C.). V. Pine (1902), 185 U. S. 93, ^^ K right propriotor from siicli infriiif:;iMfi; makor and his mcii- cit's for lh(> distribution to cxliibitors of such infringing motion picture may not exceed the sum of five thousand dollars nor be less than two hundred and fifty dollars. But the foregoing exceptions do not do])rive the copy- right i)r()j)ri('t()r of any otlior remedy given him under the Act and, here as well, the limitation ^s to the amount of recovery does not apply to infringements occurring after actual notice. ^"Plaint ilf is entitled to damages down to the date of the trial." The rule as to profits under the present Act is strictly enforced.-^ One who infringes does so at his peril, and stands in danger of being compelled to turn over all his profits to the comjilainant. And this is so no matter how great the dis]xirity in the nature of the respective works, '-■'■ llardacrv v. Armstrong (Kiig.) (I5)(M), Times, Oct. 27. ^niaax V. Fcid (19 IG), 2;U Fed. (D. C.) 105. "The plaintilT's right to dainage.s ngiiinst the (Uv fendaiit Feist, reganlless of its innocence, is unciuestionable. Gfoss V. Van Dyk Gramire Co., 230 Fed. 412. Ami in spite of some hmguage in tliat opinion looking to a (UtTerent rul(> for profits I think the same .should a|)ply to them as to damages. When, as in coinright, the law provides a form of notice, it im- poses upon everyone at liis peril the (lutv to learn the facts con- veyed l)y the notice. Without some such rule it could not be a tort innocently to copy a copy- righted work, because it could not be said that among the rea.son- able results of the defendant's acts was comprlsetl an infringe- ment. It becomes a tort, only when the statute imposes a duty on everyone to advi.se him.self of \]\o copyright. I cannot .s(h> why there should be any differ- ence Ixjtween damages anil profits in this respect." S(H' also: niicbsch v. Christ (H)14),2()!» iM'd. (I). C.)885. 614 THE LAW OF MOTION PICTURES no 4iiatter how big a production defendant has made, nor how small and insignificant the complainant's copy- righted work.-^ It does not matter that only a portion of the defendant's work infringes. He must pay over all his profits in the entire work, especially so in the case of dramatic composi- tions, where only a small portion of the work infringes.-^ The courts will not attempt to discover what portion of the profits is derived from that part of complainant's work which was made use of by defendant.-^ Although the copyright proprietor is prima facie en- titled to an account of profits and damages, situations may arise, however, where, because of some act of omis- sion or commission equity will not give the complainant such relief. Where a copyright proprietor stands by and permits an infringer to expend large sums of money in exploiting the infringing work, with a view to later appropriating such profits, he will not be permitted to recover any of the profits derived by the infringer after the time of his discovery of the infringement.''" And where he is guilty of laches, he will not be awarded an account of profits or damages, although he will receive his injunction.'" " Damv. Kirk La Sfielk (1910), ghan v. Meyers (ISSS), 128 U. "S. 17.') Fed. (C. C. A.) 902. 617; 9 8up. Ct. 177; lidfnrd v. Soe also: Cnllmjhnn v. 'Meyers Srrihnrr (1892), 144 U. S. 488; (1888), 128 11. S. 017; 9 Sup. Ct. 12 Sup. (X 7'M. 177. "'//ar/.s- V. Fn'M (1916), 2;{4 ^ Brady v. Daly (IS!)!»), 175 Fed. (I). C.) 105. U. S. 148; 20 Sup. Ct. 62. ^' Woosler v. Crane iK: Co. ^* Dnmv.KirkLaS/wllriUnO), (1906), 147 ImvI. (C. C. A.) 175 Fed. (C. C. A.) 902; Calla- 515. FINAL HEARING Ol.') The maxim that eciuity will not aid a coniplaiiiuiit who comes into court with unclean hands applies as well in an action brought for infringement of copyright. ''-' *^ Harms v. Stern (1010), 2;U Fed. (C. C. A.) 645. Vacating former order of the Circuit Court of Appeals reported in 229 Fed. 42 and uflinninp; order of District Court reported in 222 Fed. ')Hl. A contract wivs made between defendants Harms and one Rom- hQTg whereby Rondierg agreed to assign to Harms all musical com- positions which he would write for a specified number of years. Romberg sold one of his musical compositions, written during the period of the (Contract, to the com- plainant Stern, who copyrighted the song. Defendants Harms published the song and this action wa.s brought for infringement of Stern's copyright. Relief Wivs de- nied to Stern upon the ground that they as assignees of Romberg stood in his shoes and tliat he, having been guilty of ini(iuitous conduct would not be aided by a court of ecjuity; that the fact that an injunction was ivsked for to protect a copyright did not take the caijie out of the general i)rin- ciple that a complainant was rc- (luired to come into equity with clean hands. " In our opinion the plaintiffs did n(jt come into court with clean hands. Their misconduct relates to the matter now in litigation. Their right is the right of Romberg and the hitter's misconduct is for tlie purposes of thi.s suit theirs. Having agreed by a binding contract to a.ssign this song to these defendants, he has not done as he agreed, but ha.s repudiated the legal and moral obligations which the agre<>- ment imposed upon him. In doing so he has committed ini(iuity as resjx^cts this copy- righted song and the relation of these defendants thereto. .\nd with his hands thus unclean lie ha.s no standing in a court of ecjuity in a.sking an injunction to restrain these defendants from exercising a right which he bound himself to give exclusively to them. As the plaint ills stand in his shoes we must decline to grant them what we could not grant to Romberg." See Kerr on Injunction (r)th Ed.), 413. Slin{)sby v. Bradford Truck Co. (Fng.) (IDOo), W. N. 122. 616 THE LAW OF MOTION PICTURES This need not be pleaded as a defense in order to be avail- able; the court may of its own motion refuse relief to a complainant where the record discloses the unconscion- able act.^3 But it must be remembered that the maxim applies only where the misconduct is in connection with the matter in htigation.=^^ And where the court refuses upon final hearing to give relief to complainant because of the immorality of com- plainant's work it may nevertheless refuse to award dam- ages to defendant upon an undertaking given by com- plainant upon the issuance of a temporary restraining order, where defendant has in fact mfringed complainant's work.^^ Under Section forty of the Act the prevailing party is entitled as a matter of right to full costs except in actions A catalogue which, in violation of the law, misrepresents articles as having been patented, will not be protected. Dames v. Bowes (1913), 209 Fed. (D. C.) 5.3, aff'd 219 Fed. 178. Where an article, which is fiction and comes from the imagi- nation of the reporter is held out as a news item in a newspaper, a copyright of tlie newspaper does not include the alleged news item above referred to. Any- one of the public may thereafter make use of the staUments made in the news item, for the purpose of lit<'rary develop- ment. See also: Wright v. Tullis (Eng.) (1845), 1 C. B. 873, where a publisher pretended that a copy- riglited work was a translation from- a well known foreign writer, when in fact it was the original work of a native. It was held that such pretense vitiated the copyriglit; and see: Tribune Co. v. Associated Press (1900), 116 Fed. (C. C.) 126. ^' Benlley v. Tibials (1915), 223 Fed. (C. C. A.) 217. ^*Iientley v. Tibbals (1915), 223 Fed. "(C. C. A.) 247. " Broder v. Zeno Mauvais Mmic Co. (1S98), 88 Fed. (C. C.) 74. FINAL HEARING or 1)r<)iight ])y or against the Unitod States or any officer tliereof, and the court may award a reasonable attorney's fee as part of the costs.'*' '".S/rrKw.s V. Perm Printing (t* Publishing Co. (1915), 220 Fed. (D. C.) 977. "Under the cir- cumstances in tliis case the com- plainant is entitled to reiison- able attorney's fee as part of the costs under the provisions of section 40 of tlie Act. If in tin; answer the defentlant had ad- mitted that tlie complainant was entitled to the relief granted herein, tus was conceded at tlie trial, it is cjuestionaljle whether an attorney's fee would have been allowed. The aiiswer, however, compelled the complainant to sus- tnin hij proof its right to any relief whatcrer. lliuler these circum- stances, taking into consideration on the otiier hand, that the issues involved are clearly defined and settled and raise no intricate questions of law, an attorney's fee of seventy-five (.'575.00) dol- lars is awarded as part of the costs." Hendricks v. Thomas Pidilish- ing Co., N. Y. Law Journal (1917), April 18 (United States Circuit Court of Appeals —Second Circuit), JuiIm;*' llou^h in allowing; twenty-five hundred (S2,r)00.00) dollars counsel fee .said: "It ha.s often been held that allowance of coun.sel fees is a matter peculiarly within the dis- cretion of the court awarding the same, because that court can (and always does) proceed up09. Hcuhsch v. Crisl (C. C.) 451. (1914), 209 Fed. (D. C.) SS5. ^2 1'ntlcr.wn v. Ogilvic Pub. Co. " Patlemm v. Ogilrie Pub. Co. (1902), 119 Fed. (C'.C.) 451. The (1902), 119 Fetl. (C. C.) 451; decision in this case provided Milh v. Stamlard Music lioll,2'2:\ tlint complainant might take a Fed. (D. C.) S49; atT'd Maitli. linal (Iccrcc lor injunction and 1917; Gross v. Van Dyke Grarure six cents damages, ..r an inter- Co. (1916), 230 Fed. (('.('. A.) 412. locutory decree for an injunction, ** Biniwi v. WoodrujT (l.S2n, witii reference to a master. l^'d. C'lus. ((\ C.) No. 1424. See also: § 40 of the ('o])y right *'- Huebsch v. Chri.'^t (1914), 209 Fed. (D. C.) 885. 620 THE LAW OF MOTION PICTURES to enjoin the further performance of the defendant's entu'e work. It may, however, in its sound discretion, issue its injunction only ds against that portion of the work which infringes where the defendant may readily expur- gate such part of the infringing work.^^ The court will ordinarily issue such an injunction when the infringement has not been wilfully caused or where both works are based upon a common source, and the defendant has taken only a small portion of liis work from the complainant.^^ This is especially true, where the damage done to the defendant by an injunction would be out of all propor- tion to complainant's damage. ^^ But this will not be done where the part which infringes and that which does not cannot be readily separated. ^^ '' If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publish- ing the literary matter which belongs to me; and if the other parts of the work cannot be separated, and if by that means the injunction which restrains the publication *' Historical Pub. Co. v. Jones siross (1910), 181 Fed. (C. C.) 431. (1916), 231 Fed. (C. C. A.) "Yet, as what is permissible and 638. ^ what is improper are so iiiter- Scc also: Farmer v. Ehlner woven and combined in one and (1888), 33 Fed. (C;. C.) 491; the same book that the defend- Samson v. leaver (1905), 110 ant without elimination eannot Fed. (('. C. A.) 539. use or employ what is his own " Slevemon y. Fo.r. {V.)\ry), 22Ct without employing; and using Fed. (I). C.) 990. that which is not, he ought not « Farmer v. Elslner (1888), .33 at this juncture exact of the court Fed. ((;. C) 494. the task of such separaticmsoasto ** Park & Pollard Co. v. Kdlrr- relieve him therefrom." WHIT Ol SEI7AIKE f)21 of my mat tor prevents also the publication of his own literary matter, he has only himself to blame." ^" Secton 170. — Writ of seizure. The aggrieved Jiarty need not wait until final adjudica- tion before he secures the seizure of the hifringing copies of his motion picture. Section twenty-five of the Act, subdivisions (c) and (d), provide that the infringer shall be liable to deliver upon oath to be impounded during the pendency of the action upon such terms and conditions as the court may pro- scribe all articles alleged to infringe a copyright, and that the infringer shall also be hable after final hearing to dehver up, on oath, for destruction all the infringing copies or devices as well as all plat os, moulds, matrices or other means for making such infringing copies as the court may order. The Supreme Court of the United States in pursuance of the authority vested in it under this section of the Act has ado])ted rules for the practice and procedure to be followed in the impounding and destruction of the in- fringing dovicos, plates, etc., and these rules are contained in Rules tlu-cc to thirteen inclusive, thereof. The rules in substance provide that upon the institu- tion of the suit or at any time before final judgment, the complainant or his agent may file an aflTidavit giving the number and location to the best of his knowledge of the alleged infringing copies, plates, etc., and the value »" Lord Eldon in Mairman v. (Enn), 2 Woodb. & M. 497; Tegg (EnK.) (1S2G), 2 Huss. 3S5. Clrceue v. Bishop (ISoS), 1 ClifT, See also: Webb v. Powers (C. C.) 18G. 622 THE LAW OF MOTION PICTURES of the same, together with a bond in twice the reasonable value of such infringing copies and plates. The clerk is thereupon required to issue a writ directed to the Marshal directing him to seize and hold the same subject to the order of the court. The rules are given in full in the appendix herein. It has been held that a motion for an order to show cause why films seized by the Marshal pursuant to Sec- tion twenty-five, subdivision (c) of the Act should not be returned, will not be entertained by the court unless it is shown pursuant to the Supreme Court rules that the articles seized are not infringing copies. ^^ Where the defendant has been successful in the action, he may recover his damages under the complainant's bond. Universal Film Mfg. Co. v. Copperman,-''- has a detailed discussion of the mode of fixing the damages in a situation of this kind. The court there fixes defendant's loss as the moneys which he would have received from exhibitions of the film during the period of detention of the film. The court follows the hne of reasoning suggested in Schlesinger v. Bedford,'"^ where a recovery was permitted for the prevention of dramatic performances, and holds in effect that the modern trend of thought in awarding damages is to compensate the aggriev(Ml party for all of his loss; for one who prevents another from i)ursuing his business has in mind the nature and incidents of such ''^ Crown Feature Film X. Belts man (1!)14), 21S Fed. (I). C.) (1913), 200 Fod. (I). C.) mi. 580. '•^ Univeraal Film v. Copper- ^^ Schlcsiuf/er v. Jicdford (ISd'S), 28 Weekly Notes, 57. ACCOUNTING (323 business, and should be liable lor the losses sustained by reason of his acts, whether the loss be in the nature of future profits or investment or both. Actions brouy;ht under the Cojjyri^ht Act are statutory actions, as distin^uislied from connnon-law actions; hence, attachments and replevins, not l^eing specifically i)ro- vided for in the Act, may not be maintained/'' And the rules of the state courts wherein the writ is issued pertaining to attachment and replevin have no reference thereto.'"'^ Section 171. — Accounting. Section twenty-five, subdivision (b) provides that in proving profits the i)hiintiff shall be recjuired to prove sales only, and the defendant shall be re(iuired to prove every element of costs which he claims. While tliis rule primarily applies to works which are reproduced in copies "Dixon V. Corinne (1914), 214 Fed. (D. C.) 418. On at- tachment. UUUs & Co. V. Hoover (1900), 142 Fed. (C. C.) 901. On re- l)levin. (luslin V. Record Pub. Co. (1904), 127 Fed. (C. C.) 603. On replevin. Hut see: Morri.son v. Pctti- bonc (1S97), 87 Fed. (C. C.) 330. '* Richardson v. liossehncin (1907), U'A Fed. (C. C.) 781; //(//« V. Iloorcr (1906), 142 Fed. (C. C.) 904; Giistin v. Record Piib. Co. (1904), 127 Fed. (C. C.) 603; Reinhardt v. Smilh (1903), 121 Fed. (C. C.) 148; Falk v. Curtis (1900), 102 Fed. (C. C.) '.)(i7. But see in this connection: Am. Tobacco Co. v. Werckmeister (1907), 207 U. S. 284; 28 Sup. Ct. 72. This wa.s the ordinary action for replevin under the New York Code based on 4965, Rev. St. of U. 8. Held that as the (juestion of tiie propriety of brinfj;iiiK .such a form of action was not raised un- til on a motion for a new trial, it could not be heard on apjKial. 624 THE LAW OF MOTION PICTURES for sale, it may be stated that where the infringement is of a dramatic work, and the complainant wishes to secure defendant's profits, he must only show the gross receipts, and the defendant is obligated to show the actual cost of production and the disbursements necessarily mcurred by him in the exploitation of the work. As a matter of practice, the procedure which is ordina- rily followed is the one outlined in the old Chancery Prac- tice Rule one hundred and seven. ''^ ^6 Chancery Rule one hundred and seven: " All parties account- ing l)efore a master shall bring in their accounts in the form of debtor and creditor, and any one of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine tlie accounting party upon interrogatories, as the mas- ter may direct. On any reference to take or state an account, the master shall be at liberty to allow interest as shall be just and equitable, without any spe- cial directions for that purpose, unless a contrary direction is contained in the order of refer- ence, and every change, discharge or state of facts, brought in be- fore the master shall be verified by oath as true, cither positively or upon informal ion and belief." \cii' York Hunk Note Co. v. Ilamillon Eng. Co. (H)OO), .W A. D. (N. Y.) 488; 67 N. Y. Supp. 827. " When the account is pre- sented, the plaintiff is at liberty to surcharge the same xvith any sums which he can prove ought to be added thereto, and he may ex- amine the party presenting the account for that purpose. The defendant may also shoiv matters, uithin the scope of the accounting, xohich lend to relieve him from the apparent amount which woidd otherwise be charged against him." The (luestion was again con- sidered in Kligcr v. Rosenfeld (1907), 120 A. I). (X. Y.) 306, 10.') N. Y. Supp. 214. "The ])r()per i)ra(;ticc where a party is adjudged to account either before the court or a referee appointed by it, is that pre- scribed by the 107th Chancery Kule, and Ihe party so directed should prepare and (lie and xcrily an account of tlie matter as iu; ACCOUNTINCi G25 After the piirties appear before the Master, the de- fendant is directed to file liis account. The defendant charges himself with the gross receipts and credits himself with his disbursements. The account is verified. If the complainant is dissatisfied with any portion of the ac- count he files exceptions thereto, stating sj)ecifically the nature of his objections, and if it is with respect to any particular item of the account, by pointing out the same. Hearings are then had before the Master on the items to which objections have been taken. It would seem under the rule laid down by Section twenty-five, that if the objection is taken to any part of the receipts, the burden is on the com])lainant. He may subpoena the books of account " as well as the defendant himself, or its oflficers, if a cori^oration, as well as other witnesses. If, on the other hand, the objection is taken with re- spect to the disbursements of the defendant, then the defendant must prove by comi}etent e\'idence the cor- rectness of the items to w'hich the objections have been taken, otherwise those items are stricken from the ac- count, and the defendant is surcharged with them.^^ claims the facts to he. Xcw York uuuk. In this manner is!>iics for Hank Xotc Co. v. Hamilton En- liliydtion are made concerning graving Co. (1900), .56 A. D. (N. apccijic items and the mass of un- Y.) 488, 67 N. Y. Supp. 827. // contested items are eliminated from sitch account is mtixfactorij to proof and further consideration the ()j)posing parli/, that is an end until the making up of tfic findings of the nuiltcr. If it is not, the other and report." party should file his objections " Callaghan v. Meyers (1888), ami specify what is xorong ami what 128 U. S. 617; \) Sup. Ct. 177. surcharges fie claims should be ''^Ginn v. Appollo (1915), 228 626 THE LAW OF MOTION PICTURES In this respect the old Chancery Rule above mentioned has been modified by the Act.^^ Section 172. — ^Actions at law. A copyright proprietor may bring his action on the law side of the court and ask for damages by reason of the infringement. He acquires thereby the absolute right to a trial by jury. The question of infringement, which is a question of fact, then becomes one for the jury. 60 Fed. (D. C.) 214. "In patent cases, the profits are found by contrasting the amount of pro- ceeds of sales made with the total cost of production. In copyright cases, under the Act of 1912 (Act Aug. 24, 1912) the plaintiff may show only the receipts, or debit side of the account, and put upon the defendant the burden of proving the cost of production, or the plaintiff may exact the j)enalty. A successful plaintiff is thus given something in the nature of certain options. He may take damages and profits or the penalty imposed. If he takes profits, he may avail him- self of the method of proving profits givcm by tiie Act of 1912. This method, however, is not e.\- clusive. Whatever method he adopts he may apply it by calling uixni the defendant to account, or by proving either sales or profits through and by evidence introduced or witnesses called by him." ^^ In the following cases mis- cellaneous questions arising upon an accounting, such as "proper elements of cost," "items prop- erly included in gross receipts" etc., etc., are discussed. Cal- laghan v. Meyers (1888), 128 U. S. 617; 9 Sup. Ct. 177; Stevens v. Gladding (1856), Fed. Cas. No. 13,397 (C. C.) Hartford Co. V. Hartford D. Co. (19()()), 148 Fed. (C. C.) 470, and Dam v. Kirk La Sheik (1911), 189 Fed. (C. C.) 842, particularly, which involves the accounting on an infringement of a dramatic com- position. See also: Chils v. Gronlatbd (1890), 41 Fed. (C. C.) 145. '^"Maxwell v. Goodwin (1899), ACCOUNTING G27 Section twenty-fivo, sul)(Hvision (1)) iirovidiiig for the piiyinciit of danuigt'S as well as profits, applies to an ac- tion at law as well as to one in equity. The difference is that in one the jur}', instead of the master, assesses the damages; and the use of the word ''court" in the statute does not recjuire the judge acting by himself to assess the damages, but on the contrary, he is permitted to direct the jury to assess the damages within the prescribed hmits.'"' It has been held no error to instruct the jury that it may award exemj^lar}- damages in the case of a wanton or maUcious disregard of complainant's rights in his work.^- ^^^lcre the action is tried at law, the judge must submit the issues of infringement to the jur>', but where the verdict of the juiy is clearly against the weight of evi- dence, the trial justice may set it aside.^^ It would seem that a complainant may bring his action for damages for infringement in the law branch of the court, and during the i)endency of that action may insti- tute a new action for an injunction, upon the theory that the action at law is designed to secure indemnity for the past, and the injunction protection for the future.^^ 93 Fed. (C. r.) 66.'). "Applying «' Mail A Express v. Life Pub. the rule held in patent cause.>< at Co. (1912), 192 Fed. (C. C. A.) law, that issue-s of infringement 899. and itlentity mu.st be pa.ssed *- Press Pub. Co. v. Monroe upon by the jury," it is proper to (1896), 73 Fed. (C. C. A.) 196. sul)init the issue of infringement " Maxurll v. Goodwin (1899), or piracy to a jury in a copy- 93 Fed. (C. C.) 665. right action. ** Schumacher v. Schwcnckc Dam V. Kirk La ShcUe (1910), (1885), 25 Fed. (C. C.) 466. " The 175 Fed. (C, C. A.) 902. copyright law seems to contem- 628 THE LAW OF MOTION PICTURES Section 173. — Actions purporting to be brought undei the Copyright Act. Complainants occasionally mistake their remedies. Actions are brought under the Copyright Act where the questions involved have reference solely to contractual relations between the parties. The Federal courts will not entertain such actions, unless the other jiurisdictional facts are present.^^ plate beth remedies; and no rea- son is suggested why a party who seeks the first should be deprived of the second." «^ Editorial in N. Y. Law Jour- nal, September 19, 1917. Suits in State Courts affecting Patentable and Literary Rights. The decision of the Supreme Judicial Court of Massachusetts in Aronson v. Otiov (July, 1917, 116 N. E. 951) is of more than usual interest because of Chief Justice Rugg's treatment of a defense that is very frequently raised when patentable or copy- riglit:il)le rights are incidentally, though not directly, brought in issue in State courts. It appeared tliat two of the defendants, former employees of the plaintiffs, as.sociated tlK'ms<'lves with a third jM'rson in the manufactine of petticoats in accordance witli an idfa to secure elasti(;ity in con- nection with the seams originated by one of the plaintiffs and se-. cretly communicated to the de- fendants in the course of their employment. The plaintiff origi- nator had applied for a patent embodying such idea, but his ap- plication had been disallowed. The defendants had applied for a patent involving the same idea and their application had been neither allowed nor disallowed but was still pending. In such condition of the facts an injunc- tion with damages is granted prohibiting the defendants from disclosing and using the plain- tiff's i(l(!a for ail elastic seam on the ground that it is a protect- able trade secret. While there is considerable novelty in this l)ranch of the case, the j)rincipal gciiernl interest lies in tlie d(!termination, aft-er dis- cussion, that the subject-matter of the suit is not within the cog- nizance of the Federal courts, ACTIONS TO BE BROUGHT T'NDKR COPYRIGHT ACT 029 For instfinfo. whoro tho lop;al titlo in copyrighted books was not in the copyright proprietor, his remedy for breach Even when ii patent has been granted, business transactions entered ufHjn and exeeuted before the patent was granted are not ordinarily affected. Concedwlly, but that tlie State court has jurischctioii. The entire opinion will amply repay jierusal. After showing by the citation of many authorities that prior to the is- suance of a patent no case can arise under the patent laws re- sjx'cting the relative rights of parties to or under a patent, the learned Chief Justice said in part as follows: "The case at bar, in our opin- ion, does not arise 'under the patent laws' of the United States. The i^laintilTs do not rest upon any right secured by the patent laws, and they do not assail any niono{)oly conferred upon the defentlants l)y such laws. Every reference to the application for a patent and to the patent laws might be stricken from the bill, and every fact respecting that subject might be eliminated from the master's report, without af- fecting or impairing the funda- mental rights up(m which the phiiiititTs' r:use rests. On the otluT hand, giving full etTect to evcr>' allegation in the bill touching patents and to every fact fouml i)y the master relative to that subject, involves no right ai'ising under the patent laws. no patent was granted to any- body for anything respecting this subject until long after this suit was instituted. The question which the plaintiffs are seeking to have settled in this cause is not their right to a patent, but their right t« lie protected from unlawful trade interference. The circumstance that priority of conception f)f an idea, which may or may not involve a pat- entable invention, was incident- ally involved in one respect of that unlawful interference, ren- tiers the subject of the Patent Laws of the United States, if a patent ever should be granted, collateral and incidental to a cause over which the state courts have jurisdiction. " This suit is not brought to determine the priority of an invention, and hence the right to a patent. It is brought to pre- vent the unlawful use of informa- tion, which may relate in part t^i an invention al)out the patenta- bility of which there is contention, 630 THE LAW OF MOTION PICTURES of a contract respecting the sale of the books was held to be one for breach of contract, and not one cognizable which has been obtained under such confidential circumstances that it ought not to be used to their harm. See Agawan Co. v. Jordan, 7 Wall. 583, 602, 19 L. Ed. 177. Therefore the state- ment of the Circuit Court judge in Standard Scale & Foundry Co. V. McDonald, 127 Fed. 709, 710, that ' it was never in the mind of Congress that the inventor, with- out complying with the statutory scheme of submitting his claim to the Patent Office for its action thereon, could go into a United States court in the first instance, to have determined the question of his right to a patent,' has no application to the facts here disclosed. " The plaintiffs' cause of action seems far more remote from the patent laws of the United States than actions on notes given for patents where the voidness of the patent (Dickinson v. Hall, 14 Pick. 217, 2o Am. Dec. 390), its invalidity because of fraudu- lent pro(Mir(!ment (lUiss v. Negus, 8 Ma.ss., 46), its want of utility {Biercc v. Stocking, 1 1 Cray, 174), and its utter worthlessness (Lester v. I'nhncr, 4 Allen, 14.') ), have been considered jis defenses and directly adjudicated by this court. All of these cases were cited with approval in Pratt v. Paris Gaslight & Coke Co., 168 U. S. 255, 260, 261, 18 Sup. Ct. 62, 41 L. Ed. 458), together with an amplitude of other authorities showing the wide scope of juris- diction rightly taken by state courts of questions involving incidentally the validity of pat- ents when the action was not brought directly and chiefly for infringement or to test the vaUd- ity of a patent." As to actions in state courts affecting property that might be the subject of copyright it should be kept in mind that the American Copyright Act now in force expressly provides that nothing therein contained "shall be construed to annul or limit the right of tiie author or pro- prietor of an unpublished work, at common law or in equity, to prevent the copying, publica- tion or use of such unpublished work without his consent, and to obtain damages therefor. " (U. S. Com p. Stat., 1913, §95 IS. The American Act differs horn the Englisli ( 'opyriglit Act of 1911 in that the latter "confera ACTIONS TO BE UHOVCUT INDEU ( OPVUHJHT ACT iVM rnpyrinht in uni)ul)lishcd a.s well as published works, and abol- ishes the (juiisi-eopyri^iht at com- mon law previously enjoyed by the former, preserving, liowever, the common-law right to have a jx'riod of trust or ecjnfidence re- strained. " The Law of Copyright , by George Stuart Roberts, 1912, Preface. In the United States common- law rights in literary property must be sued on in a state court unless the matter in dispute is sufficiently large and an alien is a party, or the suit is between citizens of different states, so as to confer jurisdiction upon a federal court. In like manner as in suits incidentally concern- ing patentable rights, tlie con- tention is not infrecjuently made in actions in state courts affect- ing literary or artistic property riglits that the Federal courts have exclusive juri.sdiction. On Monday last we referred to the decision of Mr. Justice Green- bauin in Fisher v. Slar Company (X. Y. Law Journal, January 2(5, 1917, p. 1497), which turned ujx^i a question of trade-mark or trade name. It appeared, among other things, that a cartoonist, whose rights to the trade-mark in " Mutt and Jeff" were upheld, had not only registered those words as a trade-n)ark in his name, but further, that he had published and copyrighted in his name books containing some of his drawings and published under the title "The Mutt and Jefi cartoons, by 'Bud' Fisher." Mr. Justice Greenl)aum felt con- strained to remark in reply to points made by counsel that "in passing upjon the voluminous findings submitted by the de- fendant I desire to observe that because reference is made to certain copyrights in the plain- tiff's findings there is no impli- cation that this court is disposing of this case upon the theory that a copyright is involved. The facts with reference to the copy- right are merely incidental in the determination of the ultimate questions presented." The test of jurisdiction is similar to that applied in the Ma.ssachusctts case as to patent- al)le projjerty, that is whether the suit is really to uphold or recover damages for infringe- ment of "any right protected under this (the Copyright) act." And a state court or a Feileral court, if for sjjecial reasons it has jurisdiction, may, in uphold- ing merely conunon-law rights in literary proixM-ty, grant reme- dies that are sinulur to those 632 THE LAW OF MOTION PICTURES under the CopjTight Act.^^ And where the suit was to enforce a contract between a publisher and an author, it was held not to be an action arising under the Copyright Act.^^ A covenant in a contract between a proprietor of a prescribed by the Copyright Act for infringement of Hterary works that have actually been copy- righted. French v. Kreling, 63 Fed. 621. «« Harrison v. Maynard (1894) , 61 Fed. (C. C. A.) 689. '^■'Silver v. Holt (1895), 84 Fed. (C. C.) 809. Baldwin v. Baird (1885), 25 Fed. (C. C.) 293. Two parties had contracted for the sale of a book each one to have a certain territory. Subsequently the suc- cessors of one party brought out a new edition of the work and invaded the other's territory. Held that this was not a question of copyright but of contract, and injunction was granted restrain- ing. Pulte V. Derby (1852), 5 Mc- Lean, 328. The author of a book sought to restrain the publishers, who had copyriglitc^l tlic book in their own niinics, from pul)lisli- ing a third edition. The parties had, before the book was copy- righted, entered into an agree- ment whereby the right wius grantcil to the defendants to publish a first edition and as many copies of the second edi- tion as they could sell. The de- fendants in a cross bill claimed that as the copyright was in them, the complainant had no right to publish a revised edition and prayed that he be enjoined. The court held that the rights of the parties depended upon the construction of the contract alone and that there was no question in the case which could be said to arise under the Copyright Act. See also: Albright v. Teas (1882), 106 U. S. 613; 1 Sup. Ct. 550. Held that a suit involving contract rights granted in a pat- ented invention did not involve patent rights as such, and could not be brought in the United States courts. "The controversy between them as stated by the appellants themselves is whether certain goods manufactured l)y them cmlxxly the invention covered by the appellee's patents. This does not necessarily involve a coiistruclion of the patents. Botli parties may agree as to ACTIONi=; TO HE BROrCHT T'NDKR COP^TtlOHT Af"T 033 copyright and a licensee, wherehy tlie licensee binds him- self not to infringe, is enforceable in a state court in the same manner as the contractual rights and obligations arising out of any other negative covenant in the con- tract.'^" what the patented invention is and yet disagree on the ques- tion whether the invention is employed in the manufacture of certain specified goods. The controversy between the parties in this case is clearly of the latter kind." See also: Herzog v. Heyman (1897), 151 N. Y. 587; 45 N. E. 1127; Waterman v. Shipman (1891), 130 X. Y. 301; 29 N. E. 111. ** Comerma Co. v. Comerma and Tile Arch Const. Co., N. Y. Law Journal (1017), June 1st. "The evidence cstaljlishes that the plaintiff was a licensee under the patents mentioned in the agreement between the parties, and it is admitted that the plain- tiff's license was not an exclusive one even within a limited ter- ritor>'. It may be presumed that the plaintiff has the mere naked right of user of the patented article for a consideration paid or to be paid. Under the agree- ment betweei\ tlie parties to this action, defendant Comerma stipulated not to infringe the two patents in question and not to (juestion their validity. In- asmuch as plaintiff's claim does not arise under the Patent Laws, but under a contract, it is e\'i- dent that the plaintiff could not enforce its rights against defendantis in the Federal courts, which have exclusive power to adjudicate rights under the Pat- ent Laws of the United States, but have no jurisdiction to adju- dicate rights, which depend en- tirely upon contractual obliga- tions in relation to patents. If the plaintiff may not as.sert its rights under the Patent Laws, it seems clear that he never could assert them unless the state courts had jurisdiction to enforce them. We are thus required to construe the contract and de- termine what the parties meant when Comerma agrectl not to ''infringe" the patents. If the word "infringe" were construtnl to refer to the making, .'telling or using without right of a pat- ented article, which is the sense 634 THE LAW OF MOTION PICTUKES Section 174. — Willful infringements. Section twenty-eight of the Act provides that any per- son who willfully and for profit shall infringe any copy- right secured by the Act or who shall knowingly and willfully aid or abet such infringement shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars or both in the dis- cretion of the court. The interesting question that arises under this section of the Act is as to the respective crhninal liabihties of the various parties who participate in the ''duping" of a film. The making of a negative "dupe" from a positive print of a motion picture, when made for the purpose of profit in any form, comes within this section. The intent to in which the word is ordinarily tory prescribed. In other words, employed {Goodyear Shoe Mfg. the question of a violation of Co. V. Jackson, 112 Fed. 146, the covenant not to infringe the 148), then no effect could be patented article is cognizable given to the word "infringe" in the state court in the same in the contract. But reading manner as that court may con- that portion <>i the contract, strue the contractual riglits and under which the defendant agreed obligations arising out of any not to "infringe," in conjunction negative covenant in a contract, with the other portions thereof The word "infringe" would thus and the circumstances disclosed l)e construed to mean as between upon the trial, it is evident tliat the parties tliat Comerma would what the parties meant was that not make or \h'. inten'sted in any the defendant C-omerma would suc^h article as is described in not make the articles specified in the patents." these patents within the terri- WIl.l.lI I, INFRINGEMENTS 035 derive profit need not be expressly shown, but may lx» inferred from the circumstances of the case, as where the defendant is engaged in the motion picture busi- ness and is caught making a negative "dupe." Here, clearly, the court will hold that the defendant's intent as expressed by his outward acts, was to derive a profit. The Act makes a distinction between the person who infringes and him who aids or abets such infringement. In the former it must be established that the act was done willfully and for profit. In the latter it is sufficient to show that the defendants knowingly and willfully aided or abetted. In the second case profit is entirely elimi- nated. Every one who participates in the "duping" process and in the sale or other disposition of the "duped" nega- tives and positives is equally liable under the Act. Thus the photographer, the developer, the i)rinter, distributor and exhibitor may all be liable. The criminal and civil remedies under the Act are not exclusive. They may be pursued concurrently if desired, so that the complainant may at one and the same time move for his injunction pendente lite, secure a writ of seizure for the "duped" films, and obtain his warrant for the arrest of the infringer.^' «»/?. V. Baldoli (Eng.) (1913), (lOOT,). Timos, Jan. 20. The de- Times, Nov. 27. See for con- feiuiants had conspired to pirate viction under Knglish Copyright the plaintiff's music, and the con- Act for knowingly liaving a viction was had on the theory of positive i>rint of a lilin in the jws- conspiracy. session of d(>fen(lant witli intent Some of the states have enacted to make infringing copies tliere- laws making it a crime to publicly from: Hex v. Willclts (Eng.) perform unpMished works. See 636 THE LAW OF MOTION PICTURES Section 175. — Statute of limitations. Section thirty-nine of the Act provides that no criminal proceeding shall be maintained under the provisions of the Act, unless the same is commenced within three years after the cause of action has arisen. The present statute does not contain any statute of limitation with respect to civil remedies. Under the statute in force prior to the present Act there was a pro- vision limiting the commencement of actions for a for- feiture or penalty within two years after the cause of action had arisen.'^" Section 176. — Construction of forfeiture and penalty clauses. Under the earlier statutes, all the copies of the infrin- ger's work, found in his possession, were forfeited, and in addition thereto, he was liable to a penalty, half of the proceeds going to the plaintiff and half to the United States Government. An action brought under these statutes was not in equity, for equity does not enforce penalties and forfeitures,"' but was in the nature of a qui Penal Laws of New York, §441, tare provisions of the Copyright which makes it a misdemeanor Act. It would seem that in the to perfcjrrn an undedicated work absence of express jurisdidion in that state. conferred by ('ongress such courts '" Revised Statute, 4968. Sec will not enforce penalties or also: Wheeler v. Cobfjcy (1895), forfeitures (p. 4.'>5). 70 Fed. (C. C.) 487. Chapman v. Fern/ (1882), 12 ''Stevens v. (llndding (1854), I'Vd. {C. C.) iVXV, IJ. ,S. v. Whita 17 How. 447. For a full dis- (1883), 17 Fed. (C. C.) 561; cussion a.s to the power of a court Fletcher v. New Orleans (1884), by ecjuity to enforce the forfei- 20 Fed. (C. C.) 345; Trow City CONSTRUCTION OF FOKFEITUUE AND PENALTY CLAUSES iyM lam action wliicli abated with the death of the defend- ant." It was civil in its nature,'^ although the statute, being highly penal "' called for a strict construction."'' So that when the alleged wrongful acts were committed by defendant's agent without his knowledge or consent, he was not liable,^^ nor where he had parted with possession of the uifringing copies.'^ On the other hand, the complainant was not required to allege a demand and refusal,^^ nor was it material whether or not he was damaged by the infringement.'^' Under the 1909 Act most- of these fine distinctions seem to have been done away with. From the language of the statute the penalties are expressly declared to be given in lieu of damages and not to be regarded as penal- Dircdory v. Ctirtin (1888), 36 Fed. (C. C.) 989; 100 Fed. 77; Fed. (C. C.) 829; Lillard v. Sun PHnting Co. (1898), 87 Fed. (C. C.) 213. ^^Schrcibcr v. Sfmrpless (1883), 17 Fed. (D. C.) 589. " Jounml Pub. Co. v. Drake (1!U2), 199 Fed. (C. C. A.) 572. "The notion is founded upon tluit implied contract which every person enters into with the state to ol)serve its laws. Skarm v. U. S., 2 Paine, 300; Fed. Cas. No. 13,341. . . . Actions for penalties are civil actions both in form and in substance, ac- cording to Hlackstone." ^* McDonald v. Hearst (1900), 95 Fed. (C. C.) 656. 'oPalk V. Curlis (1900), 98 S710W V. Laird (1900), 98 Fed. (C. C. A.) 813; Bennett v. Carr (1899), 96 Fed. (C. C. A.) 213; Boston Traveler Co. v. Purdy (1905), 137 Fed. (C. C. A.) 717; Caliga v. Interocean Newspaper Co. (1907), 157 Fed. (('. ('. A.) 186; atT'd 215 U. 8. 182; 30 Sup. Ct. 38. ^^ Taylor v. Gilnuin (1885), 24 Fed. (C. C.) 632. ^ Sarony v. Ehrich (1886), 28 Fed. (C. C.) 79. ^^ liegeman v. Springer (1901), 110 Fe. Co. (1902), 119 Fed. (C. C.) to be regarded as imposing a 451; \V heeler v. Cnhbey (1895), penalty. 70 Fed. (C. C.) 487; see also "It woiild Hoeni thai t,h(! words generally: lirady v. D(di/ (1899), ' shall n(;t be regarded as a pen- 175 U. S. 148; 20 Sup. Ct. 148. CHAPTER XV COPYRIGHT (continued) Miscellaneous Matters Sec. 178. Return of copies deposited. 179. Proliibitioii of importation of piratical copies. 180. Ad interim protection. 181. Bankruptcy— Title in trustee. 182. Selling secondhand copies. 183. Taxability. 184. Music in tlieatrcs. 185. Co-authorship. 186. Employer and employe. 187. Restraint of trade— Price fixing— MonojMjly. Section 178.— Return of copies deposited. Section sixty of the Act provides tliat any works de- l)()sit(Ml pursuant to the Act and not disposed of in ac- cordance therewith may in the iliscretion t)f the Librarian of Congi-ess and Register of Copyrights be destroyed after an opportunity lias l)een given to tlie author, copy- right proprietor or other lawful claimant to claim and remove the same. The Register of Copyrights has also permitted the withdrawal of one copy of published works deposited with him, where the claimant gives some valid reason why it is necessary for him to have such copy removed. 039 040 THE LAW OF MOTION PICTURES Section 179. — Prohibition of importation of piratical copies. Section thirty of the Act expressly prohibits the im- portation into the United States of any piratical copies of a work in which there is subsisting a United States copyright. Where a film has been ''duped" and an attempt is made to bring into this country ''duped" copies of the film, the copyright proprietor may prevent the entry of such films under Sections thirty-two and thirty-three of the Act. Where, however, the motion pictm'e for which entry is sought is merely an infringement of the copyright in a work, which itself is not a motion picture, the cop^Tight proprietor may not avail himself of the benefit of this section.^ 1 Riding of the Treasury Dc- virtue of paragraph D of § 1 of partment dated December 21 , 1912, the Copyright Act have the ex- on the importation of the motion elusive right to make all moving picture "The Miracle." "The pictures representing this dra- Department is in receipt of your matic composition; that the Mir- Icttcr of the 18tii instant in rcla- acle Company by certain con- tion to the importation at New tra(;ts have ac^iuired the sole York on the 9th idem of a moving rights in the said dramatic corn- picture film which is claimed to i);)sition and also the moving be a reproduction of a drama i)icturc right therein for the entitled 'The Minutlc' United States, and that the film " It is rcpresent(!d that Messrs. belonging to the Miracle C/om- ]']d. Bote and (1. liock of Herlin, pany was advertised on theSthof Germany, are the proprietors of this month to be exhibited in the copyright of the dramatic London, England, on the 21st composition entitled 'The Mir- instant. acle'; that Bote and Bock by " I inclose herewith for your AD IXTERIM PROTECTION 641 Section 180. — Ad interim protection. Sections twenty-one and twenty-two providing for ad interim protection of works published abroad in the iiiforiiKition a copy of tlio De- IKirttueiit's letter of tlie IStli instant to the collector of customs at New York authorizing the release of tlie film in (luestion. As it is not sliown cither in the collector's letter or in your com- munication that the film imported is a piratical copy, the Depart- ment knows of no provision of law which would authorize the exclusion of the same from entry as § 30 of the Copyright Act pro- hibits the importation only of articles hearing a false notice of copyright when there is no exist- ing copyright thereon in the United States or of piratical cop- ies of any work copyrighted in the United States. " Therefore the cjuestion of whether the imported film is an infringement of tlie dramatic composition or of the moving picture film advertised to he exhibited in London on the 21st instant is one for the determina- tion of tlie courts after the film IS released from customs custody. " Respectfully, " J. F. CUHTIS, " Assistant Secretary." Letter referred to in the above ruling: — "December IS, 1917. "The CollecUjr of Customs, " New York, N.Y. "Sir: "The Department is in receipt of your letter of the 18th instant, reporting in relation to an im- portation of a moving picture film made at your port on the 9th instant, entry No. 332691, and which is claimed to be a re- production of a drama entitled 'The Miracle,' of which Mr. A. H. Woods of New York City is the American copyright pro- prietor. "It appears that the film was duly entered and relea.>r. 7. Xo film will be presumetl to be prohil)ite- copyrighted map or its copper lisher tlic author attempted to plate are seized by tlie sheriff ol)tain a re-a.ssignment of the on execution, the purchaser of tlie copyright. The Six>cial Coni- same acquires no right to make mission held tliat he could do so: copies thereof. " It is true that the author See also: Stevens v. Gladding rescrx-ed her own right to a.ssign (18.54), 17 How. 447; Sterens v. her royalties, hut .she also ex- Cndy (18.V2), 14 How. 528; Pat- pressly resers'ed to herself the terson v. Ogilrie Pub. Co. (1902), right to object to an jvssignment 119 Fed. (C. C.) 451. on the part of the corjxiration." * /n re D. II. Mcliridc A Co. '6cqi\\^o: Arkansas Smelting Co. (19m),i:r2Fed. (1).C'.)285. The v. Belden (1S8S), 127 U. S. 379, contract involved was one be- 8 Sup. Ct. 1308; Bancroft v. 646 THE LAW OF MOTION PICTURES But where there was no mere Hcense but an assignment, or a Hcense which amounted in law to an assignment, the trustee became legally vested with title on the bank- ruptcy of such assignee or licensee, and could not be compelled to turn over the copyright to the assignor or licensor.^ Section 182. — Selling secondhand copies. In view of the practice of buying up old motion pictures and again distributing them, it is of interest to note that these second-hand copies even though copyrighted, may lawfully be touched up and restored as closely as possible to their original condition. The purchaser may also exhibit or cause the same to be exhibited. He may not, however, make copies of the film, as that would violate the rights of the copyright" proprietor of such film. While there is no reported decision on this proposition directly involving motion pictures, the case of Doan v. ld to go to (C. C. A.) 982. the trustet; in l)!Uikruptcy. Also dn'ffdh v. Tower Pvh. Co. "The tjucstion always is in (Eng.) (1897), 1 ('hancery, 21, such cases whether the agree- when; the identical (juestion was inent is merely an arrangement passed on, and the siuhc oon- to publish under the copyriglit SELLING SECONDHAND COPIES 047 American Book Co.,' which concerned itself with tiic dc- fendant's right to rebind old books in imitation (jf tin; originals, is so closely analogous that it may be said to apply. Tliis would indicate that the buyer of a film could re- store the original title, both in text and design, and use the original advertisements in so far as no attemi)t was made to mislead the public into believing such motion l)ictures to be a first issue, or to bo exhibited by the copy- right proprietor.^ or an actual transfer of the copy- right." In re Grant Richards (Eng.) (1907), 2 K. B. 33. Where the publisher held the copyriglit and agreed to pay royalties it was held tluvt tlie copyright passed to the trustee in bankruptcy. T Doan V. Ain. Book Co. (1901), 105 Fed. ((\ C. A.) 772. De- fendant bought up second-hand copies of phiintiff's copyrighted books, and rebound them, mak- ing up new covers for tliat pur- pose in exact imitation of the originals. Held that this was not a violation of the copyright. "The sale of them by the ajipellee (plaint itT) carried with it the or- dinary incidcnt.s of ownership in personal proix^rty, including the right of alienation {Harrison v. Maynard, 01 Fed. 0S9) and the appellants purchasing them had the right to resell them. . . . We think the right of repair with respect to a copyrighted book sold to the extent to which that right is here claimetl, may not properly be denied. . . . What was done was merely the restora- tion of the books to their original condition when sold by the ap- pellee or so nearly so as could be done ... a right of ownership in the book carries with it and includes the right to maintain the book as nearly as possible in its original condition, so far. at least, as the cover and bind- ing of the book is concerned." See also: Dodd v. Smith (1891), 144 Pa. St. 340; 22 Atl. 710; Har- rison v. Maynard Merrill li' Co. (1894), Gl Fed. (C. C. A.) G89; Henry Hill Puhl. Co. v. Smythe (1886), 27 Fed. (C. C.) 914. » Where old books were passed 648 THE LAW OF MOTION PICTURES Where a secondhand motion picture projecting ma- chine was sold, no false representations as to its origin being made, it was held that such sale was lawful under the original name of the machine.^ Section 183. — Taxability. Copyright may not be taxed. It is a species of intangi- ble property which is exempt from taxation; for to tax it would be to impose a check upon that which is avowedly sought to be encouraged. ^° off as new, it was held to be unfair competition in: Doan v. American Book Co. (1901), 105 Fed. (C. C. A.) 772; Bureau of Nat'l Literature v. Sells (1914), 211 Fed. (D. C.) 379; Ginn v. Apollo (1914), 215 Fed. (D. C.) 772; Kipling v. Putnam (1903), 120 Fed. (C. C. A.) 631. 9 Vitascope Co. v. U. S. Phono- graph Co. (1897), 83 Fed. (C. C.) 30. Where plaintid had con- tracted with Edison for the man- ufacture by the latter of certain motion picture machines and after his faihire to pay for some of them, Edison sold them to a third party under the name which had been given them "Edison Vitascopes," plaintiff could not enjoin the tliird party from ofTer- iiig them for sale under that name, as tliat wius their name, and no false representation was made to the public. It is to be noted that no right to the use of the name had been shown to vest exclusively in the plaintiff. ^'^ People ex rel. Johnson v. Roberts (1899), 159 N. Y. 701; 53 N. E. 685. The same rule with respect to patent rights is laid down in People ex rel. Edison V. Assessors (1898), 156 N. Y. 417; 51 N. E. 269. People ex rel. United States Aluminum Co. v. Knight (1903), 174 N. Y. 475; 67 N. E. 65. A corporation may be taxed by the state even though its jiroperty consists of exempt letters patent, bonds or copyrights. ". . . . But they involve the principle that while a tax cannot be assessed upon property that is exempt l)y A(;t of (!ongress, it may be imposed upon the fran- chise of a corporation to which such exempt projMirty belongs MUSIC IN THEATRES G49 Section 184. — Music in theatres. 'riic owner or lessee of u theatre is undoubtedly liable for unauthorized and unlicensed performances of musical compositions j^ivcn in his theatre. This follows logically from the decisions in Herbert v. Shanley and Church v. Illlliard '' decided in 1917 by the United States Supreme Court. In each of these cases the plaintiff had brought an action for an injunction and damages on the ground that his music had been unlau-fully performed "for profit," in the one case at a popular restaurant, in the other ca.se at a hotel. The performance in each case had been of the kind known as a "cabaret." aiKJ may be measurod by the value thereof. Tlie princij)le applies with the same force 1o ptitoiit rights as to United States bcjiuls, both of which are exempt from taxation. There is no dis- tinction in tliis respect between United States bonds, patent rights and copyrights." Ilurpir V. Donohiie (1905), 144 Fed. (C. C:.) 491. "Such literary propTight wliich is enforceable in Australia. Section 191. — Copyright in Dominion of New Zealand. New Zealand passed a Coi)yright Act in 1913, wliich went into effect on April 1st, 1914, based upon the 1911 , Act. There were modifications as to sunmiary remedies and iirovisions for optional registration and deposit similar to the Australian Act. The Act provides that coi^yright shall subsist in a published work if first publication takes place in New Zealand, and that in the case of an unpublished work, copyright shall subsist therein only if at the date of the making of the work the author is a British subject or n^si(l(Mit in New Zealand. The Act further proviiles that c()i)yright shall be extended to no other works except 000 THE LAW OF MOTION PICTURES such as may be given protection by an Order in Council of the Governor. An Order in Council has been made by the Governor of New Zealand extending the Act to Great Britain, so that first publication in Great Britain is equivalent to a first publication in New Zealand, and will afford protection under the New Zealand Act. In addition thereto an Order in Council has been made by the Governor extending the provisions of the Act to countries belonging to the Copyright Union as of April 1st, 1914, from which date New Zealand may be regarded as a party to the Revised Berne Convention of Berlin of 1908. Section 192. — Copyright in Union of South Africa. Like Australia the Union of South Africa passed an Act in 1916 adopting the 1911 Act in accordance with Section twenty-five thereof, and declared the same to be in force in the Union subject to certain modifications and additions, consisting chiefly of a system of registra- tion and deposit, and the imposition of severer penalties for infringements. Section 193. — Copyright in Dominion of Canada. Method No. J Canada has not y(>t taken any step toward accepting in whole or iu ])art tin; 1911 Act, nor has she passed any legislation rej)('aling or modifying any of the Acts of Piirliani(!nt in so far as th(;y affected her at the time of the taking vJk\ct of the 1911 Act, although this right was cxpn^ssly conferred upon her by Section twenty-six of that Act. COPYRIGHT IN DOMINION OF CANADA 601 All those Acts of Parliamont, tlieroforc, which were in force in Canada on July 1st, l'J12, are still valid and sub- sisting in Canada. Those Acts, so far as they may affect eopyrifzilit in motion ])ictures, are the Literarv CopyriRht Act of 1842 and the International Copyright Act of 1886.' When the 1842 Act was passed the art of motion pic- tures was unknown, and there is no specific provision in that Act conferring copyright in motion i)ictures. Section II, however, in defining the meaning of the words "dra- matic i)iece," (protected under that Act) as that ])hrase is used in the Act, provides that such i)lirase '"shall be construed to mean and include every tragedy, comedy, l)lay, opera, farce, or other scenic, musical, or dramatic entertainment." While we know of no decision which holds that motion pictures arc included within that definition, we believe that the provision is broad enough to include a motion picture, especially in view of the use of the words "scenic . . . entertainment" and "dra- matic entertainment." The 1842 Act, while containing no express provision where ])ublication was first to take place, was heltl to have intended first pubhcation in the United Kingdom alone. - The Act provides in Section XXT^' that the copyright (m1 work shall be registered in the Book of Ut^gistry of tlie Stationers Company. 'See liUicIc V. ImiHruil Book Itli I'.d., p. 89; C/ia/jpe// v. /*jm% Co. (Can.) (1904), 8 Ont. L. R. (Eng.) (1845), 4 W. & C. 485; 9; :i(TM 35(^111. Sup. Ct. 4S.H. Routledgc v. Loir (Kng.) (1865), - Cupinger, Law of Copyrights, L. K. 3 H. L. 100. 662 THE LAW OF MOTION PICTURES Failure to comply with registration does not affect the vaUdity of the copjo-ight, but prevents the maintenance of an action for infringement. Not only may a British subject secure copyright under this Act, but any alien, as well, who resided at the time of first publication, in the British Dominions.^ We now come to the interesting question whether under this Act a non-resident alien, first publishing in the United Kingdom, may secure copyright thereunder. In Routledge v. Low, an American authoress, who had taken up a nominal residence in Canada for the sole pur- pose of being in the British dominions at the moment of first pubhcation of the work in England, was held to have acquired a valid British copyright. Although it was not necessary for the court to pass upon the question of a non-resident alien acquiring British copyright under this Act, the court nevertheless discussed this proposition at length. Lord Cairns said: "Protection is given to every author who publishes in the United Kingdom, wheresoever that author may be resident, or of whatever state he may be the subject. The intention of the Act is to obtain a benefit for the people of this country by the publication to them of works of learning, of utility, of amusement. The benefit is obtained, in the opinion of the legislature, by offering a certain amount of protection to the author, thereby inducing him to publish his work here. 'Routledge v. Low (Kiik.) (Kiir.) (1851), 5 Do O. & Sm. (180.S), L. R. :{ II. L. KM), -"i? SO, Hi Jur. Ur, Ollendorf \. liUick L. J. (C;. II.) 454, 18 L. T. 874; (IOiik-) (1850), 4 Do ('.. & Sm. JvffmjH V. «oo.sr7/ (MriR.) (1854), 20!); 20 L. J. (C. II.) 1G5. 4 II. L. C. 815; BuxUm v. James COPYRIGHT IN DOMINION OF CANADA ()f)3 This is or may be, a benefit to the author, but it is a bene- fit given, not for the sake of the author of the work, but for the sake of those to whom the work is communi- cated. ... I am glad to be able to entertain no doubt that a construction of the Act so consistent with a wise and liberal policy is the proper construction to be placed upon it." In addition to the weight to be given to the above dicta, we have the assurance, gi\'en by Lord Salisbury to the United States government, at the time of the passage of the Chace Act of 1891, in a despatch dated June IGth, 1891, to the President of the United States, that resi- dence in the British Dominions was not essential in order to obtain the protection of the British Cop\Tight Laws. The International Cop>Tight Act of 1886 extended the 1842 Act ])y making it possible to secure British copjTight by first pubHshing the w^ork m any British possession, provided, however, that where such first publication took place in any such possession, the enact- ments contained in the Act of 1842 respecting the reg- istry of the copyright in such work should not aj^jjly, if the law of such possession provided for the registration of such copjTight, and the local statute in force in tlie possession where first pubhcation took place had to be complied with. The 18SG Act contains the significant provision that nothing in that Act or in the 1842 Act "shall prevent the passing in a British possession of any Act or ordinance respecting the copyright within the limits of such pos- session, of works first produced in that possession." ^ * Section eight, subsection four. (364 THE LAW OF MOTION PICTURES The significance of this section Hes in the fact that under the local Canadian statute now in force, copyright may be acquired thereunder only by those who are "dom- iciled in Canada or in any part of the British possessions or any citizen of any country which has an international cop>Tight treaty with the United Kingdom." ^ Canada has consistently refused to recognize any relation existing between the United States and Great Britain which would bring the former within these pro- visions. Since the American may not apply for Canadian copyright under the local statute, then he may not, under the International Act of 1886, secure British copyright by first publishing in Canada. ^ To secure protection, therefore, in Canada, under the English Acts of 1842 and 1886, he must publish in those parts of the British dominions which permit him to secure copyright under the local statute, in which event he must comply with the local statute with respect to registration, where the statute makes provision for the same. And if there is no such provision in the local statute he must register in Stationers' Hall and make the deposit when so required. To avoid any complications, the safest course to pursue is to first publish in the United Kingdom and register in Stationers' Hall. TIk^ rights of an American citizen, non-resident in the British dominions, wiio first pul)lishe(l in the United King- dom, were not affected by this Act of 1886, and these '• Canadian Copyright Act 1886, of 1!K)0, as amended by tlie Laws § 1 (now Part I, cliupter 70, of of 1908). See Appendix, till- l{('vised Statut(!.s of ( "aiiada ("Ol'VKICII'l' IN DOMINION OF CANADA ((()') rifzilils wore ox])r('ssly rcco^iizcd l>y Ihv liiitisli govern- ment in 1891 by Lord Salisbury. In short, under the 1842 and 188G English Acts, still in force in Canada, an American citizen, resident in the United States, by first publisliing his motion j)ictiire in the United Kingdom, secures copyright in his film; and by registration in Stationers' Hall, is entitled to enforce his copyright in Canada. I'irst ])ublication has been held to take place under the Act of 1842 where there is simultaneous publication in this country and in the United Kingdom." And simul- taneous i)ublication will be deemed to be equivalent to first publication under the Act of 188G in view of the official assurance given to the United States.^ It must be borne in mind that the simultaneous pub- Hcation here spoken of is not made i)ursuant to the 1911 Act, and the fourteen days' grace provided for in the 1911 Act has no application whatsoever. Simultaneous pub- lication as here used, means pubUcation made on the same day in both countries. Although it has been held that registration in Sta- tioners' Hall is no longer possible because of the 1911 Act,^ yet, as a matter of fact, as late as July 20th, 1917, a coin- * Grossman v. Canada Cycle See also: Copinger, Law of Co. (Can.) (15)02), 5 O. L. R. 55; Copyright, 4th Ed., p. 89. Cocks V. rimlmj (Kng.) (1846), ''Lord Sali.sl)ur>': Official Brit- 2 Car. iV- Ivirw. 26'.); Routkdge ish I)is|)atch a(i(lres.scd to the V. Ijur (lliijr.) (ISOS), L. H., PiTsidciit (.f the United States ;i 11. L. 1(K). Puhlications in dated June 16tli, 1891. England and aWroad sinuilta- * A'rnfw v. Mom'i" (Eng.) (1913), ncoiisly will not prevent eopyriglit W. N. 58. in England. 666 THE LAW OF MOTION PICTURES munication emanating from an official of the Stationers' Company stated that works were still offered and ac- cepted for registration under the Act of 1842.^ Objection has been made to the regularity of this pro- cedure, upon the ground that the Act of 1911 has repealed the Act of 1842, in the United Kingdom, and that the steps of publication and registration may not be taken in that territory under a, repealed Act having no force therein. If that were the correct view, the provision under the 1911 Act holding the Acts of 1842 and 1886 valid with respect to the self-governing dominions, would be nuga- tory. For example, if this were so, a subject and resident of the United Kingdom desirous of protecting his copyright in Canada would be unable to protect his work by regis- tration, his 1911 Act would not extend into Canadian territory, and he would be compelled to comply with the local Canadian statute, which would necessitate re- publication by him in Canada and full compliance with the Canadian statute. A Canadian, on the other hand, by. first publishing in Canada and c()mi)lying with the Canadian statute with » "Stationers' Hull which luis adopted the Act of " London, 10. C'. 1911 seems wlioliy uniiccessjiry " July 20th, 1917. and useless expense. The fee is "Books published in (lanada 5.s'. per entry, not 'is." are still ref!;ist(>red hen; by the TIk; above iiifornialion and registerinj? offi(-er under the Act lett(>r were secured from "The of 1842, but reKistration of Publishers' Circular" Wcstrand, works first published in (.Irrnt liondon, issue of September 1st, Britain or any British possessicju 1*J17. COPYRIGHT IN DOMIN'ION OF CANADA 0G7 respect to registration, \v(juld secure a valid copyright in Canada as well as throughout the British dominions, inchiding the United Kingdom. We would have the anomalous situation of a Canadian having greater rights than those accorded a subject and resident of the United Kingdom. We do not believe that this was the intention of Parlia- ment. The 1911 Act rather intended to maintain the status quo with respect to England and her self-governing dominions which existed prior to its taking effect, until such time as each dominion saw fit to modify its law with respect to copyright. Method No. 2 Instead of relying upon the protection given in Canada by complying with the English Acts of 1842 and 1880 as above outlined, many Americans have sought to obtain copyright in Canada under the local statute by first se- curing copyright in their work in the United Kingdom under the present English statute, and thereafter claim- ing copyright under the local Canadian statute by virtue of Section thereof. That section (Section G of the Canadian Act of 1886) provides: "Every work of which the copyright has been granted, and copyright of which is not secured or sub- sisting in Canada, under any act of the Parliament of Canada . . . .shall, when printed and published, or re- printed and re])ublished in Canada be entitled to copy- right under this Act." The .Vmerican, having secured British copjTight in his work, would seem to be entitled to apply for local 668 THE LAW OF MOTION PICTURES Canadian copyright by re-printing and re-publishing his work in Canada. Although the precise question has not yet come before the Canadian courts, the Canadian Department of Agri- culture has expressly recognized the right of a citizen of the United States who has a subsisting British Copyright in his work, to secure copyright therein under the Cana- dian statute by complying with the requirements of the Canadian Act with respect to printing, publication, notice and deposit. The bulletin of the Department (Circular No. 4a) is given in full below. ^° The Canadian Act is given in full in the appendix. It should be remembered that where copyright pro- tection is secured under the local Canadian statute, such protection does not give the exclusive right to per- form the copyrighted work, since the Canadian statute confers no performing rights. This defect in the statute practically destroyed the " Circular No. 4a and to Forms A and Al, pages 19 and 20 of the Circular. DEPARTMENT OF AGRI- Canadian Copyright of a work CULTURE, ^iii jjg regist{M-ed in favor of a Copyright and Trade Mark citizen of the United States upon Branch, the applicant shewing that he has Ottawa, Canada, subsisting British copyright of Sin, such work and othorwiso coin- I beg herewith to enclose Circu- plying with the re(iuironicnts of lar containing The Copyriglit Act the Act, Rules and Forms, with Rules and Forms under the I have the honor to be, same. Sir, I would direct your attention Your obedient servant, to Sections 4, 0, 8, 11, 14 and 24 B. E. Ritchie, of the Act, to Rule IV, page 17, Registrar of CopyriglU, t&c. COPYRIGHT IN DOMINION OF CANADA 009 value of druiiKitic works whicli dciK'iidcd lor lluur copy- right upon the local statute. To remedy this condition, an aft was passed in 1915 making it a crime to perform without the ^\TittoIl consent of the copyright proprietor, ''in ])ublic and for jnivate jirofit the whole or any i)art of any dramatic or operatic work or musical composition in which copyright subsists." " Method No. 3 It has been contended, and with much logic, that an American, resident in the United States, and first pub- ' ' An Act to Amend the Criminal Code 5 George 5, Chap. 12 (April 15, 1915) Section 508 A. "Any person who, without tlic written consent of the owner of tlic copyright or of his legal representative, know- ingly i)erforins or causes to be jM'rfonned in i)ul)lic and for pri- vate profit the whole or any part, constituting an infringement, of any dramatic or operatic work or nnisical composition in which copyright subsists in Canada, shall he guilty of an offence, and shall he liable on summary con- viction to a fine not exceeding two hundred and fifty dollars, or, in tlie case of a second or sui)se(}uent otTeiice, either to such fine or to imprisonment for a time not ex- ceeding two months, or to both." Section 50SB. "Any person who makes or causes to be made any change in or suppression of the title, or the name of the au- thor, of any dramatic or oi)eratic work or musical composition in which copyright subsists in Cana- da, or who makes or causes to be made any change in such work or composition itself without the written consent of the author or of his legal representative, in order that the same may be per- formed in whole or in part in l)ublic for private profit, shall be guilty of an offence, and .shall \)C liable on summary conviction to a fin(> not exceeding five hundred dollars, or, in the ca.sc of a second or subsequent offence, either to such fine or to imprisonment for a term not exceeiling four months, or to both." G70 THE LAW OF MOTION PICTURES lishing in Canada, is entitled by reason of the Berne Convention to the full protection accorded to resident Canadians under the Canadian statute. Canada is by proxy a member of the Berne Convention, and of the additional Act of Paris of 1896 modifying the Berne Convention.^- Article three of the Berne Conven- tion, as modified by the additional Act of Paris, reads as follows: "Authors not belonging to one of the countries of the Union, who shall have published or caused to be pub- lished for the first time their literary or artistic works in a country which is a party to the Union, shall enjoy, in respect of such works, the protection accorded by the Berne Convention and by the present additional act." The Berne Convention and the additional Act of Paris are at the present time in full force and effect so far as Canada is concerned. The Berlin Convention of 1908, indeed, expressly provides in Article 27, that the Berne Convention and the additional Act "shall remain in force in regard to relations with states which do not ratify the present convention." Canada, not having taken any action with respect to the Berlin Convention is therefore bound by the Berne Convention and the additional Act of Paris. An Amer- ican then under Article 3 would seemingly have the right 'Miorno Convention was signed Great Britain, l)y Order in by Great Britain September 5, Council, adopted the additional 1887, and on November 28, 1887, act of Paris on IMan^h 7, an Order in Council was made 1898. by Great Britain giving full See Mary v. Hubert (Can.) effect to the convention through- (190G), 15 (^ue. K. B. 381. out the British Dominions. COPYRIGHT IN DOMINION Ol CANADA 071 to first publish in Canada and thereby secure copyright in Canada; and any provision in the Canadian statutes which attempts to d('j)riv(' liiin of that right, is in derogation of a solemn intenuitioniil compact.''^ The fact remains, however, that Canada refuses to consider herself bound by the Convention with respect to American authors." "Sec in tills connection: Cop- ingcr, Fifth Ed., p. 342, citing Smilcti V. Bdford (Can.) (1877), 1 Ont. App. R. 43G; Morang v. I'lihlisfwrs' SymUcale (Can). (11)00), 32 O. R. 393; Black v. Imperial Book Co. (Can.) (1903), 5 Ont. L. R. 1S4, (1905), 21 T. L. R. 540; Ilawkcs v. Whalcij, lioycc 6 Co., "The Author" for 1913, p. 202. See also: Ikiggs on Interna- tional Copyright (Stevens 6c llaynes, London, 190G), p. 625: "Even as it is, it may be pointed out that the Canadian law now in forc(>, which reiulers printing and l)ul)lishiMg, or reprinting and republishing in Canada, though without any limit of time, a con- dition of cojiyright, cannot oper- ate to prevent the author of a liritish work from gaining pro- tection in Canada without pub- lishing in that country. He gets this right under Ini|HTial legis- lation, which no Canadian stat- ute can override." '* Ilislory of Canadian Copyright legislation: While Imixjrial copyright has been greatly simplified by the Act of 1911, and this especially so with reference to motion pictures, Canadian copj'right has been thrown into confusion. The hjllowing is a brief review (jf the history of Canadian copy- right legislation which is essen- tial to a proper understanding of the subject. The English Literarj' Act of 1842 extended to every part of the Hriti.sh dominions, including of course Canada. Under that Act a British subject publish- ing in England obtained copj'- right in Canada as well, and was thereby enabled to prevent the imiMtrtation of cheap reprints or cilitions of his work into the colonies. This state of affairs gave rise to dissatisfaction in Canada, as it made the colony de|)endent uiKni the mother country for her 672 THE LAW OF MOTION PICTURES Section 194. — International Copyright. The revised Berne Convention of 1908, more popularly known as the Berlin Convention, provides in Article 6: books, and compelled her to pur- chase the expensive English edi- tions. English publishers, on the other hand, feared to publish cheap editions for the colonies because such books were apt to find their way back to Eng- land. To relieve this condition the Foreign Reprints Act of 1847 was passed in England. Under this Act, British reprints were allowed to be imported into Canada under certain conditions, but the Act proved wholly un- satisfactory to Canada, and failed to remedy the conditions of which that dominion complained. The position as to. reprints was greatly modified by the 1875 Act luTcinafter discussed under which the British subject, by publishing and printing a Canadian edition, could exclude foreign reprints, although not himself permitted to imi)ort his Britisli edition, and under which, if he did not publish and print in Canada, he wa.s permitted to import his British edition and suppress mul- ti[)licati()n of copies in Canada, but could not, under Ihe terms of the 1847 Act, prevent the impor- tation of foreign reprints. The Foreign Reprints Act con- cerns itself only with books. In 1862 The Fine Arts Act was passed in England giving pro- tection to drawings, paintings and photographs. This Act was held, however, not to extend to Can- ada. Graves v. Garrie (Can.) (1903), A. C. 496; Tuck & Sons V. Priester (Can.) (1887), 19 Q. B. D. 629. It will thus be seen that in 1862 photographs were copyrightable in England, but were not protected in Canada, while lit(>rary works first pub- lished in iMigland enjoj'^ed copy- right protection in Canada. While one first publishing a literary work in tlic United Kingdom se- cured copyright enforceable in Canada, a Canadian, first pub- lishing in Canada secured no such reciprocal rights in England until the International Coi)vright Act of 1S,S6. Although she liad jKussed a copyright statute in 1832, Can- ada passed her first important local coi)yright law in 1X7"). This ;u't \v;is repealed by tlu! Act INTERNATIONAL COPYRIGHT G73 "Authors not being subjects or citizens of one of the countries of tlie Union, who first pubHsh thoir works in f)f ISSf) wliicli is the fuiulamoiital copyright statute now in force. This statute grants protections for twenty-eiglit years to persons domiciled in Canada or the British dominions, and subjects of countries having treaties with Great Britain. Tiie Act also provides that all works given the protection of copyright are re- (juirctl to \>c first published in Canada, a dep<^sit of copies made and a notice of copjTight printed. The olTect of this act and its amendatory acts of 1889 (never approved by the Crown) and 1900 have been much discussed in their relation to the Imj)crial Acts, and the weight of authority now seems to be that the local acts of the Colony may not in any way abrogate the Imperial Statutes. In other words, Canada may not, unless expressly au- thorized by England, pass any act which will affect any subsist- ing Britisli Copyright. She could and she ilid pa.'ss acts which conferred local copyright, but in so far as these actxS attempt to curtail or destroy any right.s granted under the British Acts or treaties they must be deemed ineffective. As a colony, however, Canada always felt that she was em[X)w- ered to legislate for herself with resjxjct to copyright, and this pcjsition was considerably streng- thened by the British North American Act of 1867 which provided for the consolidation of Canada, Nova Scotia and New Brunswick, and for a Parliament which was e.xpressly empowered to legislate exclusively, among other subjects, on copyright. The al)ortive Act of 1889 illustrates the length to which the Canadian Parliament went to enact copy- right legislation which was not only oijcnly hostile to the United States but to England as well. The Act was never approved by the Crown, but owing to the feeling on Canada's part that she was the subject of discrimina- tion on the part of the United States, a concession was made to her by the mother country and another Act pa.ssed by the Cana- dian Parliament in 1900 was approved, by which Canada was enabled in certain instiinccs to jirevent the importations of books copyrighted in the United King- dom i)ut printetl elsewhere. Canada's cliief grievance 674 THE LAW OF MOTION PICTURES one of those countries shall enjoy in that country the same rights as native authors, and in the other countries of the Union the rights granted by the present Conven- tion." This pro\'ision in effect gives international copyright to an American author who merely first publishes in any country of the Union (e. g., in the United Kingdom). Since the Convention provides that the enjoyment and exercise of the rights granted thereunder shall not be subject to the performance of any formahty, the mere first pubhcation confers protection. This convention has been modified by the additional Protocol of 1914 to the extent that where any country outside of the Union fails to give adequate protection to the works of authors who are subjects or citizens of one of the Union countries, nothing in the provisions of the convention shall be deemed to prejudice in any manner whatsoever the right of the contracting states to impose restrictions upon the protection accorded to works the authors of which are, at the time when such works are first published, subjects or citizens of any such country outside the Union, and not actually domiciled in one of the Union countries. against the United States is that without such restriction. Her the American statute makes it cliic^f clTort has been to pass re- obhgatory ff)r foreign Enghsh tahatory legislation, but in that books (whicli iiichule Canadian respect England has balked her, books) to 1)(! set up in type and a policy to \vhi(rh I'^ngland feels printed witiiin tlic V.uWvd States, herself c-oininitted by reason of while American works in which her membershi|) in the inter- British copyright is subsisting, national copyright convention, may be imported into Canada INTERNATIONAL COPYRIGHT 675 It is important to bear in mind that no protection is accorded hy ihv. convention to the unpublished works of citizens of a non-union country. The countries who are niem))ers of th(> Berhn Conven- tion are, the United Kingdom of Great Britain and Ire- land, India, Germany, Belgium, Denmark, Spain, France, Italy, Japan, Republic of Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, and Tunis. APPENDIX UNITED STATES COPYRIGHT ACT OF 1909, AS AMENDED BY THE ACTS OF 1912, 1913 AND I'll 1 An Act to Amend and Consolidate the Acts Respecting Copyright Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right : (a) To print, reprint, publish, copy, and vend the cojiyrighted work; {b) To translate the copyrighted work into other lan- guages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it l)o a model or design for a work of art; (c) To deliver or authorize the delivery of the copy- righted work in public for profit if it be a lecture, sermon, address, or similar production; {d) To perform or represent tiie cojjvrightcd work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript 077 678 APPENDIX or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, repre- sent, produce, or reproduce it in any manner or by any method whatsoever; (e) To perform the copyrighted work pubhcly for profit if it be a musical composition and for the purpose of pubHc performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrange- ment or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: Provided, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: And provided further, and as a con- dition of extending the copyright control to such mechanical reproductions, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyriglilcd work upon the parts of instruments serving to reproduce mechanically the mu- sical work, any other person may make similar use of the copyrighted work upon the payment to the copy- APPENDIX 070 right proprietor of a royalty of two cents on eacli such part manufactured, to be paid by the manufacturer thereof; and the ropyrif:;ht proprietor may re(iuire, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for*by this section shall free the articles or devices for which such royalty has been paid from further contribution to tlie copyright except in case of public performance for profit : And provided further, That it shall be the duty of the copyright owner, if he uses the musical composition him- self for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or j)roceeding for any infringement of such copy- right. In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the dat(^ of such tlemand the court may award taxable costs to the plaintiflF and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of tliis Act, not exceeding three times such amount. 68d APPENDIX The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendi- tion occurs. Sec. 2. That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to pre- vent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor. Sec. 3. That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copy- right is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the pro- prietor thereof all the rights in respect thereto which he would ha\'e if each part were individually copyrighted under this Act. Sec. 4. That the works for which copyright may be secured under this Act shall include all the writings of an author. Se(". 5. That the application for registration shall spec- ify to which of the following classes the work in which copyright is claimed belongs: (a) Books, including composite and cyclopiedic works, directories, gazetteers, and oihv.r com])ilations; (6) Periodicals, including newspapers; (c) Lectures, sermons, addresses (prepared for oral delivery) ; {d) Dramatic or dramatico-musical compositions; APPENDIX 681 (e) Musical compositions; (/) Maps; ig) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (0 Drawings or plastic works of a scientific or tech- nical character; (j) Photographs; (k) Prints and pictorial illustrations; (J) Motion-piciare pliotophiys; (m) Motion pictures other than photoplays.^ Provided, nerertJteless, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in ' classification invalidate or impair the copyright pro- tection secured under this Act. Sec. G. That compilations or abridgments, adapta- tions, arrangements, dramatizations, translations, or other versions of works in the jniblic domain, or of copy- righted works when produced with the consent of the jiroprietor of the copyright in such works, or works repub- lished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the ])ubli('ation of any such new works shall not afTect the force or validity of any subsisting copyright upon the matter emphjyed or any part thereof, or be construed to imply an -exclusive right to such use of the original works, or to secure or extend copyright in such original works. Sec. 7. That no copyright .shall subsist in the original ' Tlie olianROs marked, aiul the additittn of the words |)riiit('d in italics are authorized by the amendatory Act of August 24, I'JIJ. 682 APPENDIX text of any work which is in the pubHc domain, or in any work which was pubhshed in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any pubhcation of the United States Government, or any reprint, in whole or in part, thereof: Provided, however, That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor. Sec. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however. That the copyright secured by this Act shall extend to the work of an author or pro- prietor who is a citizen or subject of a foreign state or nation, only: (a) When an alien author or proprietor shall be domi- ciled within the United States at the time of the first publication of his work; or (6) When the foreign state or nation of which such author or proi)rietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright pro- tection substantially equal to the protection secured to such foreign author under this Act or by tn^aty; or when siu'h foreign stat,(; or nation is a party to an international APPENDIX 083 aKrcoinont which pnjvides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. Tlio existence of the reciprocal conditions aforesaid shall be (letcrniincd by the President of the United States, by proclamation made from time to time, as the purposes of this Act may rccjuirc. Skc. 9. That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof i)ublished or ofTered for sale in the United States by authority of the cop>Tight proprietor, except in the case of l)ooks seeking ad interim protection under section twenty-one of this Act. Sec. 10. That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the register of copyrights shall issue to hnii the certificate provided for in section fifty-five of this Act. Sec. 11. That cojiyright may also be had of the works of an author of which coi)ies are not reproduced for sale, by the deposit, willi claim of copyright, of one complete copy of such work if it be a liM-ture or similar production or a dramatic, musical, or drainatico-musical composition; ()/ a tillc and description, with one print taken from each scene or ad, if the icork be a motion-picture photoplay : of a ]ihotogra])hic ]>rint if the work be a photograph; of a title and dc,-Tight was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclu- sive, of section five of this act, the notice may consist of the letter C inclosed within a circle, thus: 0> accom- panied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible 688 APPENDIX portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is subsisting when this act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hun- dred and seventy-four. Sec. 19. That the notice of copyright shall be applied, in the case of a book or other printed publication, upon its title-page or the page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music: Provided, That one notice of copyright in each volume or in each number of a news- paper or periodical published shall suffice. Sec. 20. That where the copyi'ight proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyi'ight or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled l)y the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright i)r()pri('t<)r sliall reiml)urse to tin; innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct. APPENDIX 089 Sec. 21. Tluit in the case of a book published abroad in the English language before publication in this country, the deposit in ihc copyright oflico, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a .statement of the name and nation- ality of the author and of the cop>Tight proprietor and of the date of puljlication of the said book, shall .secure to the author or proprietor an ad interim copyright, which shall have all the force and effect given to copyright l)y this Act, and shall endure until the expiration of thirty days after such deposit in the copyright office. Sec. 22. That whenever within the period of such ad interim protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act. Sec. 23. That the copyright secured by this Act shall endure for twenty-eight years from the date of first pub- lication, whether the copyrighted work bears the author's true name or is published anonymously or under an a.s- sumed name: Provided, That in the case of any posthu- mous work or of any i)eri()dical, cydopiedic, or other com- posite work upon which the copyright was originally secured by the proprietor thereof, or of any work copy- righted by a corporate body (otherwise than as assignee 690 APPENDIX or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and exten- sion of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copy- righted work, including a contribution by an individual author to a periodical or to a cyclopaedic or other compos- ite work when such contribution has been separately reg- istered, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or chil- dren be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copjTight office and duly registered therein within one year prior to the expiration of the original term of copyright : A nd provided further, That in default of the registration of such application for renewal and exten- sion, the copyright in any work shall determine at the expiration of twenty-eight years from first publica- tion. Sp:c. 24. That the copyright subsisting in any work at the time when this Act goes into effect may, at the expira- tion of the term provided for under existing law, be renewed and extended by the autlior of such work if still APPENDIX <>'H li\iiig, or tlio widow, widower, or rhildron of tho author, if the author he not living, or if such autlior, widow, widowor, or ciiikh-on he not hvinj^, then hy the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal l)eri()d: Proridcd, Jtourrcr, That if the work be a com- posite work upon wliich copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: Provided, That application for such renewal and extension shall be made to the copyright ofFice and duly registered therein within one year prior to the expiration of the existing term. Sec. 25. That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: (a) To an injunction restraining such infringement; (6) To pay to the copyright proi)rietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every ele- ment of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in ' case of a newspaper reproduction of a coj)y- ' Tlu; word "tho" before the words "case of a newspaper reproduc- tion," etc., was struck out l>y the amendatory .\ct of August 24, 1912. (392 APPENDIX righted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and in the case of the infringement of an undramatized or nondramatic work hy means of motion pictures, where the infringer shall show that he was not aware that he was infringing, and that such infringement could not have been reasonably foreseen, such damages shall not exceed the sum of one hundred dollars; and in the case of an infringement of a copyrighted dramatic or dramatico-musical work by a maker of motion pictures and his agencies for distribution thereof to exhibitors, where such infringer shows that he was not aware that he was infringing a copyrighted work, and that such infringements could not reasonably have been foreseen, the entire sum of such dam- ages recoverable by the copyright proprietor from such in- fringing maker and his agencies for the distribution to exhibitors of such infringing motion picture shall not exceed the sum of five thousand dollars nor be less than two hundred and fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty. But the foregoing exceptions shall not deprive the copyright proprietor of any other remedy given him under this law, nor shall the limitation as to the amount of recovery apply to infringements occurring after the actual notice to a defendant, either by service of process in a suit or other written notice served upon him} First. In the case of a painting, statue, or sculp- ture, ten dollars for every infringing c()j)y made or ' Tlic words printod in italics indicato the amendments authorized hy tlic uinondutor}' Act of Aiij^ust 21, l'.)12. APPENDIX 003 sold by or found in tlic possession (jf the infringer or his agents or employees; Second. In the case of any work enumerated in section five of this Act, except a painting;, statue, or sculpture, one dollar for every infringing; copy made or sold by or found in the possession of the infringer or his agents or employees; Third. In the case of a lecture, sermon, or ad- dress, fifty dollars for every infringing delivery; Fourth. In the case of a dramatic or dramatico- musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance; (c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and condi- tions as the court may prescribe, all articles alleged to infringe a copyright; (d) To deliver up on oath for destruction all the in- fringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order; (e) Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringe- ment of such copyright by the unauthorized manufac- ture, use, or sale of interchangcal)le parts, such as disks, rolls, bands, or cylinders for use in mechanical music- producing machines adapted to reproduce the copyrighted 694 APPENDIX music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as pro- vided in section one, subsection (e), of this Act: Provided also, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composi- tion upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the com- pulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a dupli- cate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid. Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States. Sec. 26. That any court given jurisdiction under sec- tion thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of an}^ ])ro- vision hereof to enter a judgment or decree enforcing the remedies herein provided. Sec. 27. That the proceedings for an injunction, dam- ages, and profits, and those for the seizure of infringing (•()))i('s, |)hit('s, molds, matrices, and so forth, afonunea- tioned, may be united in one action. APPENDIX 695 Sec. 28. That any })ors()ii who wiUfuU}' and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringe- nuMit, shall bo deemed guilty of a misdemeanor, and upon conviction thereof shall be punished In' iinjirisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court: Provided, however, That nothing in this Act shall be so construed as to pre- vent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by ])ub- lic schools, church choirs, or vocal societies, rented, bor- rowed, or obtained from some public library', public school, church choir, school choir, or vocal society, pro- vided the performance is given for charitable or educa- tional purposes and not for profit. Sec. 29. That any person who, with fraudulent intent, shall insert or impress any notice of ct)pyright required by this Act, or words of the same pm-port, in or upon any uncopjTighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copjTight which has not been copyrighted in this country, or who shall knowingly import any ar- ticle bearing such notice or words of the same puri^ort, which has not been cop>Tighted in this country-, shall be liai)le to a fine of one hundred dollars. Sec. 30. That the importation into the United States 696 APPENDIX of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited. Sec. 31. That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprie- tor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited: Provided, however, That, except as regards piratical copies, such prohibition shall not apply: (a) To works in raised characters for the use of the blind; (6) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the co})}Tight pro- prietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such au- thorization: (c) To the authorized edition of a book in a foreign language or languages of which only a translation into I'^nglish has been coiwrighted in tliis country; ((I) To any book published al)road with the authoriza- tion of the author or ('oi)yright proprietor when imported APPENDIX 097 under the circumstances stated in one of the four subdi- visions following, that is to say: First. When inii)orted, not more than one copy at one time, for individual use and not for sale; but sucli privilege of inii)ortation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States; Second. When imported by the authority or for the use of the United States; Third. ^Mien imported, for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, hterarj', philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any. State, school, college, university, or free public library in the United States; Fourth. When such books form parts of libraries or collections piu*chased en bloc for the use of so- cieties, institutions, or libraries designated in the foregoing jiaragraph, or form parts of the libraries or personal baggage belonging to persons or fami- lies arriving from foreign countries and are not intended for sale: Pruridcd, That copies imported as above may not lawfully be used in any way to violate the rights of the jiroprietor of the .Vmerican copjTight or annul or limit the cop>Tight protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright. 698 APPENDIX Sec. 32. That any and all articles prohibited importa- tion by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the cus- toms revenue laws. Such articles when forfeited shall be destroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: Provided, however, That all copies of authorized editions of copy- right books imported in the mails or otherwise in viola- tion of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a WTitten application, that such importation does not in- volve willful negligence or fraud. Sec. 33. That the Secretary of the Treasury and the Postmaster-General are hereby empowered and requh'ed to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury De- I)artment or Post-OfTice Department, as the case may be, by copyright i)roprietors or injured parties, of the actual or cf)nt('iiii)lated importation of articles prohibited im- portation by this Act, and which infringe the rights of such copyright proprietors or injured parties. Sec. 34. That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cogiii/.-iMcr by the circuit courts of the United States, the district court of any Territory, the supreme APPENDIX 699 court of tlic District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands. Sec. 35. That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found. Sec. 3G. That any such court or judge thereof shall have power, upon bill in equity filed by any party ag- gi-icved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may bo granted restraining and enjoining the doing of anything forl^idden by this Act may be served on the parties against whom such injunction may be granted anj-^vhcre in the United States, and shall be operative throughout the United States and be enforce- able by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the de- fendants. Sec. 37. That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the a])plication to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office. Sec. 3S. That the orders, judgnients, or decrees of any court mentioned in section thirty-four of this Act arising under the coj)yright laws of the United States may he reviewed on appeal or writ of error in the manner and to 700 APPENDIX the extent now provided by law for the review of cases determined in said courts, respectively. Sec. 39. That no criminal proceeding shall be main- tained under the provisions of this Act unless the same is commenced within three years after the cause of action arose. Sec. 40. That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reason- able attorney's fee as part of the costs. Sec. 41. That the copyright is distinct from the prop- erty in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copjTight, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the pos- session of w^hich has been lawfully obtained. Sec. 42. That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or mav be bequeathed by will. Sec. 43. That every assignment of copyright executed in a foreign country shall be acknowledged by the as- signor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of sudi ac- knowledgment under the hand and official seal of such APPENDIX 701 consular officer or secretary of legation shall be ijrima facie evidence of the execution of the instrument. Sec. 44. That every assignment of copyright sliall \)g recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purcha.ser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded. Sec. 45. That the register of copyrights shall, upon pajinent of the prescribed fee, record such assignment, and shair return it to the sender with a certificate of record attached under seal of the copyright office, and upon the pa}Tnent of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal. Sec. 4G. That when an assignment of the copyright in a specified book or other work has been recorded the as- signee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act. Sec. 47. That all records and other things relating to copyrights required by law to be preserved shall be kept and preserved in the copyright office, Library of Con- gress, District of Columbia, and shall be under the control of the register of copyrights, who shall, under the direc- tion and supervision of the Librarian of Congress, per- form all the duties relating to the registration of copy- rights. Sec. 48. That there shall be appointed by the Librarian of Congress a register of copyrights, at a salary of four 702 APPENDIX thousand dollars per annum, and one assistant register of copyrights, at a salary of three thousand dollars per annum, who shall have authority during the absence of the register of copyrights to attach the cop>Tight office seal to all papers issued from the said office and to sign such certificates and other papers as may be necessary. There shall also be appointed by the Librarian such sub- ordinate assistants to the register as may from time to time be authorized by law. Sec. 49. That the register of copyrights shall make daily deposits in some bank in the District of Columbia, designated for this purpose by the Secretary of the Treas- ury as a national depository, of all moneys received to be applied as copyright fees, and shall make weekly de- posits with the Secretary of the Treasury in such manner as the latter shall direct, of all copyright fees actually applied under the provisions of this Act, and annual deposits of sums received which it has not been possible to apply as copyright fees or to return to the remitters, and shall also make monthly reports to the Secretary of the Treasury and to the Librarian of Congress of the applied copyright fees for each calendar month, together with a statement of all remittances received, trust funds on hand, moneys refunded, and unpaid balances. Sec. 50. That the register of copyrights shall give bond to the United States in the sum of twenty thousand dol- lars, in form to be approved by the Solicitor of the Treas- ury and with sureties satisfactory to tlie Secretary of the Treasury, for tlie faithful discharge of liis duties. Sec. 51. That the register of copyrights shall make an annual report to the Librarian of Congress, to be printed APPENDIX 70:i in tlio annual report on the Library of r'ongre.s.s, of all copyright business for the previous fiscal year, including the number and kind of works which have been deposited in the copyright ollice during the fiscal year, under the l)ro visions of this Act. Sec. 52. That the seal provided under the Act of July eighth, eighteen hundred and seventy, and at present used in the copyright office, shall continue to be the seal tliereof, and by it all paj)ers issued from the copjTight office requiring authentication shall be authenticated. Sec. 53. That, subject to the approval of the I.ibrarian of Congress, the register of copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act. Sec. 54. That the register of coi)yrights shall provide and keep such record books in the copyright office as are re(iuired to carry out the pro\isions of this Act, and whenever deposit has been made in the copyright office of a copy of any work under the provisions of this Act he shall make entry thereof. Sec. 55. That in the case of each entry the person re- cordetl as the claimant of the copyright shall be entitled to a certificate of registration under seal of the copyright office, to contain the name and address of said claimant, the name of the country of which the author of the work is a citizen or subject, and when an alien author domiciled in the United States at the time of said registration, then a statement of that fact, including his place of domicile, the name of the author (when the records of the copyright office shall show the same), the title of the work which is registered for which copyright is claimed, the date of the deposit of 704 APPENDIX the copies of such work, the date of publication if the work has been reproduced in copies for sale, or publicly distrib- uted, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affi- davit, as provided by section sixteen of this Act, and the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The register of copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for in the case of all registrations made after this Act goes into effect, and in the case of all previous registrations so far as the copyright office record books shall show such facts,^ which certificate, sealed with the seal of the copyright office, shall, upon payment of the prescribed fee, be given to any person making application for the same. Said certificate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the register of copjTights shall furnish, upon request, without additional fee, a re- ceipt for the copies of the work deposited to complete the registration. Sec. 56. That the register of copyrights shall fully index all copyright registrations and assignments and shall print at periodic intervals a catalogue of the titles of articles deposited and registered for copyright, together with suital)lo indexes, and at stated intervals shall print complete and indexed catalogues for each class of copy- right entries, and may thereupon, if expedient, destroy ' The words printed in italics indicate the amendments authorized by th(; arnondatory Act of March 2, 1913. APPENDIX 705 the orij^inal manusrript catalogue cards containing the titles included in sucli j)rinted volumes and representing the entries made during such intervals. The current cata- logues of copyright entries and the index volumes herein provided for shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copy- right registration. Sec. 57. That the said printed current catalogues as they are issued shall be promptly distributed by the copy- right office to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails, in accordance with revised lists of svich collectors of customs and postmasters prepared by the Secretary of the Treasury and the Postmaster- General, and they shall also be furnished to all parties desiring them at a price to be determined by the register of copyrights, not exceeding five dollars per annum for the complete catalogue of copyright entries and not ex- ceeding one dollar per annum for the catalogues issued during the year for any one class of subjects. The con- solidated catalogues and indexes shall also be supplied to all persons ordering them at such prices as may be deter- mined to be reasonable, and all subscriptions for the catalogues shall be received by the Superintendent of Public Documents, who shall forward the said publica- tions; and the moneys thus received shall be paid into the Treasury of the United States and accounted for under such laws and Treasury regulations as shall be in force at the time. Sec. 58. That the record books of the copyright office, together with the indexes to such record books, and all 706 APPENDIX works deposited and retained in the copjright office, shall be open to public inspection; and copies may be taken of the copyright entries actually made in such record books, subject to such safeguards and regulations as shall be prescribed by the register of copyrights and approved by the Librarian of Congress. Sec. 59. That of the articles deposited in the copyright office under the provisions of the copyright laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be transferred to the permanent collections of the Library of Congress, including the law library, and what other books or articles shall be placed in the reserve collections of the Library of Congress for sale or exchange, or be transferred to other governmental libraries in the Dis- trict of Columbia for use therein. Sec. 60. That of any articles undisposed of as above provided, together with all titles and correspondence re- lating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is desirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter provided, may within their discretion cause the remain- ing articles and other things to be destroyed: Provided, That there shall be printed in the Catalogue of Copy- right Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice; to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year any- APPENDIX 7(J7 thing found which relates to any of his productions de- ])osited or registered for C()i)yright witliin the jK'riod of years stated, not reserved or disposed of as provided for in this Act: And provided further, That no manuscript of an unpu})lished work shall be destroyed during its term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and re- move it. Sec. 61. That the register of copyrights shall receive, and the persons to whom the services designated are ren- dered shall pay, the following fees: For the registration of any work subject to copyright, deposited under the provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every addi- tional certificate of registration made, fifty cents. For recording and certifying any instrument of wTiting for the assigmiient of copyright, or any such license specified in section one, subsection (e), or for any copy of such assign- ment or license, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar ad- ditional for each one thousand words or fraction thereof over tlu-ee hundred words. For recording the notice of user or acquiescence specified in section one, subsection (e), twenty-five cents for each notice if not over fifty words, and an additional twenty-five cents for each addi- tional one hundred words. For comparing any copy of an assigmiient with the record of such document in the 708 APPENDIX copyright office and certifying the same under seal, one dollar. For recording the extension or renewal of copy- right provided for in sections twenty-three and twenty- four of this Act, fifty cents. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article, in addition to the fee prescribed for recording the instrument of assign- ment. For any requested search of copyright office rec- ords, indexes, or deposits, fifty cents for each full hour of time consumed in making such search: Provided, That only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time. Sec. 62. That in the interpretation and construction of this Act ''the date of publication" shall in the case of a work of which copies are reproduced for sale or distribu- tion be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority, and the word "author" shall include an employer in the case of works made for hire. Sec. G3. That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but noth- ing in this Act shall affect causes of action for infringe- ment of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall ha prosecuted to a con- clusion in the manner heretofore provided by law. Sec. 64. That this Act shall go into effect on the first day of July, niiK^tccn hundred and nine. Approved, ^larcli 4, 1909. APPENDIX 709 NOTE TO SECTION 18, PROVISO The Act of June IS, 1874, provides that the notice of copyright to be inscribed on each copy of a cop>Tighted worlv shall consist of the following words: "Entered according to Act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington"; or, . . . the word "CopjTight," to- gether with the year the copyright was entered, and the name of the party by whom it was taken out, thus: "Copyright, 18— by A. B." PRESIDENTIAL PROCLAMATIONS [See Sec. 8] The following proclamations have been issued by the President, by which copyright protection is granted in the United States to works of authors who are citizens or subjects of the countries named. It is to be noted that this protection does not include ''copyright controlling the parts of instruments serving to reproduce mechanic- ally the musical work" provided in Sec. 1 (e) of the Act of March 4, 1909, except in the case of the countries named in the second part of this hst, viz : Belgium, Cuba, Germany, Great Britain, Hungary, Italy, Luxemburg, and Norway. July 1, 1891 — Belgium, France, Great Britain and the British possessions, and Switzerland. (Stat. L., vol. 27, pp. 981-982.) April 15, 1892— Germany. (Stat. L., vol. 27, pp. 1021- 1022.) October 31, 1892— Italy. (Stat. L., vol. 27, p. 1043.) May 8, 1893— Denmark. (Stat. L., vol. 28, p. 1219.) July 20, 1893— Portugal. (Stat. L., vol. 28, p. 1222.) July 10, 1895— Spain. (Stat. L., vol. 29, p. 871.) February 27, 189G— Mexico. (Stat. L., vol. 29, p. 877.) May 25, 1896 Chile. (Stat. L., vol. 29, p. 880.) October 19, 1899— Costa Rica. (Stat. L., vol. 31, pp. 1955-19.')G.) 710 APPENDIX 711 November 20, 1899 — Netherlands and possessions. (Stat. L., vol. 31, p. 19G1.) November 17, 1903— Cuba. (Stat. L., vol. 33, pt. 2. p. 2324.) January 13, 1904— China. (Treaty of October 8, 1903. ^Vrticle XI.) (Stat. L., vol. 33, pt. 2, pp. 2208, 2213-2214.J July 1, 1905— Nor\vay. (Stat. L., vol. 34, pt. 3, pp. 3111-3112.) May 17, 1906 — Japan. (Treaty of November 10, 1905.) (Stat. L., vol. 34, pt. 3, pp. 2890-2891.) September 20, 1907 — Austria. (Stat. L., vol. 35, pt. 2, p. 2155.) April 9, 1908 — Convention between the United States and other powers on literary and artistic copjTights, signed at the City of Mexico, January' 27, 1902. (This treaty is effective from July 1, 190S, as between the United States and the following countries: Guatemala, Salvador, Costa Rica, Honduras, and Nicaragua.) (Stat. L., vol. 35, pt. 2, pp. 1934-194G. English, French, and Spanish texts.) August 11, 1908— Japan. (Treaty of May 19, 1908, for protection hi Cliina.) (Stat. L., vol. 35, pt. 2, pp. 2044-204G.) August 11, 1908— Japan. (Treaty of May 19, 1908, for j)rotection in Korea.) (Stat. L., vol. 35, pt. 2, pj). 2041-2043.) April 9, 1910— Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Cerman}', Great Britain and her possessions, Italy, Mexico, the Netherlands and i)os- sessions, Norway, Portugal, Spain, and Switzerland. (Stat. L., vol. 30, pt. 2, pp. 2685-2686.) 712 APPENDIX June 29, 1910— Luxemburg. (Stat. L., vol. 36, pt. 2, p. 2716.) May 26, 1911— Sweden. (Effective June 1, 1911.) (Stat. L., vol. 37, pt. 2, pp. 1682-1683.) October 4, 1912— Tunis. (Stat. L., vol. 37, pt. 2, p. 1765.) October 15, 1912 — Hungary. [Copyright convention between the United States and Hungary, effective Oc- tober 16, 1912, including protection under Sec. 1 (e).] (Stat. L., vol. 37, pt. 2, pp. 1631-1633.) July 13, 1914 — Copyright convention between the United States and other American Republics, signed at Buenos Aires, August 11, 1910. (Effective from July 13, 1914, as between the United States and the following countries: Dominican Republic, Guatemala, Honduras, Panama, Nicaragua, and Ecuador. The Governments of Bolivia, Brazil, Costa Rica, and Salvador have an- nounced through diplomatic channels the adhesion of those countries to this convention.) (Stat. L., vol. 38, pt. 2, pp. 1785-1798. Spanish, English, Portuguese, and French texts.) PRESIDENTIAL PROCLAMATIONS UNDER SECTION 1 (e) December 8, 1910 — Germany. (Stat. L., vol. 36, pt. 2, pp. 2761 2702.) Jiine 14, 1911 — Belgium, Luxemburg, and Norway. (Stat. L., vol. 37, pt. 2, pp. 1687-1690.) November 27, 1911— Cuba. (Stat. L., vol. 37, pt. 2, pp. 1721 1722.) October 15, 1912 — Hungary. (See above.) APPENDIX 7i:i January 1, 1915 — Great Britain. (British order in council issued February 3, 1915, effective January 1, 1915.) (Stat. L., vol. 38, pt. 2, pp. 2044-2045.) May 1, 1915— Italy. RULES ADOPTED BY THE SUPREME COURT OF THE UNITED STATES FOR PRACTICE AND PROCEDURE UNDER SECTION 25 OF AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT, APPROVED MARCH 4, 1909. TO GO INTO EFFECT JULY 1, 1909 The existing rules of equity practice, so far as they may be applicable, shall be enforced in proceedings instituted under section twenty-five (25) of the act of March fourth, nineteen hundred and nine, entitled "An act to ^mend and consolidate the acts respecting copyright." A copy of the alleged infringement of copyright, if actually made, and a copy of the work alleged to be in- fringed, should accompany the petition, or its absence be explained; except in cases of alleged infringement by the public performance of dramatic and dranuitico-nmsical compositions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculp- tures and other similar works and in any case where it is not feasible. 3 Upon the institution of any action, suit, or proceeding, or at any tunc thereafter, and before; tlic entry of final 714 APPENDIX 715 judgmpnt or decree therein, the plaintiff or complainant, or his authorized agent or attorney, may file with the clerk of any court given jurisdiction under section 34 of the act of March 4, 1909, an affidavit stating, upon the best of his knowledge, information, and belief, the number and location, as near as may be, of the alleged infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copy- right, and the value of the same, and with such affidavit shall file with the clerk a l)ond executed by at least two sureties and approved by the court or a conuuissioner thereof. Such bond shall bind the sureties in a specified sum, to be fixed by the court, but not less than twice the reason- able value of such infringing copies, plates, records, molds, matrices, or other means for making such in- fringing copies, and be conditioned for the prompt pros- ecution of the action, suit or proceeding; for the return of said articles to the defendant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the de- fendant; and for the pa\inent to the defendant of any daniag(^s which tlie court may award to him against the plaint ilT or complainant, l^pon the filing of said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the marshal of the district where the said infringing coi)ies, jilates, records, mollis, mat- rices, etc., or other means of making such infringing copies shall be stated in said affidavit to be iocatcHl, and 716 APPENDIX generally to any marshal of the United States, directing the said marshal to forthwith seize and hold the same subject to the order of the court issuing said writ, or of the court of the district in which the seizure shall be ijiade. The marshal shall thereupon seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably necessary in the premises, and serve on the defendant a copy of the affidavit, writ, and bond by dehvering the same to him personally, if he can be found within the district or if he can not be found, to his agent, if any, or to the person from whose possession the articles are taken, or if the owner, agent, or such person can not be found within the district by leaving said copy at the usual place of abode of such owner or agent, with a person of suitable age and discretion, or at the place where said articles are found, and shall make immediate return of such seizure, or at- tempted seizure, to the court. He shall also attach to said articles a tag or label stating the fact of such seizure and warning all persons from in any manner interfering therewith. 6 A marshal who has seized alleged infringing articles, shall retain thorn in his possession, keeping them in a secure place, subject to the order of the court. 7 Within three days after the articles are seized, and a copy of the affidavit, writ and bond are served as herein- APPENDIX 717 before provided, the defendant shall serve upon the clerk a notice that he excepts to the amount of the penalty of the bond, or to the sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waivod all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the court sus- tain the exceptions it may order a new bond to be exe- cuted by the plaintiff or complainant, or in default thereof within a time to be named })y the court, the property to be returned to the defendant. 8 Within ten days after service of such notice, the attor- ney of the plaintiff or complainant shall serve upon the defendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the court or a judge thereof at the time therein stated. 9 The defendant, if he does not except to the amount of the penalty of the bond or the sufficiency of the sureties of the ])laintilT or c()mi)lainant, may make apj)lication to the court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circum- stances tending to show that the articles seized are not infringing coj)ies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copy- right. 10 Thereupon the court in its discretion, and after such hearing as it may direct, may order such return upon the 718 APPENDIX filing by the defendant of a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the court, and conditioned for the delivery of said specified articles to abide the order of the court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond. 11 Upon the granting of such application and the justifica- tion of the sureties on the bond, the marshal sha.ll imme- diately deUver the articles seized to the defendant. 12 Any service required to be performed by any marshal may be performed by any deputy of such marshal. 13 For services in cases arising under this section, the marshal shall be entitled to the same fees as are allowed for similar services in other cases. COPYRIGHT By the President of the United States of America a proclamation Whereas it is provided by the act of Con^^ess of March 4, 1909, entitled "An act to amend and con- soHdate the acts respecting copyright," that the benefits of said act, excepting the benefits under section 1 (e) thereof, as to whicli special conditions are imposed, shall extend to the work of an author or ])roprietor who is a citizen or subject of a foreign State or nation, only upon certain conditions set forth in section 8 of said act, to wit: (a) WTien an alien author or proprietor shall be dom- iciled within the United States at the time of the first publication of his work; or (b) Wlien the foreign State or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright pro- tection substantially equal to the protection secured to such foreign author under this act or by treaty; or when such foreign State or nation is a party to an international agreement which provides for reciprocity in tlio grant- ing of copyright, by the terms of which agreement 719 720 APPENDIX the United States may, at its pleasure, become a party thereto : And whereas it is also provided by said section that ' ' The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time as the purposes of this act may require": And whereas satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Den- mark, France, Germany, Great Britain and her posses- sions, Italy, Mexico, the Netherlands and possessions, Norv/ay, Portugal, Spain, and Switzerland the law per- mits and since July 1, 1909, has permitted to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries: Now, therefore, I, William Howard Taft, President of the United States of America, do declare and proclaim that one of the alternative conditions specified in sec- tion 8, of the act of March 4, 1909, is now fulfilled, and since July 1, 1909, has continuously been fulfilled, in respect to the citizens or subjects of Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and possessions, Nonvay, Portugal, Spain, and Switzerland, and that the citizens or subjects of the aforementioned countries arc and since July 1, 1909, have been entitled to all of the benefits of the said act other than the benefits under section 1 (c) thereof, as to which the inquiry is still ponding. In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. APPENDIX 721 Done at the city of Washington this ninth day of April, in the year of our Lord one [seal] thousand nine hundred and ten, and of the Independence of tlie United States of America the one hundred and thirty-fourth. Wm. n. Taft. By the President: P. C. Knox, Secretary of State. In "The Statutes at Large of the United States of America, from March, 1909, to March, 1911." Vol. 36, part 2. 8vo. Washington, 1011, pp. 2685-2686. COPYRIGHT CONVENTION United States and Hungary in force october 16, 1912 The President of the United States of America and His Majesty the Emperor of Austria, King of Bohemia, etc., and ApostoHc King of Hungary, desiring to provide, be- tween the United States of America and Hungary, for a reciprocal legal protection in regard to copyright of the citizens and subjects of the two countries, have, to this end, decided to conclude a convention, and have ap- pointed as their plenipotentiaries: The President of the United States of America — Richard C. Kerens, Ambassador Extraordinary and Plenipotentiary of the United States of America to His Imperial and Royal Apostolic Majesty; and His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary — Count Paul Esterhazy, Baron of Galantha, Viscount of Frakno, Privy Councillor and Chamberlain, Chief of Section in the Ministry of the Imperial and Royal House and of Foreign Affairs, and Dr. Gustavus dc Tory, Secretary of State in the Royal Hungarian Ministry of Justice; Who, having communicated to each other their full powers, found to be in good and due form, have agreed as follows : 722 appendix 723 Article 1 Authors who are citizens or subjects of one of the two countries or tiieir assigns shall enjoy in the other country, for their literary, artistic, dramatic, musical, and photo- ^;rai)liic works (whether unpublished or published in one of the two countries) the same rij^hts which the respective laws do now or may hereafter grant to natives. The above provision includes the copyright control of mechanical musical reproductions. Article 2 The enjoyment and the exercise of the rights secured by the present Convention are subject to the performance of the conditions and formalities prescribed by the laws and regulations of the country where protection is claimed under the present Convention; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work. Article 3 The term of copyright protection granted by the pres- ent Convention shall i^e regulated by the law of the coun- try where protection is claimed. Article 4 The present Convention .shall be ratified and the rati- fications shall be exchanged at Washington as soon as possible. .Vrticle 5 The present Convention shall be put in force one month after the exchange of ratifications, and shall remain in 724 APPENDIX force until the termination of a year from the day on which it may have been denounced. In faith whereof the Plenipotentiaries have signed the present Convention in two copies, each in Enghsh and Hungarian languages, and have afhxed thereto their seals. Done at Budapest, the 30th day of January, 1912. (seal) Richard C. Kerens. (seal) Esterhazy Pal. (seal) Tory Gustav. Note. — Ratification was advised by the Senate, July 23, 1912; ratifications were exchanged, September 16, 1912; proclaimed by the President, October 15, 1912. The Convention went into force Octo- ber 16, 1912. In "The Statutes at Large of the United States of America, from March, 1911, to March, 1913." Vol. 37, part 2. 8vo. Washington, 1913, pp. 1631-1633. COPYRIGHT CONVENTION BET\\T^EN THE UNITED STATES AND OTHER AxMERICAN RE- PUBLICS Signed at Buetwa Aires, Aiigust 11, 1910; ratification advised by the Senate, February 1'), 1011: ratified by the President, March 12, Ifill: ratification of the United States deposited with the Government of the Argentine Republic, May 1, 1911; proclaimed Jxdy IS, 1914 By the President of the United States of America a proclamation Wlioroas, a Convention on Litcrar>' and Artistic Copy- right between the United States of America and the Ar- gentine Republic, Brazil, Cliile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay, and Venezuela was concluded and signed by their respective Plenipotentiaries at Buenos Aires on the (>leventh day of August, one thousand nine hundred and ten, tlie original of which Convention, being in the Spanish, English, Portuguese and French lan- guages, is word for word as follows: Fourth International Amkrican Convention literary and artistic copvricht Tlu'ir Excellencies the Presidents of the United States of America, the Argentine RepubUc, Brazil, Chili, Colom- 725 726 APPENDIX bia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay and Venezuela; Being desirous that their respective countries may be represented at the Fourth International American Con- ference, have sent thereto the following Delegates duly authorized to approve the recommendations, resolutions, conventions and treaties which they might deem advan- tageous to the interests of America: [Here follow the names of the respective delegates, Qmitted.] Who, after having presented then* credentials and the same having been found in due and proper form, have agreed upon the following Convention on Literary and Artistic Copyright. Article 1. The signatory States acknowledge and pro- tect the rights of Literary and Artistic Property in con- formity with the stipulations of the present Convention. Article 2. In the expression "Literary and iVrtistic works" are included books, writings, pamphlets of all kinds, whatever may be the subject of which they treat, and whatever the number of theu- pages; dramatic or dramatico-musical works; choreographic and musical compositions, with or without words; drawings, paint- ings, sculpture, engravings; photographic works; astro- nomical or geographical globes; plans, sketches or plastic works relating to geography, geology or topography, architecture or any other science; and, finally, all pro- ductions that can be published by any means of impres- sion or reproduction. Article 3. The acknowledgment of a copyright ob- APPENDIX 727 tained in one State, in conformity with its laws, shall produce its effects of full riglit, in all the other States, without the necessity of complying with any other for- mahtj;, provided always there shall appear in the work a statement that indicates the reservation of the proj)- erty right. Article 4. The copyright of a literary or artistic work, includes for its author or assigns the exclusive power of disposing of the same, of publishing, assigning, translat- ing, or authorizing its translation and reproducing it in any form whether wholly or in part. Article 5. The author of a protected work, except in case of proof to the contrary, shall be considered the person whose name or well known nom de plume is in- dicated therein; consequently suit brought by such author or his representative against counterfeiters or violators, shall be admitted by the Courts of the Signatory States. Article G. The authors or their assigns, citizens or domiciled foreigners, shall enjoy in the signatory- coun- tries the rights that the respective laws accord, without those rights being allowed to exceed the tenu of protec- tion granted in the country of origin. For works comi)rising several volumes that are not published simultaneously, as well as for bulletins, or parts, or periodical publications, the term of the coi\v- right will commence to run, witli respect to each volume, bulletin, part, or periodical publication, from the respec- tive date of its pubUcation. Article 7. The country of origin of a work will be deemed that of its first puI)M('ation in America, and if it shall have appeared simultaneously in several of the 728 APPENDIX signatory countries, that which fixes the shortest period of protection. Article 8. A work which was not originally copyrighted shall not be entitled to copyright in subsequent editions. Article 9. Authorized translations shall be protected in the same manner as original works. Translators of works concerning which no right of guar- anteed property exists, or the guaranteed copyright of which may have been extinguished, may obtain for their translations the rights of property set forth in Article 3rd but they shall not prevent the publication of other translations of the same work. Article 10. Addresses or discourses delivered or read before deliberative assemblies, Courts of Justice, or at public meeting, may be printed in the daily press without the necessity of any authorization, with due regard, how- ever, to the provisions of the domestic legislation of each nation. Article 11. Literary, scientific or artistic writings, whatever may be their subjects, published in newspapers or magazines, in any one of the countries of the Union, shall not be reproduced in the other countries without the consent of the authors. With the exception of the works mentioned, any article in a newspaper may be reprinted by others, if it has not been expressly pro- hibited, but in every case, the source from which it is taken must be cited. News and miscellaneous items published merely for general information, do not enjoy protection under this convention. Article 12. The reproduction of extracts from literary APPENDIX 729 or artistic publications for tlic purpose of instruction (jr chrestomathy, does not confer any right of property, and may, therefore, be freely made in all the signatory countries. Article 13. The indirect appropriation of unauthorized parts of a literary or artistic work, having no original character, shall be deemed an illicit reproduction, in so far as effects civil liability. The reproduction in any form of an entire work, or of the greater part thereof, accompanied by notes or com- mentaries under the pretext of literary criticism or am- plification, or supplement to the original work, shall also be considered illicit. Article 14. Every publication infringing a cop}Tight may be confiscated in the signatory countries in which the original work had the right to be legally protected, without prejudice to the indemnities or penalties which the counterfeiters may have incurred according to the laws of the country in which the fraud may have been committed. Article 15. Each of the Governments of the signatory countries, shall retain the right to permit, inspect, or pro- hibit the circulation, representation or exhibition of works or productions, concerning which the proper authority may have to exercise that right. Article 10. The present Convention shall become op- erative between the Signatory States which ratify it, three months after they shall have communicated their ratification to the Argentine (lovernment, and it shall remain in force among thcMn until a year after the date when it may be denounced. This denunciation shall be 730 APPENDIX addressed to the Argentine Government and shall be with- out force except with respect to the country making it. In witness whereof, the Plenipotentiaries have signed the present treaty and affixed thereto the Seal of the Fourth International American Conference. Made and signed in the City of Buenos Aires on the eleventh day of August in the year one thousand nine hundred and ten, in Spanish, English, Portuguese and French, and deposited in the Ministry of Foreign Affairs of the Argentine Republic, in order that certified copies be made for transmission to each one of the signatory nations through the appropriate diplomatic channels. [Here follow the signatures (omitted) of the delegates of the United States of America and the other nineteen contracting states: Argentine Republic, Brazil, Chili, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicara- gua, Panama, Paraguay, Peru, Salvador, Uruguay, Venezuela.] And whereas, the said Convention has been ratified by the Government of the United States, by and with the advice and consent of the Senate thereof, and by the Governments of the Dominican Republic, Guatemala, Honduras, Panama, Nicaragua, and Ecuador,^ and the ratifications of the said Governments were, by the pro- visions of Article IG of the said Convention, deposited by their respective Plenipotentiaries with the Government of the Argentine Republic; * The Governments of Bolivia, Brazil, Costa Rica, and Salvador have announced tliroup;h fliplomatic channels the adhesion of those coun- tries to this copyright convention. APPENDIX 731 Now, therefore, be it known that I, Woodrow Wilson, President of the United States of America, have caused the said Convention to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington this thirteenth day of July in the year of our Lord one thousand nine [seal] hundred and fourteen, and of the Independence of the United States of America the one hun- dred and thirty-ninth. Woodrow Wilson. . By the President: W. J. Bryan, Secretary of State. In "The Statutes at Large of the United States of America, from March, 1913, to March, 101.')." Vol. 3S, part 2. 8vo. Washington, 1915, pages 1785-1798. (Spanish, Enghsh, Portuguese, and French texts.) GREAT BRITAIN Order in Council under the Copyright Act, 1911 (1 «fe 2 Geo. 5, c. 46), regulating Copyright Relations with the United States of America. At the Court at Buckingham Palace, the 3d day of Feb- ruary, 1915. Present, The King's Most Excellent Majesty, Lord President, Viscount Knollys, Lord Chamberlain, Mr. Secretary Harcourt, Mr. Arthur Henderson, Sir William Macgregor, Lord Justice Bankes. Whereas by a Proclamation of the President of the United States of America, dated the 9th April, 1910, the benefits of the United States Act of 1909, entitled "An Act to Amend and Consolidate the Acts respecting Copy- right," were extended to the subjects of Great Britain and her possessions, but no provision was made therein for the protection of the musical works of British subjects against reproduction by means of mechanical contrivances : And whereas His Majesty is advised that the Govern- ment of the United States of America has undertaken, ui)on the issue of this Order, to grant such protection to the nmsical works of British subjects: And whereas by reason of these premises His Majesty is satisfied that the Government of the United States of America has made, or has undertaken to make, such pro- 732 APPENDIX 733 vision as it is expedient to rctjuire for tiie protection of works entitled to copyright under the provisions of Part I of the Copyri^lit Act, 1911: And whereas by the Copyright Act, I'JII, autliority is conferred upon His Majesty to extend, by Order in Coun- cil, the protection of the said Act to certain classes of foreign works within any part of His Majesty's Dominions, other than self-governing dominions, to which the said Act extends : And whereas it is desirable to provide protection within the said dominions for the unpublished works of citizens of the United States of America: Now, therefore, His Majesty, by and with the advice of His Privy Council, and by virtue of the authority con- ferred upon him by the Copyright Act, 1911, is pleased to order, and it is hereby ordered, as follows: — 1. The Copyright Act, 1911, including the provisions as to existing works, shall, subject to the provisions of the said Act and of this Order, apply — (a) to literary, dramatic, musical and artistic works the authors whereof were at the time of the making of the works Citizens of the United States of America, in like manner as if the authors had been British Sub- jects: (b) in respect of residence in the United States of America, in like manner as if such R\sidence had been residence in the jiarts of His Majesty's dominions to which the said Act extends. Provided that — (i) The tenn of copyright within the i>arts of His Majesty's dominions to which this Order applies shall not 734 APPENDIX exceed that conferred by the law of the United States of America : (ii) the enjoyment of the rights conferred by this Order shall be subject to the accompUshment of the conditions and formalities prescribed by the law of the United States of America : (iii) in the application to existing works of the provi- sions of Section 24 of the Copyright Act, 1911, the com- mencement of this Order shall be substituted for the 26th July, 1910, in subsection 1 (6). 2. This Order shall apply to all His Majesty's Domin- ions, Colonies and Possessions, with the exception of those hereinafter named, that is to say: — The Dominion of Canada. The Commonwealth of Australia. The Dominion of New Zealand. The Union of South Africa. Newfoundland. 3. This Order shall come into operation on the 1st day of January, 1915, which day is in this Order referred to as the commencement of this Order. And the Lords Commissioners of His Majesty's Treas- ury are to give the necessary Orders accordingly. Almeric FitzRoy. COPYRIGHT— GREAT BRITAIN By the President of the United States of America a proclamation Whereas it is provided by the Act of Congress of March 4, 1909, entitled "An Act to Amend and Con- soHdate the Acts Respecting CopjTight," that the provi- sions of said Act, "so far as they secure copyright con- troIHng the parts of instruments ser\ing to reproduce mechanically the musical work, shall include only com- positions published and copyi'ighted after this Act goes into effect, and shall not include the works of a foreign author or C()nij)()scr unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights": And whereas it is further provided that the copjTight secured by the Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only upon certain conditions set forth in sec- tion 8 of said Act, to wit: (a) When an alien author or proprietor shall be domi- ciled within the United States at the time of the first ])ublicati()n of his work; or (6) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either 735 736 APPENDIX by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright pro- tection substantially equal to the protection secured to such foreign author under this Act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto : And whereas it is also provided by said section that ''The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time as the purposes of this Act may require": And whereas satisfactory official assurance has been given that, by virtue of the authority conferred by the British Copyright Act, 1911, a British Order in Council has been issued of even date with this Proclamation directing: — 1. That "the Copyright Act, 1911, including the pro- visions as to existing works, shall, subject to the pro- visions of the said Act and of this Order, apply — "(a) to literary, dramatic, musical and artistic works the authors whereof were at the time of the making of the works citizens of the United States of America, in like manner as if the authors had been British subjects: " (h) in respect of residence in the United States of America, in like manner as if such residence had been residence in the parts of His Majesty's domin- ions to which the said Act extends. APPENDIX 737 "Provided that— "(i) the term of copyright within the parts of His Majesty's dominions to which this Order ai)plios shall not exceed that conferred by the law of the United States of America : " (ii) the enjoyment of the rights conferred by this Order shall be subject to the accomplishment of the conditions and formalities prescribed by the law of the United States of America: "(iii) in the application to existing works of the provisions of Section 24 of the Copyright Act, 1911, the commencement of this Order shall be substituted for the 26th July, 1910, in subsection 1 (6)." 2. That ''this Order shall apply to all His Majesty's dominions, colonies and possessions with the exception of those hereinafter named, that is to say: — The Dominion of Canada, The Conamonwealth of Australia, The Do- minion of New Zealand, The Union of South .\irica, Newfoundland." 3. That "this Order shall come into operation on the first day of January, 1915, which day is in this Order referred to as the commencement of this Order. "And the Lords Commissioners of His Majesty's Treasury arc to give the necessary Orders accordingly." Now, therefore, I, Woodrow Wilson, President of the United States of America, do declare and proclaim that one of the alternative conditions specified in section 8 (6) of the Act of March 4, 1909, now exists and is fulfillerA\s of art aud modeU or designs for works of art. — This tenn includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.) The protection of productions of the industrial arts utilitarian in pur]:)ose and character even if artistically made or ornamented depends ui)on action under the patent law; but registration in the Cop>Tight Office has been made to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufac- ture. Toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or similar articles, are examj)les. The exclusive right to make and sell such articles should not be sought by cop>Tight registration. 13. (It) Reprndurtions of works of ar/.— This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which lias been reproduced. 14. (i) Dratvings or pla.'itic icorks of a scientific or tech- nical character. — This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engiun'riug work, n^lief maps, etc. 15. (j) Photographs.— ')^hi^ term covers all photcv 746 APPENDIX graphic prints, but not half tones or other photo-engrav- ings. 16. (k) Prints and pictorial illustrations. — This term comprises printed pictures, such as Uthographs, photo- engra\dngs, etc. 17. (0 Motion-picture photoplays. 18. (m) Motion pictures other than photoplays. Postal cards can not be copyrighted as such. The pictures thereon may be registered as ''prints or pictorial illustrations" or as ''photographs." Text matter on a postal card may be of such a character that it may be registered as a "book." Trade-marks can not be registered in the Copyright Office. AppUcation should be made to the Commissioner of Patents. Labels and prints for articles of manufacture are re- quired by the Act of June 18, 1874, to be registered for copyright in the Patent Office. The CopjTight Office will register a claim of copyi-ight in a pictorial drawing to protect such drawing; but if it is used for a label or print, the label or print should be registered at the Patent Office. HOW TO SECURE REGISTRATION 19. Copyright registration may be secured for: (1) Unpublished works. (2) Published works. UNPUBLISHED WORKS Unpublished works are sucli as h;i\(' not al the \\mo of registration been printed or r<'i)ro(hic('(l in (•()|)i('s for sale AIM'KNDIX 717 or 1)0011 i)ui)licly distributod. 'I'hoy include only the works (-numerated in Section 1 1 ; Lectures, sermons, addresses, or similar productions for oral delivery; dra- matic nuisical and dramatico-musical compositions; pho- toj;raj)hs; works of art (paintings, drawings and sculi>- tures); plastic works; motion-picture photoplays; and motion ])i('tures other than ])li()to])lays. In order to secure coi)yright in such uni)ublished works, the following steps are necessary: 20. (1) In the case of lectures, sennons, addresses, and dramatic musical and dramatico-musical comi)ositions. doi)()sit one complete copy of the work. This copy (which may be WTitten <>r t y])e\\Titten) should be in c()nv(Miient form, clean and legible, the leaves securely fastened together, and should bear the title of the work corresponding to that given in the application. The entire work in each case should be deposited. It is not sufficient to deposit a mere outline or epitome, or, in the case of a ])lay, a mere scenario, or a scenario with the synopsis of the dialogue. 21. (2) In the case of uni)ublished ])hotographs. de- ])osit one coi)y of the work. (Photo-engravings or jjhoto- gi-avuros are not i)hotograplis within the meaning of this provision.) 22. (3) In the case of works of art, models or designs for W(jrks of art, or drawings or plastic works of a scientific or technical character, ileposit a photograph or other identifying reproduction. (4) In the case of motion-picture photoj)lays, deposit a title and description, with one print taken from each scene or act. 748 APPENDIX (5) In the case of motion pictures other than photo- plays, deposit a title and description, with not less than two prints taken from different sections of the complete motion picture. In each case the deposited article must be accompanied by a claim of copyright, an apphcation for registration, and a money order for the amount of the statutory fee. 23. Any work which has been registered under section 11, if pubhshed, i. e., reproduced in copies for sale or dis- tribution, must be deposited a second tmie (accompanied by an application for registration and the statutory fee) in the same manner as is required in the case of works published in the first place. PUBLISHED WORKS Deposit of Copies 24. Promptly after first publication of the work with the copyright notice inscribed, two complete copies of the best edition of the work then published must be sent to the Copyright Office, with a proper application for regis- tration correctly filled out and a money order for the amount of the legal fee. The statute reciuires that the deposit of the copyright work shall be made "promptly," which has been defined as "without unnecessary delay." It is not essential, however, that the deposit be made on the very day of publication. 25. Published works arc such as are ])riuted or other- wise produced and "placed on sale, sold, or publictly distributed." Works intended for sale or general dis- APPENDIX 749 tribution should first be printed with the statutor>' form of cojnTight notice inscribed on every copy published or ofT(T('d for sale in the United States. The following works cannot be registered until after they have been published: Books, periodicals, maps, prints and pictorial illustrations. NOTICE OF COPYRIGHT 26. The ordinary form of copyright notice for books, periodicals, dramatic and musical comj)ositioiis is "Copy- right, 19 — (the year of publication), by A. B. (the name of the claimant)." The name of the claimant printed in the notice should be the real name of a living person, or his trade name if he always uses one (but not a pseudonym or j)en name), or the name of the firm or corporation claiming to own the copjTight. 27. In the case of maps, j)hotographs, reproductions of works of art, prints or pictorial illustrations, works of art, models or designs for works of art, and plastic works of a scientific or technical character, the notice may consist of the letter C, inclosed witliin a circle, thus (c), accompanied by the initials, monogram, mark, or sjtu- bol of the copyright pr()i)rietor. But in such cases the name itself of the copyright proprietor must appear on some accessible portion of the work, or on the mount of the ])icture or map, or on the margin, back, or permanent base or pedestal of the work. 2S. The prescribed notice must be affixed to each copy of the work j)ublished or olTereil for sale in the United States. But no notice is required in the case of foreign books printed abroad seeking ad interim protection in 750 APPENDIX the United States, as provided in section 21 of the copy- right act. AMERICAN MANUFACTURE OF COPYRIGHT BOOKS 29. The following works must be manufactured in the United States in order to secure copyright : (a) All "books" in the English language and books in any language' by a citizen or domiciled resident of the United States must be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text of such books be produced by lithographic process or photo-engraving process, then by a process wholly performed within the limits of the United States; and the printing of the text and binding of the book must be performed within the Umits of the United States. (6) All illustrations within a book produced by litho- graphic process or photo-engraving process and all sepa- rate lithographs or photo-engravings must be produced by lithographic or ])hoto-engraving process wholly performed within the limits of the United States, except when the subjects represented in such illustrations in a book or such separate lithographs or photo-oiigravings "are lo- cated in a foreign country and illustrate a scientific work or reproduce a work of art." 30. Books by foreign authors in any language other than English are not required to be printed in the United States. In the cusc! of books printed iibroad in (he lOnglish APPENDIX 751 language an ad interim term of copyright of thirty clays from registration made in the Copyright Office within thirty days after pubHcation abroad may be secured; but in order to extend the copyright to the full term of protection, an edition of the work must be published in the United States within the thirty days ad interim term, printed or produced within the limits of the United States as required in section 15 of the copyright act. APPLICATION FOR REGISTRATION 31. The application for copyright registration required to be sent with each work must state the following facts: (1) The name, nationality and exact address of the claimant of co])yright. (2) The name of the country of which the author of the work is a citizen or subject. (3) The title of the work. (4) The name and address of person to whom certifi- cate is to be sent. (5) In the case of works reproduced in copies for sale or publicly distributed, the actual date (year, month, and day) when the work was published. 32. In addition, it is desirable that the application should state for record the name of the author. If, how- ever, the work is i)ublishcd anonymously or under a pseudonym and it is not desired to place on record the real name of the author, this may be omitted. By the nationahty of the author is meant citizenship, not race; a person naturalized in the United States should be de- scribed as a citizen. An author, a citizen of a foreign country having no cop>Tight relations with the United 752 APPENDIX States, may only secure copyright in this country, if at the time of publication of his work he is domiciled in the United States. The fact of such domicile in the United States should be expressly stated in the application, in- cluding a statement of this place of domicile. Care should be taken that the title of the work, the name of the author, and the name of the copyright claimant should be cor- rectly stated in the application, and that they should agree exactly with the same statements made in the work itself. APPLICATION FORMS 33. The Copyright Office has issued the following ap- plication forms, which will be furnished on request, and should be used when applying for copyright registration: Al. New book printed and published for the first time in the United States; aleo United States edition of Eng- lish book. A2. Book reprinted in the United States with new copyright matter. A3. Book by foreign author in foreign language. A4. Ad interim for 30 days for book pubUshed abroad in the English language. A5. Contribution to a newspaper or periodical. Bl. Periodical. For registration of single issue. B2. Periodical. For use with trust fund. C. Lecture, sermon, or address. Dl. Pul)lishod dramatic composition. D2. Dramatic composition not reprochurcd for sale. D3. Published dramatico-musical composition. D4. Unpublishetl dramatico-musical composition. APPENDIX T.').'} E. New musical composition pul}lishcd for tlic lirst time. El. Musical composition republished with now copy- right matter. E2. Musical composition not reproduced for sale. F. Published map. G. Work of art (painting, drawing, or sculpture); or model or design for a work of art. 11. Published drawing or plastic work of a scientific or technical character. 12. Unpublished drawing or plastic work of a scientific or technical character. Jl. Photograph published for sale. J2. Photograph not reproduced for sale. K. Print or pictorial illustration. LI. Motion-picture photoplay reproduced for sale. L2. Motion-picture photoplay not reproduced for sale. Ml. Motion picture, not a photoplay, reproduced for sale. M2. Motion picture, not a photoplay, not reproduced for sale. Rl. Renewal of a copyright for 28 years. R2. Extension of a renewal copyright for 14 years. U. Notice of use of music on mechanical instruments. AFFID.WIT OF MANUFACTURE 34. In the ca.se of books by American authors and all books in the English language the application must be accompanied by an affidavit, showing the following facts: (1) That tlie copies depositeil have been printed from type set within the limits of the United States; or from 754 APPENDIX plates made within the limits of the United States from type set therein; or if the text be produced by litho- graphic process or photo-engraving process, that such process was wholly performed within the limits of the United States, stating, in either case, the place and the establishment where such work was done. (2) That the printing of the text has been performed within the limits of the United States, showing the place and the name of the establishment doing the work. (3) That the binding of such book (if bound) has been performed within the Umits of the United States, showing the place and the name of the estabUshment where the work was done. (4) That the completion of the printing of said book was on a stated day, or that the book was published on a given date. Section 62 of the copyright act defines the date of pub- lication (in the case of a work of which copies are repro- duced for sale or distribution) as "the earUcst date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copy- right or under his authority." 35. The affidavit may be made before any officer authorized to administer oaths within the United States who can affix his offiicial seal to the instrument. The affiant and the officer administering the oath for such affidavit are specially requested to make sure that the instrument is properly executed, so as to avoid the delay of having it returned for amendment. Ex- I)(;ri('n(;e shows tliat. among the conmion errors made by ap[)licants are the following: APPENDIX 755 Failure to write in the "venue" — that is, the name of the county and State — and to make sure that the no- tary's statement agrees. Recilinj!; a corporation or partnership as affiant. Oaths can ho taken only by individuals. Failure to state in what capacity the affiant makes the oath, whether as claimant, agent of the claimant, or printer. Where a corporation or firm is the claimant, the affiant should swear as agent. Failure to state the exact date of publication or com- pletion of printing. The month alone is insufTicient. Failure to sign the affidavit. The signature should correspond exactly with the name of the affiant stated at the beginning. Corporation or firm names must not appear in this place. Failure to obtain signature of the notary after swear- ing to the contents. Failure to obtain the seal of the notary. Swearing before an officer not authorized to act in the place stated in the venue, or an officer who has no official seal. Variance between names and dates as stated in the affidavit and the api)licati()n. The affidavit must never be made before publication has taken j)laco. 3(). The affidavit may be made by: (1) The person claiming the copyright; or (2) his duly authorized agent or representative residing in the United States; or (3) the printer who has printed the book. The person making the afiidavit shoukl state in whicli of the above-mentioned capacities he does so. 756 APPENDIX 37. In the case of a foreign author applying for a book in a language other than English, no affidavit is required, as such books are not subject to the manufacturing clause. In the case of a foreign author applying for a book in the English language, the same affidavit must be made as in that of an American author, except where a book is deposited for ad interim protection under section 21. In such cases the affidavit must be filed when the ad in- terim copyright is sought to be extended to the full term by the publication of an edition printed in the United States. The affidavit is only required for BOOKS. PERIODICALS (form b) 38. Application should be made in the same manner as for books, depositing two copies, but no affidavit is required. Separate registration is necessary for each number of the periodical published with a notice of copyright, and •can only be made after pul)lication. It is not possible to register the title of the periodical in advance of pub- lication. CONTRIBUTIONS TO PERIODICALS (fORM a5) 39. If special registration is requested for any contri- bution to a periodical, one copy of the number of the periodical in which the contribution appears should be deposited promptly after publication. The entire copy should be sent; sending a mere clip- ping or page confaining the contribulion does not com- ply with llic slalute. APPENDIX 757 Tho (late of publication of a periodical is not necessa- rily the (late stated on the title-page. The application should state the day on which the issue is "first placed on sale, sold, or publicly distributed." which may be ear- lier or later than the date printed on the title-page. .\D INTERIM APPLICATIONS (fORM a4) 40. ^^^lere a book in the English language has been printed abroad, an ad interim coi)yright may be secured by depositing in the Cop>Tight Office one complete copy of the foreign edition, with an application containing a request for the reservation and a money order for SI. Such applications should state: (1) Name and nation- ality of tlie author; (2) Name, nationality, and address of th(^ ('()i\vright claimant; (3) Exact date of original publication abroad. The deposit must be made not later than thirty days after its pubhcation abroad. AMienever, within the thirty days' period (jf ad interim protection, an authorized edi- tion manufactured in the United States has been i)ub- lished and two copies have thereafter been promptly de})osited, the cojn'right claim therein may be registered the same as any other book (Form Al). MAILING APPLICATIONS AND COPIES 41. All dei)osits and other material intended for the Copyright 0(Tic(^ should be addressed to the "Register of Copyrights, Library of Congress, Washington, D. C." Letters dealing with co])yright matters should not be addressed to clerks or individuals in the Co]nTight Office. The copies of works sent to be registered for copy- 758 APPENDIX right may be mailed to the Copyright Office free (under sec. 14 of the copyright law) if directly deUvered for that purpose to the postmaster, who will attach his frank label to the parcel. The Copyright Office can not furnish franking labels. The money order (or other remittance) to pay the statutory registration fee is not entitled to free postal transmission according to the ruling of the Post Office Department. This with the application should therefore be forwarded in an envelope, to which letter postage has been affixed, addressed to the Register of Copyrights. FEES 42. The fee required to be paid for copyright registra- tion is $1, except that in case of photographs it is only 50 cents when no certificate of registration is desired. All remittances to the Copyright Office should be sent by money order or bank draft. Postage stamps should not be sent for fees or postage. Checks can not be ac- cepted unless certified. Coin or currency inclosed in let- ter or packages if sent will be at the remitter's risk. Publishers may for their own convenience deposit in the Copyright Office a sum of money in advance against which each registration will be charged. ASSIGNMENTS OF COPYRIGHT 43. When a copyright has been assigned the instru- ment in writing signed by the proprietor of the copyright may be filed in this office for record within six calendar months after its execution without the limits of the APPENDIX 759 United States or three calendar months within the United States. After having been recorded the original assignment will be returned to the sender with a sealed certificate of record attached. The assignment will be returned by registered mail, if the post-office registration fee (10 cents) is sent for that purpose. 44. The fee for recording and certifying an assignment is SI up to 300 words; S2 from 300 to 1,000 words; and another dollar for each additional thousand words or fraction thereof over 300 words. 45. After the assignment has been duly recorded, the assignee may substitute his name for that of the assignor in the copyright notice on the work assigned. Such sub- stitution or transfer of ownership will be indexed in this office upon request, at a cost of 10 cents for each work assigned. NOTICE OF USER OF MUSICAL COMPOSITIONS 46. \Mienever the owner of the copyright in a musical composition uses such music upon the parts of instru- ments serving to reproduce it mechanically himself or permits anyone else to do so, he nmst send a notice of such use by him or by any other person to the Copyright Office to be recorded.' 47. \Mienever any person in the absence of a license intends to use a coi)yrighted musical composition upon 'Presidential proclamations liavo lioow issued under soction 1 (e), securing "copyrif^ht controlling the parts of instruments scTving to reproduce mechanically the musical work" in hehalf of lielpium, Cuba, Germany, (!reat Britain, Hungary, Italy, Luxemburg, New Zealand and Nor\vay. 760 APPENDIX the parts of instruments serving to reproduce the same mechanically, the act requires that he shall serve notice of such intention upon the copyright proprietor and must also send a duphcate of such notice to the Copyright Office. APPLICATION FOR THE RENEWAL OR EXTENSION OF SUB- SISTING COPYRIGHTS 48. Application for the renewal or extension of a sub- sisting cop>Tight may be filed within one year prior to the expiration of the existing term by: (1) The author of the work if still living; (2) The widow, widower, or children of the author if the author is not living; (3) The author's executor, if such author, widow, wid- ower, or children be not living; (4) If the author, widow, widower, and children are all dead, and the author left no will, then the next of kin. 49. If the work be a composite work upon which copy- right was originally secured by the proprietor thereof, then such proprietor is entitled to the privilege of re- newal and extension. 50. The fee for the recording of the renewal claim is 50 cents. Application for the renewal or extension of copyright can not be recorded in the name of an assignee nor in that of any person not expressly mentioned in section 24 of the act. SEARCHES 51. Upon !ii)i)licafi()n to the Register of Copyrights search of the records, indexes, or deposits will l)e made APPENDIX 701 for such information as tlipy may contain relative to copyright claims. Persons desiring searches to be made should state clearly the nature of the work, its title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the as- signor or assignee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user.' The statutory fee for searches is 50 cents for each full hour of time consumed in making such search. » Note.— The law provides as follows: "That the record books of the copyriglit offico, together with the indexes to such record hooks, and all works deposited and retained in the copyright office, shall be open to pul)lic inspection; and copies may be taken of the copyright entries actually made in .such record books, subject to such safeguards and regulations as shall be prescribed by the register of copyrights and approved by the Librarian of Congress." (Sec. 58, act of Mar. 4, 1909.) BRITISH COPYRIGHT ACT OF 1911 (1 & 2 Geo. 5. Ch. 46) CHAPTER 46 AN ACT to amend and consolidate the Law relating to Copyright. [16th December, 1911.] ^e it enacted by the Kmg's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Part I IMPERIAL COPYRIGHT RIGHTS 1. (1) Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty's dominions to which this Act extends for the term herein- after mentioned in every original hterary, dramatic, musical and artistic work, if — (a) in the case of a published work, the work was first published within such parts of His Majesty's dominion.s as aforesaid; and (b) in the case of an unpublislied work, the author was at the date of the making of the work a British subject or resident within such parts of His Majesty's dominions as aforesaid; 762 APPENDIX 763 })iit in no other works, oxoopt so far as the protection ronferred l)y tliis Act is extended by Orders in ( "ouncil thereunder relating to self-governing dominions to which this Act does not extend and to foreign countries. (2) For the i)urposes of this Act, "copyright" means the sole right to j)roduce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to j)ublish the work or any substantial part thereof; and shall include the sole right, — (a) to produce, reproduce, perform, or i)ul)lish any translation of the work; (6) in the case of a dramatic work, to convert it into a no\'el or other non-dramatic work; (c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dra- matic work, by way of performance in public or otherwise; (d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cine- matograph film, or other contrivance by means of which (he work may be mechanically per- formed or deliveretl, and to authorize any such acts as aforesaid. (3) For the purposes of this Act, publication, in rela- tion to any work, means the issue of coj)ies of the work to the public, and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the ('xhii)ition in public of an artistic work, or the construction of an architectural work of art, 764 APPENDIX but, for the purposes of this provision, the issue of pho- tographs and engravings of works of sculpture and archi- tectural works of art shall not be deemed to be publication of such works. 2. (1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copy- right: Provided that the following acts shall not consti- tute an infringement of copyright : (i) Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary: (ii) Where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model, or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of that work: (iii) The making or publishing of paintings, drawings, engravings, or photographs of a work of sculp- ture or artistic craftsmanship, if permanently situate in a public place or building, or the making or publishing of paintings, drawings, engravings, or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art: (iv) The pul^lication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of schools, and so described in the title and in any advertisements issued by the APPENDIX 765 publisher, of short piissages from published lit- erary works not themselves published for the use of schools in which copyright subsists: Pro- vided that not more than two of sucli passages from works by the same author are pul)lished by the same publisher within five years, and that the source from which such passages are taken is acknowledged : (v) The publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given, and, except whilst the building is being used for public worship, in a position near the lecturer; but nothing in this paragraph shall afTect the provisions in paragraph (i) as to newspaper summaries : (vi) The reading or recitation in public by one person of any reasonable extract from any published work. (2) Copyright in a work shall also be deemed to be infringed by any person who— (a) sells or lets for hire, or by way of trade exposes or offers for sale or hire; or (6) distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright; or (c) by way of trade exhibits in public; or {d) imports for sale or hire into any part of His .Maj- esty's dominions to which this Act extends, 766 APPENDIX any work which to his knowledge infringes copyright or would infringe copyright if it had been made within the part of His Majesty's dominions in or into which the sale or hiring, exposure, offering for sale or hire, distribution, exhibition, or importation took place. (3) CopjT-ight in a work shall also be deemed to be infringed by any person who for his private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he was not aware, and had no reasonable ground for suspecting, that the performance would be an infringement of copyright. 3. The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author and a period of fifty years after his death : Provided that at any time after the expiration of twenty-five years, or in the case of a work in which copy- right subsists at the passing of this Act thirty years, from the death of the author of a published work, copyright in the work shall not be deemed to be infringed by the reproduction of the work for sale if the person reproducing the work proves that he has given the prescribed notice in writing of his intention to reproduce the work, and that he has paid in the prescribed manner to, or for the bencfif- of, the owner of the copyright royalties in respect of all copies of the work sold l^y him calcuhiled at the rate of ten per cent, on the price at which he publishes the work; and, for the purposes of this j:)r()viso, the Hoard of Trade may make regulations pres('ril)ing the mode in which notices are to be given, and the particulars to be APPENDIX 7(37 given in sucli notices, and tlic mode, time, and frequency of the payment of royalties, including (if they think fit) regulations reciuiring payment in advance or otherwise securing the payment of royalties. 4. If at any time after the death of the author of a literary, dramatic, or nmsical work which has been pub- lished or performed in public a complaint is made to the Judicial Conunittee of the Privy Council that the owner of the copyright in the work has refused to republish or to allow the republication of the work or has refused to allow the performance in public of the work, and that by reason of such refusal the work is withheld from the j)ublic, the owner of the copyi'ight may Ije ordered to grant a license to reproduce the work or j)erform the work in public, as the case may be, on such terms and subject to such conditions as the Judicial Committee may think fit. 5. (1) Subject to the j^rovisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that — (a) where, in the case of an engraving, photograi)h, or portrait, the jjlate or other original was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such ])late or other original was ordered shall be the first owner of the copy- right; and (b) where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the 768 APPENDIX course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine, or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, maga- zine, or similar periodical. (2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to Umitations to the United Kingdom or any self-governing dominion or other part of His Majesty's dominions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by license, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent : Provided that, where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him (otherwise than by will) after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the; reversionary interest, in the copyright expectant on the termination of that period shall, on the APPENDIX 769 death of tlic author, notwithstiinding any agreement to the (;ontrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copy- right in a collective work or a license to publish a work or part of a work as part of a collect i\-e work. (3) Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee as respects the right so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly. CIVIL REMEDIES 6. (1) Where copyright in any work has been in- fringed, the owner of the copyright shall, except as other- wise providetl by this Act, be entitled to all such remedies by way of injunction or interdict, damages, accounts, and otherwise, as are or may be conferred by law for the in- fringement of a right. (2) The costs of all parties in any proceedings in re- spect of the infringement of copyright shall be in the absolute discretion of the Court. (3) In any action for infringement of copyright in any work, the work shall be presumed to be a work in which copyright subsists and the {)laintiff shall be presumed to be the owner of the copyright, unless the (l(>fendant puts in issue the existence of the copyright, or, as tlie case may 770 APPENDIX be, the title of the plaintiff, and where any such question is in issue, then — (a) if a name purporting to be that of the author of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the author of the work; (b) if no name is so printed or indicated, or if the name so printed or indicated is not the author's true name or the name by which he is commonly known, and a name purporting to be that of the publisher or proprietor of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the owner of the copyright in the work for the purposes of proceedings in respect of the infringement of copyright therein. 7. All infringing copies of any work in which copyright subsists, or of any substantial part thereof, and all plates used or intended to be used for the production of such in- fringing copies, shall be deemed to be the property of the owner of the copyright, who accordingly may take pro- ceedings for the recovery of the possession thereof or in respect of the conversion thereof. 8. Wlierc proceedings are taken in respect of the in- fringement of the copyright in any work and the defend- ant in his defence alleges that he was not aware of the cxistonro of llio ropyriglit in the work, the plaintiff shall not be cnti(le(l to any remedy other than an injunction or APPENDIX 771 interdict in respect of tlic infringement if the defendant proves that at the date of the infringement he was not aware and luid no reasonable ground for suspecting that copyriglit subsisted in the work. 9. {]) W'liere the (•onstructi(Hi of a building or other structure which infringes or which, if completed, would infringe tlie copyright in some (jther work has been commenced, the owner of the copyright shall not b(^ entitled to obtain an injunction or interdict to restrain the construction of such building or structure or to order its demolition. (2) Such of the other provisions of this Act as provide that an infringing copy of a work shall be deemed to be the property of the owner of the copyright, or as impose summary penalties, shall not apply in any case to which this section applies. H). An action in respect of infringement of copyright shall not be commenced after the expiration of three years next after the infringement. SUMMARY KE.MEDIES 11. (1) If any person knowingly— (a) makes for sale or hire any infringing copy of a work in which copyright subsists; or (6) sell or lets for hire, or by way of trade exposes or offers for sale or hire any infringing copy of any such work; or (c) distributes infringing cojiies of any such work either for the purposes of trade or to such an extent as to atlect prejudicially the owner of the copyright; or 772 APPENDIX (d) by way of trade exhibits in public any infringing copy of any such work; or (e) imports for sale or hire into the United Kingdom any infringing copy of any such work: he shall be guilty of an offence under this Act and be liable on summary conviction to a fine not exceeding forty shillings for every copy dealt with in contraven- tion of this section, but not exceeding fifty pounds in respect of the same transaction; or, in the case of a second or subsequent offence, either to such fine or to imprison- ment with or without hard labor for a term not exceeding two months. (2) If any person knowingly makes or has in his posses- sion any plate for the purpose of making infringing copies of any work in which copyright subsists, or knowingly and for his private profit causes any such work to be performed in public without the consent of the owner of the copyright, he shall be guilty of an offence under this Act, and be liable on summary conviction to a fine not exceeding fifty pounds, or, in the case of a second or subsequent offence, either to such fine or to imprison- ment with or without hard labor for a term not exceeding two months. (3) The court before which any such proceedings are taken may,- whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies or plates for the purpose of making infringing copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. APPENDIX 773 (4) Nothing in this section shall, as respects musical works, afTect the provisions of the Musical (Summary Proceedings) Copyright Act, 1902, or the Musical Copy- right Act, lOOC). 12. Any i)crs()n aggrieved l)y a summary c(jn\-iction of an offence under the foregoing provisions of this Act may in England and Ireland appeal to a court of quarter sessions and in Scotland under and in terms of the. Sum- mary Jurisdiction (Scotland) Acts. 1.3. The provisions of this Act with respect to summary remedies shall extend only to the United Kingdom. IMPOKTATIOX OF COPIES 14. (1) Copies made out of the United Kingdom of any work in which copyright subsists which if made in the United Kingdom would infringe copyright, and as to which the owner of the coj)yright gives notice in writing by himself or his agent to the Commissioners of Customs and Excise, that he is desirous that such copies should not be imported into the United Kingdom, shall not be so imported, and shall, subject to the provisions of this section, be deemed to be included in the table of prohil^i- tions and restrictions contained in section forty-two of the Customs Consolidation Act, 187G, and that section shall apply accordingly. (2) Before detaining any such copies or taking any further proceedings with a \ie\v to the forfeiture thereof under the law relating to the Customs, the Commissioners of Customs and I'lxcise may retiuire the regulations under this section, whether as to information, conditions, or 774 APPENDIX other matters, to be complied with, and may satisfy themselves in accordance with those regulations that the copies are such as are prohibited by this section to be imported. (3) The Commissioners of Customs and Excise may make regulations, either general or special, respecting the detention and forfeiture of copies the importation of which is prohibited by this section, and the conditions, if any, to be fulfilled before such detention and forfeiture, and may, by such regulations, determine the information, notices, and security to be given, and the evidence requisite for any of the purposes of this section, and the mode of verification of such evidence. (4) The regulations may apply to copies of all works the importation of copies of which is prohibited by this section, or different regulations may be made respecting different classes of such works. (5) The regulations may provide for the informant reimbursing the Commissioners of Customs and Excise all expenses and damages incurred in respect of any deten- tion made on his information, and of any proceedings consequent on such detention ; and may provide for notices under any enactment repealed by this iVct being treated as notices given under this section. (G) The foregoing provisions of this section shall have effect as if they w(>ro part of the Customs Consolidation Act, 187G: Provided that, notwithstaiiding anytliing in that Act, the Isle of Man shall not be treated as part of the United Kingdom for the i)urposos of this section. (7) This section shall, with the necessary modifications, apply to the importation into a British possession to APPENDIX 775 which this Act extends of copies of works made out of that possession. DELIVERY OF BOOKS TO LIBRARIES 15. (1) The pubHsher of every book pubHshed in the United Kingdom shall, within one month after the i)ub- lication, deliver, at his own expense, a copy of the bocjk to the trustees of the British Museum, who shall give a written receipt for it. (2) He shall also, if wTitten demand is made before the expiration of twelve months after publication, dehver within one month after receipt of that wTitten demand or, if the demand was made before publication, within one month after publication, to some dei)6t in London nameil in the demand a copy of the book for, or in accordance with the directions of, the authority having the control of each of the following libraries, namely: the Bodleian Library, Oxford, the L'niversity Library, C'ambritige, the Library of the Faculty of Advocates at Edinburgh, and the Library of Trinity College, Dublin, and subject to the provisions of this section the National Library of Wales. In the case of an encyclopiudia, newspaper, review, magazine, or work published in a series of num- bers or parts, the written demand may incUule all numbers or parts of the work which may be subsequently pub- lished. (3) The copy delivered to the trustees of the British Museum shall be a copy of the whole book with all maps and illustrations l)el()nging thereto, finished and colored in the same manner as the best copies of the book are 776 APPENDIX published, and shall be bound, sewed, or stitched together, and on the best paper on which the book is printed. (4) The copy delivered for the other authorities men- tioned in this section shall be on the paper on which the largest number of copies of the book is printed for sale, and shall be in the like condition as the books prepared for sale. (5) The books of which copies are to be delivered to the National Library of Wales shall not include books of such classes as may be specified in regulations to be made by the Board of Trade. (6) If a publisher fails to comply with this section, he shall be liable on summary conviction to a fine not ex- ceeding five pounds and the value of the book, and the fine shall be paid to the trustees or authority to whom the book ought to have been delivered. (7) For the purposes of this section, the expression "book" includes every part or division of a book, pam- phlet, sheet of letter-press, sheet of music, map, plan, chart or table separately published, but shall not include any second or subsequent edition of a book unless such edition contains additions or alterations either in the letter-press or in the maps, prints, or other engravings belonging thereto. SPECIAL PROVISIONS AS TO CERTAIN WORKS IG. (1) In the case of a work of joint authorship, copyright shall subsist during the life of the author who first dies and for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer, and references in this Act to the APPENDIX 777 period after the expiration of any specified number of years from the death of the author shall be construed as references to the period after the expiration of the like num})er of years from the death of the author who dies first or after the death of the author who dies last, which- ever period may be the shorter, and in the provisions of this Act with respect to the grant of compulsory licenses a reference to the date of the death of the author who dies last shall be substituted for the reference to the date of the death of the author. (2) Where, in the case of a work of joint authorship, some one or more of the joint authors do not satisfy the conditions conferring copyright laid down by this Act, the work shall be treated for the purposes of this Act as if the other author or authors had been the sole author or authors thereof: Provided that the term of the copjTight shall be the same as it would have been if all the authors had satisfied such conditions as aforesaid. (3) For the purposes of this Act, "a work of joint authorshi])" meaiiK a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors. (4) Where a married woman and her husband are joint authors of a work the interest of such married woman therein shall be her separate property. 17. (1) In the case of a literary dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author or, in the ctise of a work of joint authorship, at or immediately before the date of the 778 APPENDIX death of the author who dies last, but which has not been pubUshed, nor, in the case of a dramatic or musical work, been performed in public, nor, in the case of a lecture, been delivered in public, before that date, copjnright shall subsist till publication, or performance or dehvery in public, whichever may first happen, and for a term of fifty years thereafter, and the pro\dso to section three of this Act shall, in the case of such a work, apply as if the author had died at the date of such publication or per- formance or delivery in public as aforesaid. (2) The ownership of an author's manuscript after his death, where such ownership has been acquired under a testamentary disposition made by the author and the manuscript is of a work which has not been published nor performed in public nor delivered in public, shall be prima facie proof of the copyright being with the owner of the manuscript. 18. Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work. 19. (1) Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were music^al works, but the term of copyright shall be fifty years from the making of the APPENDIX 779 original plato from wliich the contrivance was directly or indirect 1}' derivetl, and the person who was the owner of such original plate at the time when such plate was made shall bo deemed to he the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts. (2) It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His ^Majesty's dominions to which this Act extends records, perforated rolls, or other contriv- ances by means of which the work may be mechanically performed, if such person proves — (a) that such contrix'ances have previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work; and {h) that he has given the j)rcscribed notice of his inten- tion to make the contrivances, and has paid in the prescribetl manner to, or for the benefit of, the owner of the c()i)yright in the work royalties in respect of all such contrivances soKl by him, calculated at the rate hereinafter mentioned : Provided that — (i) nothing in this provision shall authorize any altera- tions in, or omissions from, the wt)rk reproduced, unless contrivances reproducing the work subject to similar alterations and omissions have been previously made by, or with the consent or acquiescence of, the owner of the copyright, or 780 APPENDIX unless such alterations or omissions are reasonably necessary for the adaptation of the work to the contrivances in question; and (ii) for the purposes of this pro\dsion, a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work, but shall not be deemed to include a con- trivance by means of which sounds may be mechanically reproduced. (3) The rate at which such royalties as aforesaid are to be calculated shall — (a) in the case of contrivances sold within two years after the commencement of this Act by the person making the same, be two and one-half per cent. ; and (6) in the case of contrivances sold as aforesaid after the expu-ation of that period, five per cent. on the ordinary retail selling price of the contrivance calculated in the prescribed manner, so however that the royalty payable in respect of a contrivance shall, in no case, be less than a half-penny for each separate musical work in which copyright subsists reproduced thereon, and, where the royalty calculated as aforesaid includes a fraction of a farthing, such fraction shall be reckoned as a farthing: Provided that, if, at any time after the expiration of seven years from the commencement of this Act, it appears to the lioard of Trade that such rate as aforesaid is no longer o(iuit:il)le, the Hoard of Trade may, after holding a public in(iuiry, make an order either decreasing APPENDIX 781 or increasing that rate to such extent as under the cir- cumstances may seem just, but any order so made shall be provisional only and shall not have any effect unless and until confu'med by Parliament; but, where an order revising the rate has been so made and confirmed, no further revision shall be made before the expiration of fourteen years from the date of the last revision. (4) If any such contrivance is made reproducing two or more different works in which cop>Tight subsists and the owners of the copyright therein are different persons, the sums payable by way of royalties under this section shall be apportioned amongst the several owners of the copyright in such proportions as, failing agreement, may be determined by arbitration. (5) When any such contrivances by means of which a musical work may be mechanically performed have been made, then, for the purposes of this section, the owner of the copyright in the work shall, in relation to any person who makes the prescribed inquiries, be deemed to have given his consent to the making of such contrivances if he fails to reply to such inquiries within the prescribed time. (G) For the purposes of this section, the Board of Trade may make regulations prescribing anything which under this section is to be prescrilKnl, and prescril)ing the mode in which notices are to be given and the particuhu's to be given in such notices, and the mode, time, and frequency of the payment of royalties, and any such regulations may, if the Hoard think fit, include regulations recjuiring payment in advance or otherwise securing the i)ayment of royalties. 782 APPENDIX (7) In the case of musical works published before the commencement of this Act, the foregoing provisions shall have effect, subject to the following modifications and additions : (a) The conditions as to the previous making by, or with the consent or acquiescence of, the owner of the copyright in the work, and the restrictions as to alterations in or omissions from the work, shall not apply: (6) The rate of two and one-half per cent, shall be substituted for the rate of five per cent, as the rate at which royalties are to be calculated, but no royalties shall be payable in respect of contrivances sold before the first day of July, nineteen hundred and thirteen, if contrivances reproducing the same work had been lawfully made, or placed on sale, within the parts of His Majesty's dominions to which this Act extends before the first day of July, nineteen hundred and ten: (c) Notwithstanding any assignment made before the passing of this Act of the copyright in a musical work, any rights conferred l)y this Act in re- spect of the making, or authorizing the mak- ing, of contrivances by means of which the work may })e mechanically performed shall l)c- long to the author or his legal personal repre- sentatives and not to the assignee, and the roy- alties aforesaid shall be paya})le to, and for the benefit of, the author of the work or his legal personal representatives: APPENDIX 783 (d) The saving contained in this Act of the rights and interests arising from, or in connexion with, action taken l)ef<)re the coniniencenicnt of this Act shall not be construed as authorizing any person who has made contrivances by means of which tlie work may be mechanically per- formed to sell any such contrivances, whether made before or after the j^assing of this Act, except on the terms and subject to the condi- tions laid down in this section: (c) TMiere the work is a work on which cojjvright is conferred by an Order in Council relating to a foreign country, the copyright so conferred shall not, except to such extent as may be provided by the Order, include any rights with respect to the makhig of records, perforated rolls, or other contrivances by means of which the work may be mechanically performed. (8) Notwithstanding anything in this Act, where a record, perforated roll, or other contrivance by means of which sounds may be mechanically rei)roduced has been made before the conmiencement of this Act,' copy- right shall, as from the commencement of this Act, sub- sist therein in like manner and for the like term as if this Act had been in force at the date of the making of the original i)late from which the contrivance was directly or indirectly derived: Provided that — (i) the person who, at the commencement of this Act, is the owner of such original plate shall be the first owner of such copyright ; and 784 APPENDIX (ii) nothing in this provision shall be construed as conferring copyright in any such contrivance if the making thereof would have infringed copy- right in some other contrivance, if this provision had been in force at the time of the making of the first-mentioned contrivance. 20. Notwithstanding anything in this Act, it shall not be an infringement of copyright in an address of a political nature delivered at a public meeting to publish a report thereof in a newspaper. 21. The term for which cop^Tight shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts. 22. (1) This Act shall not apply to designs capable of being registered under the Patents and Designs Act, 1907, except designs which, though capable of being so regis- tered, are not used or intended to be used as models or patterns to be multiplied by any industrial process. (2) General rules under section eighty-six of the Pat- ents and Designs Act, 1907, may be made for determin- ing the conditions under which a design shall be dronied to be used for such purposes as aforesaid. 23. If it appears to His Majesty that a foreign country APPENDIX 785 does not give, or has not undertaken to give, adetjuate protection to the works of British authors, it shall be lawful for His Majesty by Order in Council to direct that such of the provisions of this Act us confer co])>Tight on works first published within the parts of His Majesty's dominions to which this Act extends, shall not apply to works published after the date si)ecified in the Order, the authors whereof are subjects or citizens of such foreign country-, and are not resident in His ^Majesty's dominions, and thereupon those provisions shall not apply to such works. 24. (1) WTiere any person is immediately before the commencement of this Act entitled to any such right in any work as is specified in the first column of the First Schedule to this Act, or to any interest in such a right, he shall, as from that date, be entitled to the substi- tuted right set forth in the second column of that schedule, or to the same interest in such a substituted right, and to no other right or interest, and such sul)stituted right shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made and the work had been one entitled to copy- right thereunder: Provided that — (a) if the author of any work in which any such right as is specified in the first column of the First Schedule to this Act subsists at the commence- ment of this Act has, before that date, assigned the right or granted any interest therein for the whole term of the right, then at the date when, but for the passing of this Act, the right would 786 APPENDIX have expired the substituted right conferred by this section shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the com- mencement of this Act and then subsisting shall determine; but the person who immediately before the date at which the right would so have expired was the owner of the right or interest shall be entitled at his option either — (i) on giving such notice as hereinafter mentioned, to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration; or (ii) without any such assignment or grant, to continue to reproduce or perform the work in like manner as theretofore subject to the payment, if demanded by the author within three years after the date at which the right would have so expired, of such royalties to the author as, failing agreement, may be de- termined by arbitration, or, where the work is incorporated in a collective work and the owner of the right or interest is the propri- etor of that collective work, without any such payment; The notice above referred to must be given not more than one year nor less than six months before the date at which the right would have so expired, and must be sent by registered post APPENDIX 787 to the author, or, if he cannot with reasonable diligence be found, advertised in the London Gazette and in two London newspapers: (6) where any person has, l)efore the twenty-sixth day of July, nineteen hundred and ten, taken any action whereby he has incurred any expenditure or lial)ility in connexion with the reproduction or performance of any work in a manner which at the time was lawful, or for the purpose of or with a view to the reproduction or performance of a work at a time when such reproduction or performance would, but for the passing of this Act, have been lawful, nothing in this section shall diminish or prejudice any rights or interest arising from or in connexion with such action which are subsisting and valuable at the said date, unless the person who l)y virtue of this section becomes entitled to restrain such repro- duction or performance agrees to pay such com- pensation as, failing agreement, may be deter- mined by arbitration. (2) For the jnirposes of this section, the expression "author" includes the legal personal representatives of a deceased author. (3) Subject to the provisions of section nineteen sub- sections (7) and fS) and of section thirty-three of this Act, copyright shall not subsist in any work made before the commencement of this Act, otherwise than under, and in accordance with, the provisions of this sec- tion. 788 APPENDIX APPLICATION TO BRITISH POSSESSIONS 25. (1) This Act, except such of the provisions thereof as are expressly restricted to the United Kingdom, shall extend throughout His Majesty's dominions: Provided that it shall not extend to a self-governing dominion, unless declared by the Legislature of that dominion to be in force therein either without any modifications or addi- tions, or with such modifications and additions relating exclusively to procedure and remedies, or necessary to adapt this Act to the circumstances of the dominion, as may be enacted by such Legislature. (2) If the Secretary of State certifies by notice pub- lished in the London Gazette that any self-governing dominion has passed legislation under which works, the authors whereof were at the date of the making of the works British subjects resident elsewhere than in the dominion or (not being British subjects) were resident in the parts of His Majesty's dominions to which this Act extends, enjoy within the dominion rights substantially identical with those conferred by this Act, then, whilst such legislation continues in force, the dominion shall, for the purposes of the rights confon-od by this Act, be treated as if it were a dominion to which this Act extends; and it shall be lawful for the Secretary of State to give such a certificate as aforesaid, notwithstanding that the remedies for enforcing the rights, or tlie restrictions on the importation of copies of works, manufac^tured in a foreign country, under the law of the dominion, differ from those under t liis Act. 20. (1) The Legislature of any self-governing dominion APPENDIX 789 may, at any time, repeal all or any of the enactments relating to copyright passed by Parliament (including this Act) so far as they are operative within that dominion: Provided that no such repeal shall prejudicially affect any legal rights existing at the time of the repeal, and that, on this Act or any part thereof being so repealed by the Legislature of a self-governing dominion, that domin- ion shall cease to be a dominion to which this act extends. (2) In any self-governing dominion to which this Act does not extend, the enactments repealed by this Act shall, so far as they are operative in that donnnion, continue in force until repealed by the Legislature of that dominion. (3) WTiere his Majesty in Council is satisfied that the law of a self-governing dominion to which this Act does not extend ])rovides adequate i)rotection within the dominion for the works (whether published or unpub- lished) of authors who at the time of the making of the work were British subjects resident elsewhere than in that donnnion, His Majesty in Council may, for the pur- pose of giving reciprocal protection, direct that this Act, excei)t such j^arts (if any) thereof as may be specified in the Order, and subject to any conditions contained therein, shall, within the parts of His Majesty's dominions to which this Act extends, api)ly to works the authors whereof were, at the time of the making of the work, resident within the first-mentioned dominion, and to works first published in that dominion; but, save as provided by such an Order, works the authors whereof were resident in a dominion to which this Act does not extend shall not, whether they are British subjects or 790 * APPENDIX not, be entitled to any protection under this Act except such protection as is by this Act conferred on works first published within the parts of His Majesty's dominions to which this Act extends : Provided that no such Order shall confer any rights within a self-governing dominion, but the Governor in Council of any self-governing dominion to which this Act extends, may, by Order, confer within that dominion the like rights as His Majesty in Council is, under the foregoing provisions of this subsection, authorized to confer within other parts of His Majesty's dominions. For the purposes of this subsection, the expression ''a dominion to which this Act extends" includes a dominion which is for the purposes of this Act to be treated as if it were a dominion to which this Act extends. 27. The Legislature of any British possession to which this Act extends may modify or add to any of the pro- visions of this Act in its application to the possession, but, except so far as such modifications and additions relate to procedure and remedies, they shall apply only to works the authors whereof were, at the time of the making of the work, resident in the possession, and to works first i)ubHshed in the possession. 28. His Majesty may, by Order in Council, extend this Act'to any territories under his protection and to Cyprus, and, on the making of any such Order, this Act shall, subject to the provisions of the Order, have effect as if the territories to which it applies or Cyprus were i)art of His Majesty's dominions to which this Act extends. APPENDIX 791 Part II INTERNATIONAL COPYRIGHT 29. (1) His Majesty may, by Order in Council, direct that this Act (except such parts, if any, thereof as may be specified in the Order) shall apply — (a) to works first published in a foreign country to which the Order relates, in like manner as if they were first published within the parts of His Majesty's dominions to which this Act extends; (b) to Hterary, dramatic, musical, and artistic works, or any class thereof, the authors whereof were at the time of the making of the work subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were British subjects; (c) in respect of residence in a foreign country to which the Order relates, in like manner as if such res- idence were residence in the part of His Majesty's dominions to which this Act extends; and thereupon, subject to the provisions of this Part of this Act and of the Order, this Act shall apply accord- ingly: Provided that — (i) before making an Order in Council under this sec- tion in resi)ect of any foreign country (other than a country with which His Majesty has entered into a convention relating to copyright), Plis Majesty shall be satisfied that that foreign coun- try has made, or has undertaken to make, such 792 APPENDIX provisions, if any, as it appears to His Majesty- expedient to require for the protection of works entitled to copyright under the provisions of Part I. of this Act; (ii) the Order in Council may provide that the term of copyright within such parts of His Majesty's dominions as aforesaid shall not exceed that con- ferred by the law of the country to which the Order relates; (iii) the provisions of this Act as to the delivery of copies of books shall not apply to works first published in such country, except so far as is provided by the Order; (iv) the Order in Council may provide that the enjoy- ment of the rights conferred by this Act shall be subject to the accomplishment of such con- ditions and formalities (if any) as may be pre- scribed by the Order; (v) in applying the provision of this Act as to owner- ship of copyright, the Order in Council may make such modifications as appear necessary having regard to the law of the foreign country; (vi) in applying the provisions of this Act as to existing works, the Order in Council may make such modifications as appear necessary, and may pro- vide that nothing in those provisions as so ap- phed shall be construed as reviving any right of preventing the production or importation of any translation in any case where the right has ceased l)y virtue of section five of the Interna- tional Copyright Act, 188G. APPENDIX 703 (2) An Order in Council under tliis .section may extend to all the several countries named or described therein. 30. (1) An Order in Council under this Part of this Act shall apply to all His Majesty's dominions to which this Act extends excej)t self-governing dominions and any other possession specified in the order witli respect to wiiich it appears to His Majesty expedient that the Order should not apply. (2) The Governor in Council of an}' self-governing dominion to which this Act extends may, as respects that dominion, make the like orders as under this Part of this Act His Majesty in Council is authorized to make with respect to His Majesty's dominions other than self-govern- ing dominions, and the provisions of this Part of this Act .shall, with the necessary modifications, apply accordingly. (3) Where it appears to His ]\lajesty expedient to except from the provisions of any order any part of his dominions not being a self-governing dominion, it shall be lawful forilis Majesty by the same or any other Order in Council to declare that such order and this Part of this Act shall not, and the same .shall not, apply to .such part, except so far as is necessary for preventing any prejudice to any rights acquired previously to the date of such Order. Part HI SUPPLEMENTAL PROVISIONS 3L No person shall be entitled to cop>Tight or any similar right in any litoran*', dramatic, musical, or artistic work, wJH'tluM' ])ul)lislu'd or uni)ul)lished, otherwise than under and in accordance with the provisions of this Act, 794 APPENDIX or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as ab- rogating any right or jurisdiction to restrain a breach of trust or confidence. 32. (1) His Majesty in Council may make Orders for altering, revoking, or varying any Order in Council made under this Act, or under any enactments repealed by this Act, but any Order made under this section shall not affect prejudicially any rights or interests acquired or accrued at the date when the Order comes into operation, and shall provide for the protection of such rights and interests. (2) Every Order in Council made under this Act shall be pubhshed in the London Gazette and shall be laid before both Houses of Parliament as soon as may be after it is made, and shall have effect as if enacted in this Act. 33. Nothing in this act shall deprive any of the univer- sities and colleges mentioned in the Cop>Tight Act, 1775, of any copyright they already possess under that Act, but the remedies and penalties for mfringement of any such copyright shall be imder this Act and not under that Act. 34. There shall continue to be charged on, and paid out of, the Consolidated Fund of the United Kingdom such annual compensation as was immediately before the conimencenu'nt of this Act payaljle in pursuance of any Act as compensation to a library for the loss of the right to receive gratuitous copies of books: Provided that this compensation shall not be j^aid to a library in any year, unless the Treasury are satisfied that APPENDIX 795 the compensation for the previous year has Ixjen applied in the purchase of books for the use of and to be preserved in the Hl^rary. 35. (1) In this Act, unless the context otherwise recjuires — "Literary work" includes maps, charts, plans, tables, and compilations; "Dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting fonn of which is fixed in writing or otherwise, and any cinematogi'aph production where the arrangement or acting form or the combination of incidents represented give the work an original character; ".Vi-tistic work" includes works of painting, drawing, sculpture and artistic craftsmanship, and archi- tectural works of art and engravings and i)hoto- graphs; "Work of sculpture" includes casts and models; "iVrchitectural work of art" means any building or structure having an artistic character or design, in respect of such character or design, or any model for such building or structure, provided that the protection afforded by this Act shall be confined to the artistic character and design, and shall not extend to processes or methods of con- struction; "Engravings" include etchings, hthographs, wood- cuts, jirints, and other similar works, not being ])h()tograi)hs; "Photograph" includes photo-lithograph and any 796 APPENDIX work produced by any process analogous to pho- tography; "Cinematograph" includes any work produced by any process analogous to cinematography; "Collective work" means — (a) an encyclopaedia, dictionary, year book, or similar work; (6) a newspaper, review, magazine, or similar periodical; and (c) any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated; "Infringing," when applied to a copy of a work in which copyright subsists, means any copy, includ- ing any colorable imitation, made, or imported in contravention of the provisions of this Act; "Performance" means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a repre- sentation made by means of any mechanical in- strument; "Delivery," in relation to a lecture, includes delivery by means of any mechanical instrument; "Plate" includes any stereotype or other plate, stone, block, mould, matrix, transfer, or negative used or intended to be used for printing or reproducing copies of any work, and any matrix or other ap- pliance by which records, perforated rolls or other contrivances for the acoustic representation of the work are or are intended to b(^ riuide; "Lecture" includes address, speech, and sermon; APPENDIX 797 "Self-govemiiip; dominion " means the Dominion of Canada, the Commonwealth of Australia, the Dominion of Now Zealand, the Union of South Africa, and Newfoundland. (2) For the purjjoses of this Act (other than those relating to infringements of copyright), a work shall not be deemed to I)e published or performed in ])ublif', and a lecture shall not be deemed to be delivered in public, if ])ublished, performed in public, or dehvered in pubUc, without the consent or acquiescence of the author, his executors, administrators or assigns. (3) For the purposes of this Act, a work shall be deemed to be first published witliin the parts of His Majesty's dominions to which this Act extends, notwithstanding that it has been published simultaneously in some other place, unless the publication in such parts of His Majesty's dominions as aforesaid is colorable only and is not in- tended to satisfy the reasonable requirements of the public, and a work shall be deemed to be published simultaneously in two places if the time between the pubUcation in one such place and the publication in the other place does not exceed fourteen daj's, or such longer period as may, for the time being, be fixed by Order in Council. (4) \Miere, in the case of an unpublished work, the making of a work has extended o\er a considerable period, the conditions of this Act conferring cop>Tight shall be deemed to have been comi^lied with, if the author was, during any substantial ])art of that period, a British subject or a resident within the parts of His Majesty's dominions to which this Act extends. 798 APPENDIX (5) For the purposes of the provisions of this Act as to residence, an author of a work shall be deemed to be a resident in the parts of His Majesty's dominions to which this Act extends if he is domiciled within any such part. 36. Subject to the provisions of this Act, the enact- ments mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that schedule: Provided that this repeal shall not take effect in any part of His Majesty's dominions until this Act comes into operation in that part. 37. (1) This Act may be cited as the Copyright Act, 1911. (2) This Act shall come into operation — (a) in the United Kingdom, on the first day of July nineteen hundred and twelve or such earlier date as may be fixed by Order in Council; (6) in a self-governing dominion to which this x\ct extends, at such date as may be fixed by the Legislature of that dominion; (c) in the Channel Islands, at such date as may be fixed by the States of those islands respectively; (d) in any other British possession to which this Act extends, on the proclamation thereof within the possession by the Governor. APPENDIX 799 SCHEDULES First Scbedole EXIBTINO RIOHTfl I-'xistitiK RiRlit Siiljxtituted RiKht (a) In the case of Works other than Dramaiic and Mxtaicc* Worka Copyright. ICopyright as defined by this Act.* (b) In the case of Musical and Dramatic Works Copyright as defined by this Act.' Botli copyright and performing riglit. Copyright , l)ut not performing right. Performing right but not copy- riglit. Copyriglit a.s defined by this Act, except the sole right to perform the work or any substantial part thereof in public. The sole right to perform the work in public, but none of the other rights comprised in copyright as defined by this Act. For the purpo.so.s of this Schedule tlie following ex- pressions, where used in the first colunm thereof, have the following meanings: "Copyright," in the case of a work which according to the law in force immediately before the commence- ment of this Act has not been publi.shed before that date and statutory copyright wherein depends on publication, includes the right at common law (if any) to restrain publication or other dealing with the work ; "Performing right," in the case of a work which has not i)een j)erformetl in public before the commence- ment of this Act, includes the right at common law ' In the case of an essay, article, or portion forniin^ part of and first pul)lislie(l in a review, niaj;;azine, or other ix-riodieal or work of a like nature, the riglit sliall be sul>ject to any riglit of j)ublislung the essay, article, or portion in a separate form to which the author is entitled at the coininenceinent of this Act, or would, if this Act had not been pas.sed, have become entitled under section eighteen of the Copyright Act, 1S42. 800 APPENDIX (if any) to restrain the performance thereof in public. Second Schedule enactments repealed Session and Chapter 8 Geo 2. c. 13. .. 7 Geo. 3. c. 38. .. 1.5 Geo. 3. c. 53. . 17 Geo. 3. c. 57. . 54 Geo. 3. c. 56. . 3 & 4 Will. 4. c. 15 5 & 6 Will. 4. c. 65 6 «fe 7 Will. 4. c. 59 6& 7 Will. 4. c. 110 5 & 6 Vict. c. 45. . 7 & 8 Viet. c. 12, . 10 & 11 Vict. c. 95 15 & 16 Vict. c. 12 25 & 26 Vict. 0. 68 38 & 39 Vict. c. 12. 39 & 40 Vict. c. 36. 45 & 46 Vict. c. 40. 49 A 50 Vict. c. 33. 51 & 52 Vict. c. 17. 52 & 53 Vict. c. 42 . 6 Edw. 7. c. 36. Short Title The Eneravine Copyright Act. 1734. The Engraving Copyright Act, 1767.. . The Copyright Act. 1775 The Prints Copyright Act, 1777 The Sculpture Copyright Act, 1814 The Dramatic Copyright Act, 1833.. . . The Lectures Copyright Act, 1835. . . . The Prints and Engravings Copyright (Ireland) Act, 1836. The Copyright Act, 1836 The Copyright Act, 1842 The International Copyright Act, 1844 The Colonial Copyright Act, 1847 The International Copyright Act, 1852 The Fine Arts Copyright Act, 1862. The International Copyright Act, 1875 The Customs Consolidation Act, 1876 The Copvright (Musical Compositions) Act, 1882. The International Copyright Act, 188(i The Copyright (Musical Compositions) Act, 1888. , The Revepue Act, 1889 Extent of Repeal The The The The The The The The whole Act. whole Act. whole Act. whole Act. whole Act. whole Act. whole Act. whole Act. The Musical Copyright Act, 1006. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. .Sections one to six. In section eight the words "and pursuant to any Act for the protection of copyright engrav- ings," and "and in any such Act as aforesaid." Sections nine to twelve. The whole Act. Section forty-two, from "liooks wherein" to "such cojiyright will expire." Sections forty- four, forty-five and one hundred and fifty-two. The whole Act. The whole Act. The whole Act. Section one, from "Books first published" to "as provided in that sec- tion." In section three the words "and which has been registered in ac- cordance with the pro- visions of (he Copy- right Arl, 1SI2. or of (lie Inlcrnalional Copy- right Act, IS 11, which rcgisl ration may bo efTectcd notwithstand- ing anything in tho International Copy- right Act. 1880." jFrom the ofTicial edition of the Art printed by Eyre and Spottiswi Bailey, the King's Printer, London, ii, 29 pp. am. 4°.] ode for Rowluud Addenda PREviors roPYRir.iiT acts not repeai.ed IKejJcaled matter indicated by italics and brackets] The Fine Arts Copyright Act, 1862 25 AND 2G \ictoria, Chapter G8 AN ACT for amcndiiiR tlio Law rolutinp; to Copyright in Works of the Fine Arts, and for ropressinp; the C'oniniissioii of Fraud in the Pro- duction and Sale of such Works. 129tli July, 1862.] Whereas by Law, as now established, the Authors of Paintings, Drawings, and Photographs have no Copy- riglit in such tlieir Worlvs, and it is expedient that the Law sliould in tliat respect be amended; Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows: [Sections 1-6 arc repealed by the Copyright Act, 1911.] 7. No Person shall do or cause to be done any or either of the following Acts; that is to say. First, no Person shall fraudulently sign or otherwise affix, or fraudulently cause to be signed or otherwi.se affixed, to or upon any Painting, Drawing, or Photograph, or the Negative thereof, any Name, Initials, or Mono- gram : 801 802 APPENDIX Secondly, no Person shall fraudulently sell, publish, exhibit, or dispose of, or offer for Sale, Exhibition, or Distribution, any Painting, Drawing, or Photograph, or Negative of a Photograph, having thereon the Name, Initials, or Monogram of a Person who did not execute or make such Work: Thirdly, no Person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of, any Copy or colorable Imitation of any Painting, Drawing, or Photograph, or Negative of a Photograph, whether there shall be subsisting Copyright therein or not, as having been made or executed by the Author or Maker of the original Work from which such Copy or Imitation shall have been taken : Fourthly, where the Author or Maker of any Painting, Drawing, or Photograph, or Negative of a Photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the Possession of such Work, if any Alteration shall afterwards be made therein by any other Person, by Addition or otherwise, no Person shall be at liberty during the life of the Author or Maker of such Work, without his Consent, to make or knowingly to sell or publish, or offer for Sale, such Work or any Copies of such Work so altered as aforesaid, or of any Part thereof, as or for the unaltered Work of such Author or Maker: Every Offender under this Section shall, upon Con- viction, forfeit to the Person aggrieved a Sum not exceed- ing Ten Pounds, or not exceeding double the full Price, if any, at which all such ('opies, Engravings, Imitations, or altered Works shall have been sold or ofTered for Sale; and APPENDIX 803 all such Copies, Engravings, Imitations, or altered Works shall be forfeited to the Person, or the Assigns or legal Representatives of the Person, whose Name, Initials, or Monogram shall be so fraudulently signed or affixed thereto, or to whom sueh spurious or altered Work shall he so fraudulently or falsely ascribed as aforesaid: Vvo- x'ldvd always, that the Penalties imposed by this Secticjn shall not be incurred unless the Person whose Name, Initials, or Monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered Work shall be so fraudulently or falsely ascribed as aforesaid, shall have been living at or within Twenty Years next before the Time when the OlTence may have been committed. 8. All pecuniary Penalties which shall be incurred, and all such unlawful Copies, Imitations, and all other Effects and Things as shall have been forfeited by Of- fenders, pursuant to this Act [and pursuant to any Act for the Profcdion of Copijriylit Engnirings], may be re- covered by the Person herein-before [and in any such Act as aforesaid] empowered to recover the same respectively, and herein-after called the Complainant or the Com- plainer, as follows: In England and Ireland, either by Action against the Party offending, or by summary Proceeding before any two Justices having Jurisdiction where the Party (jffcnd- ing resides: In Scotland by Action before the Court of Session in ordinary Form, or by summary Action before the Sheriff of the County where the Offence may be committed or the Offender resides, * * * r^l^^\ .yiy .Judirjnont so to be pronounced by the Sheriff in such suinniary Ajipli- 804 APPENDIX cation shall be final and conclusive, and not subject to Re\dew by [Advocation], Suspension, Reduction, or otherwise. [Sees. 9-12 repealed by the Copyright Act, 1911.] [From "The Statutes of the United Kingdom of Great Britain and Ireland." Vol. 25, 4°. By G: Kettilby Rickards. London, G: E: Eyre and W: Spottiswoode, 1862, pp. 750-752.] The Customs Consolidation Act, 1876 39 and 40 Victoria, Chapter 36 AN ACT to consoUdate the Customs Laws. [24th July, 1876.] ***** AS TO THE IMPORTATION, PROHIBITION, ENTRY, EXAMINA- TION, LANDING, AND WAREHOUSING OF GOODS ***** 42. The goods enumerated and described in the follow- ing table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom, save as thereby excepted, and if any goods so enumerated and described sliall be imported or brought into the United Kingdom contrary to the prohi- bitions or restrictions contained therein, such goods shall be forfeited, and may be destroyed or otherwise disposed of as the Commissioners of Customs may direct. A TABLE OF PROHIBITIONS AND RESTRICTIONS INWARDS Goods prohibited to be imported [Books wherein the copyright shall be first subsisting, first composed, or written or printed, in the United King- APPENDIX 805 dom, and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing, duly declared, that such copyright subsists, such notice also stating when such copyright will expire.] Indecent or obscene i)nnts, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles. [Sees. 44 o.^^d 45 are repealed by the Copyright Act, 191 1.] 151. The Customs Acts shall extend to and be of full force and effect in the several British possessions abroad, except where otherwise expressly j)rovided for by the said Acts, or limited by express reference to the United Kingdom or the Channel Islands, and except also as to any such j)ossession as shall by local Act or ordinance have provided, or may hereafter, with the sanction and approbation of Her Majesty and her successors, make entire provision for the management and regulation of the Customs of any such possession, or make in like man- ner express provisions in lieu or variation of any of the clauses of the said Act for the purposes of such posses- sion. [Sec. 152 repealed by the Copyright Act, 1911.] [From "Till' Law Ri'jxirt-s. Tlio Tuhlic Cleuoral Statutes, 1N7G."' Vol. 11, 8°. London, William Clowes and Sons, 1876, pp. 171, ISl- 182, 210.) 806 APPENDIX The Musical (Summary Proceedings) Copyright Act, 1902 2 Edward VIL, Chapter 15 AN ACT to amend the Law relating to Musical Copyright. [22nd July, 1902.] Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows: 1. A court of summary jurisdiction, upon the applica- tion of the owner of the copyright in any musical work, may act as follows: If satisfied by evidence that there is reasonable ground for believing that pirated copies of such musical work are being hawked, carried about, sold or offered for sale, may, by order, authorize a constable to seize such copies without warrant and to bring them before the court, and the court, on proof that the copies are pirated, may order them to be destroyed, or to be de- li\'ered up to the owner of the copyright if he makes application for that delivery. 2. If any person shall hawk, carry about, sell or offer for sale any pirated copy of any musical work, every such pirated copy may be seized l)y any constable witliout war- rant, on the ro(iuest in writing of the ai)parent owner of the copyright in such work, or of his agent thereto author- ized in writing, and at the risk of such owner. On seizure of any such copies, they shall he conveyed by such constable before a court of summary jurisdiction, APPENDIX 807 and, on proof that they arc infringomonts of rop\TiKht. shall bo forfeited or destroyed, or otherwise dealt with, as the eourt may think fit. 3. ''Musical copyright" means the exclusive right of the owner of such copyright, under the Copyright Act.s in force for the time being, to do, or to authorize another person to do, all or any of the following things in respect of a musical work : — (1) To make copies by writing or otherwise of such musical work. (2) To abridge such musical work. (3) To make any new adaptation, arrangement or setting of such musical work, or of the melody thereof, in any notation or sy.stem. "Musical work" means any combination of melody and harmooy, or either of them, printed, reduced to WTiting, or otherwise graphically produced or repro- duced, "Pirated musical work" means any musical work writ- ten, printed or otherwise reproduced, without the consent lawfully given by the owner of the copyright in such musical work. 4. This Act may be cited as The Musical (Summary Proceedings) Copyright Act, 1902, and shall come into operation on the first day of October one thousand nine hundretl and two, and shall ai)i)ly only to the United Kingdom. [From "Till' Luw Rc|W)rts. The Put.lic Genoml Statutes, I'.tOJ." Vol. 40, 8°. Ix)ndon, Williuin Clowes & Sons, Ltd., IIHW, p. IS.) 808 APPENDIX The Musical Copyright Act, 1906 6 Edward VII., Chapter 36 AN ACT to amend the law relating to Musical Copyright. [4th August, 1906.] Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows : 1. (1) Every person who prints, reproduces, or sells, or exposes, offers, or has in his possession for sale, any pirated copies of any musical work, or has in his possession any plates for the purpose of printing or reproducing pirated copies of any musical work, shall (unless he proves that he acted innocently) be guilty of an offence punish- able on summary conviction, and shall be liable to a fine not exceeding five pounds, and on a second or subsequent conviction to imprisonment with or without hard labor for a term not exceeding two months or to a fine not exceeding ten pounds: Provided that a person convicted of an offence under this Act who has not previously been convicted of such an offence, and who proves that the copies of the musical work in respect of which the offence was committed had printed on the title page thereof a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty under this Act unless it is proved that the copies were to his knowl- edge pirated copies. (2) Any constable may take into custody without war- APPENDIX 80d rant any person who in any street or public place sells or exposes, offers, or has in his possession for sale any pirated copies of any such musical work as may be specified in any general written authority addressed to the chief officer of police, and signed by the apparent owner of th" copjTight in such work or his agent thereto authorized in writing, ro(iucsting the arrest, at tlie risk of such owner, of all persons f(jund committing offences under this section in respect to such work, or who offers for sale any pirated copies of any such specified musical work by personal canvass or by personal]}' delivering advertisements or circulars. (3) A copy of e\'ery written authority addressed to a chief officer of police under this section shall be open to inspection at all reasonable hours by any person without payment of any fee, and any person may take copies of or make extracts from any such authority. (4) Any' person aggricn'od l)y a summary conviction under this section may in r^ngland or Ireland api)eal to a court of quarter sessions, and in Scotland under and in terras of the Summary Prosecutions Appeals (Scotland) Act, 1875. 2. (1) If a court of summary jurisdiction is satisfied by information on oath that there is reasonable ground for suspecting that an offence against this Act is being com- mitted on any premises, the court may gi-ant a search warrant authorizing the constable named therein to enter the premises between the liours of six of the clock in the morning and nine of the clock in the evening, and, if necessary, to us(^ force for making such entry, whether by breaking open doors or otlicrwise, and to seize any copies 810 APPENDIX of any musical work or any plates in respect of which he has reasonable ground for suspecting that an offence against this Act is being committed. (2) All copies of any musical work and plates seized under this section shall be brought before a court of summary jurisdiction, and if proved to be pirated copies or plates intended to be used for the printing or repro- duction of pirated copies shall be forfeited and destroyed or otherwise dealt with as the court think fit. 3. In this Act — The expression "pirated copies" means any copies of any musical work written, printed, or otherwise repro- duced without the consent lawfully given by the owner of the copyright in such musical work: The expression "musical work" means a musical work in which there is a subsisting copyright, [and which has been registered in accordance with the provisions of the Copyright Act, 1842, or of the International Copyright Act, 1844, which registration may be effected notwith- standing anything in the International Copyright Act, 1886]: The expression "plates" includes any stereotype or other plates, stones, matrices, transfers, or negatives used or intended to be used for printing or reproducing copies of any musical work: Provided that the expres- sions "pirated copies" and "plates" shall not, for the purposes of this Act, be deemed to include perforated music rolls used for flaying mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other aj)i)liances by which such rolls or records respectively arc made: APPENDIX 811 Tho oxprossion "chief officer of police" — (a) with respect to the City of London, means the Commissioner of City Police; (6) elsewhere in England has the same meaning as in the Police Act, 1890; (c) in Scotland has the same meaning as in the Police (Scotland) Act. 1S90; {d) in the police district of Dublin metropolis means either of the Commissioners of Police for the said district; (e) elsewhere in Ireland means the District Inspector of the Royal Irish Constabulary: The expression "court of summary jurisdiction" in Scotland means the sheriff or any magistrate of any royal, parliamentary, or police burgh officiating under the pro- visions of any local or general police Act. 4. This Act may be cited as the Musical Copyright Act, lOOC). [From "Thf Law H.-ports. The Piil)lic C.oneral Statutes, 1906." Vol. 44, 8". Loadoa, Rowland Bailey, 11»00, pp. 98-lOO.J CANADIAN COPYRIGHT ACT CHAPTER 70 AN ACT respecting Copyright SHORT TITLE 1. This Act may be cited as the Copyright Act. R. S., c. 62, s. 1. INTERPRETATION 2. In this Act, unless the context otherwise requires, — (a) "Minister" means the Minister of Agriculture; (b) "Department" means the Department of Agricul- ture; (c) "legal representatives " includes heirs, executors, ad- ministrators and assigns, or other legal representa- tives. R. S., c. 62, s. 2. Part I REGISTERS OF COPYRIGHTS 3. The Minister shall cause to be kept, at the Depart- ment, books to be called the Registers of Copyrights, in which proprietors of literary, scientific and artistic works or conii)()sili()ns, may have the same registered in atrcord- ance with the provisions of this Act. R. S., c. 62, s. 3. 812 APPENDIX 813 SUBJECTS AND CONDITIONS OF COPYRinnT 4. Any person doniicilrd in Canada or in any i)art of the British possessions, or any citizen of any country whicli has an international coi)yriglit treaty with the United Kingdom, who is the author of any book, map, chart or musical conii)()sition, or of any original painting, drawing, statue, sculpture or photograph, or who invents, designs, etches, engraves or causes to be engraved, etched or made from his own design, any print, cut, or engra\'ing, and the legal representatives of such person or citizen, shall for the term of twenty-eight years, from the time of record- ing the copyright thereof in the manner hereinafter di- rected, have the sole and exclusive right and liberty of printing, reprinting, publishing, reproducing and vending such literarj^ scientific or artistic work or composition, in whole or in part, and of allowing translations of such work from one language into other languages to be printed or rei)rinted and sold. R. S., c. G2, s. 4. 5. In no case shall the said sole and exclusive right and liberty in Canada continue to exist after it has expired elsewhere. R. S., c. G2, s. 5. 6. The condition for obtaining such copyright shall be that the said literary, .scientific or artistic works .shall be printed and published or reprinted aiul republisluxl in Canada, or in the case of works of art that they .shall Ix? produced or reproduced in Canada, whether they are so published or j)roduced for the-first time, or contemi)oran(^ ously with or .sub.<;e(iuently to publication or ])ro(hu'tion elsewhere. R. S., c. ()2, s. o. 7. No hterarj', scientific or artistic work which is im- 814 APPENDIX moral, licentious, irreligious, or treasonable or seditious, shall be the legitimate subject of such registration or copyright. R. S., c. 62, s. 5. 8. Every work of which the copyright has been granted and is subsisting in the United Kingdom, and copyright of which is not secured or subsisting in Canada, under any Act of the Parliament of Canada, or of the Legislature of the late province of Canada, or of the legislatiu-e of any of the provinces forming part of Canada, shall, when printed and published, or reprinted and repubhshed in Canada, be entitled to copyright under this Act; but nothing in this Act shall, except as hereinafter provided, be held to prohibit the importation from the United Kingdom of copies of any such work lawfully prmted there. 2. If any such copyright work is reprinted subsequently to its pubhcation in the United Kingdom, any person who has, previously to the date of entry of such work upon the Registers of Copyright, imported any foreign reprints, may dispose of such reprints by sale or other- wise; but the burden of proof of establishing the extent and regularity of the transaction shall in such case be upon such person. R. S., c. G2, s. G; G3-64 V., c. 25, s. 1. 9. Any literary work intended to be published in pamph- let or book form, but which is first published in separate articles in a newspaper or periodical, may 1)0 n^gistered under this Act while it is so preliminarily ])ublished, if the title of the manuscript and a short analysis of the work arc deposited at Ihe D(>partment, and if every s(!parate article so i)ublished is iireccnled by the words, Registered in accordance with the Copyright Act: Provided APPENDIX 815 that the work, wlion published in book or pamphlet form, shall be subject, also, to the other requirements of this Act. R. 8., c. 02, s. 7. 10. If a book is published anonymously, il shall be sufTicionl to enter it in the name of the fir.st publisher thereof, either on behalf of the un-named author or on behalf of such first i)ublisher, as the case may be. R. S., c. 62, s. 8. 1 1. No person shall be entitled to the benefit of this Act unless he has deposited at the De])artin(Mit tliree copies of the book, map, chart, musical composition, photograph, print, cut, or engraving, and in the case of paintings, drawings, statuary and sculpture, unless he has furnished a wTitten description of such works of art; and the Min- ister shall cause the copyright of the same to be recorded forthwith in a book to be kept for that purpose, in the manner adopted by him, or i)rcsci'il)ed b}- the rules and forms made, from time to time, as herein provided. R. S., c. 62, s. 9; 58-59 V., c. 37, s. 1. 12. The ^Minister shall cause one of such three copies of such book, map, chart, musical composition, photo- gi-aph, print, cut, or engraving, to be deposited in the Libraiy of the Parliament of Canada and one in the Brit- ish Museum. R. S., c. 62, s. 10; 58-59 V., c. 37, s. 2. 13. It shall not be retjuisite to deliver any i)rinted copy of the second or of any subsequent edition of any book unless the same contains very important alterations or additions. R. S., c. 02, s. 11. 14. No ])erson shall be entitled to the benelit of this Act unless he gives information of the coi)y right being secured, — 816 APPENDIX (a) if the work is a book, by causing to be inserted in the several copies of every edition pubUshed during the term secured, on the title page, or on the page immediately following; or, (b) if the work is a map, chart, musical composition, print, cut, engraving or photograph, by causing to be impressed on the face thereof; or, (c) if the work is a volume of maps, charts, music, en- gravings or photographs, by causing to be impressed upon the title page or frontispiece thereof; the words,— "Copyright, Canada, 190 , by A. B." 7-8 Ed. VIL, c. 17, s. 1. 2. As regards paintmgs, drawings, statuary and sculp- tures, the signature of the artist shall be deemed a suffi- cient notice of such proprietorship. R. S., c. 62, s. 12. 15. The author of any literary, scientific or artistic work or his legal representatives, may, pending the pub- lication or republication thereof in Canada, obtain an interim copyright therefor by depositing at the Depart- ment a copy of the title or a designation of such work, intended for publication or republication in Canada. 2. Such title or designation shall be registered in an interim copyright register at the Department to secure to such author aforesaid or his legal representatives, the exclusive rights recognized by this Act, previous to pub- Ucation or republication in Canada. 3. Such interim registration shall not endure for more than one month from the date of the original ])ul)licalioii els(>wh('re, within which period the work shall be printed or reprinted and pul)lislied in Canada. 4. In every case of interim registration under tliis Act APPENDIX 817 the author or his logal representatives shall cause iu)Uvv. of such registration to be inserted once in the Canada Gazelle. R. S., c. 02, s. 13. IG. The application for the registration of a copyright, or of a teniporar>' or of an interim copyright may be made in the name of the author or of his legal representa- tives, by any person purporting to be agent of such author or legal representatives. 2. Any damage caused by a fraudulent or an erroneou.s assumption of such authority shall be recoverable in any court of competent jurisdiction. R. S., c. 62, s. 14. ASSIGNMENTS AND RENEWALS 17. The right of an author of a hterary, scientific or artistic work to o))tain a copyright, and the copyright when obtained, shall be assignable in law, either, as U) the whole interest or any part thereof, by an instrument in writing, made in duplicate, and which shall be regis- tered at the Department on production of both duplicates and payment of the fee hereinafter mentioned. 2. One of the duplicates shall be retained at the De- partment, and the other shall be returned, with a certif- icate of registration, to the person depositing it. R. S., c. 62, s. 15. 18. Whenever the author of a literarj', scientific or artis- tic work or composition which may be the subject of copy- right has executed the same for another person, or has sold the same to another person for due consideration, such author shall not be entitled to obtain or to retain the proprietorship of such copyright, which is, by the said transaction, virtually transferred to the purchaser, 818 APPENDIX and such purchaser may avail himself of such privilege, unless a reserve of the privilege is specially made by the author or artist in a deed duly executed. R. S., c. 62, s. 16. 19. If, at the expiration of the said term of twenty- eight years, the author, or any of the authors when the work has been originally composed and made by more than one person, is still Hving, or if such author is dead and has left a widow or a child, or children living, the same sole and exclusive right and hberty shall be con- tinued to such author, or to such authors still living, or, if dead, then to such widow and child or children, as the case may be, for the further term of fourteen years; but in such case, within one year after the expiration of such term of twenty-eight years, the title of the work secured shall be a second time registered, and all other regulations herein required to be observed in regard to original copy- rights shall be complied with in respect to such renewed copyright. R. S., c. 62, s. 17. 20. In all cases of renewal of copyright under this Act the author or proprietor shall, within two months from the date of such renewal, cause notice of the registration thereof to be pubhshed once in the Canada Gazette. R. S., c. 62, s. 18. CONFLICTING CLAIMS TO COPYRIGHT 21. In case of any person making application to register as his own, the copyright of a literary, scientific or artistic work already rcgistenid in tlu; name of another jK^rsori, or id rase of simultaneous conflicting applications, or of ail apjjlication mad(> by any person other than the ])erson entered as i)ro])rietor of a registered copyright, to cancel APPENDIX 819 the said copyriglit, tlie person so upi)lying shall be iKJtilicd by the Minister that the (}uestion is one for the decision of a court of competent jurisdiction, and no further pro- ceedings shall he liad or taken by the Minister confcminR the ai)])li('ati(>n until a judgment is produced maintaining, cancelling or otherwise deciding the matter. 2. Such registration, cancellation or adjustment of the said right shall then be made by the ^linister in acc(jrdance with such decision. 3. The Exchequer Court of Canada shall be a com- petent court within the meaning of this Act, and shall have jurisdiction to adjudicate upon any question arising under this section, upon information in the name of the Attorney General of Canada, or at the suit of any person interested. R. S., c. 02, s. 19, 53 V., c. 12, s. 1; 54-55 V., c. 34, s. 1. UNAUTHORIZED PUBLICATION OF MANUSCRIPT 22. Ever}' person who, without the consent of the author or lawful proprietor thereof first obtained, prints or pubUshes or causes to be printed or published, any manuscript not previously printed in Canada or else- where, shall be liable to the author or jiroprietor for all damages occasioned by such publication, and the same shall be recoverable in any court of competent jurisdic- tion. R. S., c. G2, s. 20. LICENSES TO RE-PUBLISH 23. If a work copyrighted in Canada l)ecomes out of print, a complaint may be lodged by any jhtsou with the Minister, who, on the fact being ascertained to his satis- 820 APPENDIX faction, shall notify the owner of the copjrright of the complaint and of the fact; and if, within a reasonable time, no remedy is applied by such owner, the Minister may grant a license to any person to pubUsh a new edition or to import the work, specifying the number of copies and the royalty to be paid on each to the owner of the copyright. R. S., c. 62, s. 21. FEES 24. The following fees shall be paid to the Minister before an application for any of the following purposes is received, that is to say: — Registering a copyright $1.00 Registering an interim copjTight .... 0.50 Registering a temporary copyright. . . 0.50 Registering an assignment 1.00 Certified copy of registration 0.50 Registering any decision of a court of justice, for every folio 0.50 For office copies of documents not above mentioned, the following charges shall be made: — Every single or first folio of one hun- dred words, certified copy $0.50 Every such subsequent folio (fractions of or under one-half not being counted, and of one-half or more being counted) 0.25 2. The said foes shall \)v. in full of all services i^erformed under this Act l)y the Minister or l)y any person emi)loycd by him. APPENDIX 821 3. All fees received under this Act shall be paid over to the Minister of Finance and shall form part of the Consolidated Revenue Fund of Canada. 4. No person shall he exempt from the payment of any ive or charge ])ayal)le in res])ect of any services per- formed under this Act for such person, and no fee paid shall l)e returned to the person who paid it. R. S., c. G2, s. 22. RIGHT TO REPRESENT SCENE OR OBJECT 25. Nothing herein contained shall prejudice the right of any i)ersou to represent any scene or object, n(jt\vith- standing that there may be cop>Tight in sojne other repre- sentation of such scene or object. R. S., c. 62, s. 23. FOREIGN NEWSPAPERS AND MAGAZINES 26. Newspapers and magazines j)ublished in foreign countries, and which contain, together with foreign origi- nal matter, portions of British copyright works re])ublished with the consent of the author or his legal representatives, or under the law of the country where such copjTight exists, may be imported into Canada. R. S., c. 62, s. 24. CLERICAL ERRORS NOT TO INVALIDATE 27. Clerical errors which occur in the framing or copy- ing of any instrument drawn by any officer or emjiloyee ill or of the Department shall not be construed as in- validating such instrument, but when discovered they may be corrected under the authority of the Minister. R. S., c. 62, s. 25. 822 APPENDIX IMPORTATION 28. If a book as to which there is subsisting copyright under this Act has been first lawfully published in any part of His Majesty's dominions, other than Canada, and if it is proved to the satisfaction of the Minister that the owner of the copyright so subsisting and of the copyright acquired by such publication has lawfully granted a hcense to reproduce in Canada, from movable or other types, or from stereotype plates, or from electroplates, or from lithograph stones, or by any process for facsimile repro- duction, an edition or editions of such book designed for sale only in Canada, the IMinister may, notwithstanding anything in this Act, by order under his hand, prohibit the importation into Canada, except with the wTitten consent of the licensee, of any copies of such book printed elsewhere: Provided that two such copies may be specially imported for the bona fide use of any public free library or any university or college library, or for the library of any duly incorporated institution or society for the use of the members of such institution or society. G3-64 V., c. 25, s. 1. 29. The Minister may at any tune in like manner, by order under his hand, suspend or revoke such prohibition upon importation if it is proved to his satisfaction that, — (a) the license to reproduce in Canada has terminated or expired; or, {b) the reasonable demand for the book in Canada is not sufficiently met without in)i)ortati()n; or, (c) the book is not, having regard to the deniand there- for in Canada, being suitaljly printed or published; or, APPENDIX 823 (d) any other state of things exists on account of which it is not in the public interest to further prohibit importation. G3-G4 V., c. 25, s. 2. 30. At any time after the importation of a bfjok lias been so prohibited, any person resident or being in Canada may apply, either directly or through a book-seller or other agent, to the person so licensed to reproduce such book, for a copy of any edition of such i)()()k then on sale and reasonably obtainaljlc in the United Kingdom or any other jDart of His Majesty's dominions, and it shall there- upon be the duty of the person so licensed, as soon as reasonably may be, to import and sell such copy to the person so applying therefor, at the ordinary' selling price of such copy in the United Kingdom, or such other part of His ^lajesty's dominions, with tlie duty and reasonable forw^arding charges added. 2. The failure or neglect, without la^^'ful excuse, of the person so licensed to supply such copy within a reasonable time shall be a reason for which the Minister may, if he sees fit, suspend or revoke the prohibition upon importa- tion. 03-04 v., c. 25, s. 3. 31. The ^Minister shall forthwith inform the Depart- ment of Customs of any order made by him under this Act. 63-64 v., c. 25, s. 4. EVIDENCE 32. All copies or extracts certified from the Depart- ment shall be received in evidence without further j^roof and without jiroduction of the originals. R. S., c. 62, s. 26. 33. All documents, executed and accei)ted by the 824 APPENDIX Minister shall be held vaUd, so far as relates to official proceedings under this Act. R. S., c. 62, s. 27. RULES AND REGULATIONS 34. The Minister may, from time to time, subject to the approval of the Governor in Council, make such rules and regulations, and prescribe such forms as appear to him necessary and expedient for the purposes of this Act; and such regulations and forms, circulated in print for the use of the public, shall be deemed to be correct for the purposes of this Act. R. S., c. 62, s. 27. OFFENCES AND PENALTIES 35. Every person who wilfully makes or causes to be made any false entry in any of the registry books, herem- before mentioned, or who wilfully produces or causes to be tendered in evidence, any paper which falsely pur- ports to be a copy of an entry in any of the said books, is guilty of an indictable offence, and shall be punished accordingly. R. S., c. 62, s. 28. 36. Every person who fraudulently assumes authority to act as agent of the author, or of his legal representative, for the registration of a copyright, or of a temporary or of an interim copyright, is guilty of an indictable of- fence and shall be punished accordingly. R. S., c. 62, s. 29. 37. Every person who, — (a) after the interim registration of the title of any ])ook arcordiiig to this Act, and within the term heroin limited, or after the copyright is secured and (hu'ing the term or terms of its duration, prints, pubUslies, APPENDIX 82r) or reprints or ropublishcs, or imports, or causes to J)e so printed, j)ublished or imported, any copy or any translation of such book without having first ob- tained the right so to do by assignment from the person lawfully entitled to the copyright thereof; or, (6) knowing the same to be so printed or imported, publishes, sells or exposes for sale, or causes to be pui)lished, sold or exposed for sale, any copy of such book without such consent; shall forfeit ever}^ copy of such book to the person then lawfully entitled to the copyright thereof; and shall for- feit and pay for every such copy which is found in his possession, either printed or being printed, published, imjiorted or exposed for sale, contrary' to the j)rovisions of this Act, such sum, not exceeding one dollar, and not less than ten cents, as the court determines, which for- feiture shall l)e enforceable or recoverable in any court of competent jurisdiction. 2. A moiety of such sum shall belong to His Majesty for the public uses of Canada, and the other moiety shall belong to the lawful owner of such cop}Tight. R. S., c. G2, s. 30. 38. Every person who, after the registering of any painting, drawing, statue or other work of art, and within the term or terms limited by this Act, reproduces in any manner, or causes to be re])roduce(,l, made or sold, in whole or in i)art . any copy of any such work of art, williout the consent of the proprietor shall forfeit the i)late or plates on which such reproduction has been made, and every sheet thereof so re])roduced, to the proprietor of the coi)yright theret)f; and shall also forfeit for every 826 APPENDIX sheet of such reproduction published or exposed for sale, contrary to this Act, such sum, not exceeding one dollar and not less than ten cents, as the court determines, which forfeiture shall be enforceable or recoverable in any court of competent jurisdiction. 2. A moiety of such sum shall belong to His Majesty for the pubhc uses of Canada, and the other moiety shall belong to the lawful owner of such copyright. R. S., c. 62, s. 31. 39. Every person who, mthout the consent of the proprietor of the copjTight first obtained, — (a) after the registering of any print, cut or engraving, map, chart, musical composition or photograph, according to the provisions of this Act, and within the term or terms hmited by this Act, engraves, etches or works, sells or copies, or causes to be en- graved, etched or copied, made or sold any such print, cut or engraving, map, chart, musical com- position or photograph, or any part thereof, either as a whole or by var>'ing, adding to or diminishing the main design with intent to evade the law; or, (6) prints or reprints or imports for sale, or causes to be so printed or reprinted or imi)orted for sale, any such map, chart, musical composition, print, cut or engraving, or any part thereof; or, (c) knowing the same to be so reprinted, printed or imported without such consent, ])ul)lishes, sells or exposes for sale, or in any manner disposes of any such map, chart, musical composition, engraving, cut, photograph, or print; shall forfeit the plate or plates on which such map, chart, APPENDIX 827 musical composition, engraving, cut, photograph or i)rint lias \)vvu coijicd, und also every sheet thereof, so copied or i)riiit('d as aforesaid, to the proprietor of the c()p>Tight thereof; and shall also forfeit, for ever>' sheet oi such map, musical com])osition, jirint, cut or engraving found in his possession, ])rinted or jnihlished or ex])osed for sale, contrary' to this Act, such sun), not exceeding one dollar and not less than ten cents, as the court determines, which forfeiture shall be enforceable or recoverable in any court of com])etcnt jurisdiction. 2. A moiety of such sum shall belong to His Majesty for the public uses of Canada, and the other moiety shall belong to the lawful owner of such copyright. R. S., c. G2, s. 32. 40. Every person who has not lawfully accjuired the copyright of a literary, scientific or artistic work, and who inserts in any copy thereof jirinted, jiroduced, re})ro- duced or unportcd, or who imi)resscs on any such copy, that the same has been entered according to this Act, or words purporting to assert the existence of a Canatlian copyright in relation thereto, shall incur a penalty not exceeding tlu*ee hundred dollars. R. S., c. G2, s. 33. 41. Every person who causes any work to be registered in the register of interim copyright and fails to print and l)ul)lish, or reprint anil republish the .same within the time ])rescril)ed, shall incur a penalty not exceeding one hundred dollars. R. S., c. (32, s. 33. 42. Every penalty incurred under either of the last two preceding sections shall be recoverable in any court of competent jurisdiction. 2. A moiety of any such penalty shall belong to His 828 APPENDIX Majesty for the public uses of Canada, and the other moiety shall belong to the person who sues for the same. R. S., c. 62, s. 33. 43. All books imported in contravention of any order, prohibiting such importation, made under the hand of the Minister; by the authority of this Act, may be seized by any officer of Customs, and shall be forfeited to the Crown and destroyed; and any person importmg, or causing or permitting the importation of any book in contravention of such order shall, for each offence, be hable, upon summary conviction, to a penalty not ex- ceeding one hundred dollars. 63-64 V., c. 25, s. 5. 44. No action or prosecution for the recovery of any penalty under this Act, shall be commenced more than two years after the cause of action arises. R. S., c. 62, s. 34. Part II APPLICATION 45. This Part shall come into force on a day to be named by proclamation of the Governor General. 52 V., c. 29, s. 7. 46. Nothing in this Part contained shall be deemed to, — (a) prohibit the importation from the United Kingdom of copies of works of which the copyright is there existing and wliich are lawfully i)rinted and pub- lished there; or, (b) except as in this Part otherwise expressly provided, apply to any work for which, before the ctmiing into force of this Part, copyright had been obtained in APPENDIX 829 the United Kingdom, or in any country which has an international copyright treaty with the United Kingdom, in which Canada is included. 2. The law in force at the time of the coming into effect of this Part shall be deemed to continue in force as respects such works. 52 V., c. 29, s. 6. REPEAL 47. Sections four, five, six and eight of Part I. of this Act are repealed. 52 V., c. 29, ss. 1 and 2. SUBJECTS AND CONDITIONS OF COPYRIGHT 48. Any person domiciled in Canada or in any part of the British possessions, or any citizen of any country which has an international copyright treaty with the United Kingdom, in which Canada is included, who is the author of any book, map, chart or musical or literary composition, or of any original painting, drawing, statue, 8cul])tiu"e or photograph, or who invents, designs, etches, engraves or causes to be engi-aved, etched or made from his own design, any print or engraving, and the legal representatives of such i)ers()n or citizen, shall, for the tenn of twenty-eight years from the time of recording the copyright thereof, have the sole and exclusive right and liberty of printing, reprinting, publishing, reproducing and vending such literary, scientific, musical or artistic work or composition, in whole or in part, and of allowing translations of such hterary work, from one language into other languages, to be printed or reprinted and sold in the manner and on the conditions, and subject to the restrictions hereinafter set forth. 52 V., c. 29, s. 1. 830 APPENDIX 49. The conditions for obtaining such copyright shall be that the said hterary, scientific, musical or artistic work shall, before pubhcation or production elsewhere, or simultaneously with the first pubhcation or production thereof elsewhere, be registered in the office of the Minis- ter, by the author or his legal representative, and further that such work shall be printed and pubhshed or pro- duced in Canada, or reprinted and republished or repro- duced in Canada, within one month after pubhcation or production elsewhere. 52 V., c. 29, s. 1. 50. In no case shall the sole and exclusive right and privilege in Canada continue to exist after it has exphed in the country of origin. 52 V., c. 29, s 1. LICENSES 51. If any person entitled to copyright of a work under this Act, — (a) neglects or fails to take advantage of its provisions; or, (6) having obtained copyright thereunder, at any time after the first publication in Canada of the work for which copjTight has been so obtained, fails to j^rint and publish the work in Canada in sufficient numbers and in such manner as to meet the demand in Canada for such work; the Minister may grant a Ucense or licenses to any person or persons domiciled in Canada to print and i)ul)lish or to reproduce such work in Canada, but no such license shall convey any exclusive right to print and pubhsh or reproduce any work. 2. A license shall be granted to any applicant agreeing APPENDIX 831 to pay the author or his Icsal rcijre.sentati\'es a royalty of ten per centum on the retail price of each copy or re- ])nHluction issued of the work which is the subject of the license, and si\inp; security for such payment to the satisfaction of tlie Minister. o2 V., c. 29, s. 3; 58-59 V., c. 37, s. 3. 52. As to any work for which copyright has been ol)- tained in Canada, the Governor in Council may, upon its being established to his satisfaction that the holder of such copyright is prepared and bona fide intends, during the remaining period of his term of copji'ight, to print and ])uhlish such work in Canada in sufficient numbers and in such manner as to supply the demand for such work in Canada, revoke all licenses for the printuig and pubhcation of such work then in force. 2. Such revocation shall not render unla\\'ful the sub- sequent sale and disposal in Canada of all or any of the copies of such work then j^rinted under the authority of the license so revoked. 58-59 \'., c. 37, s. 5. 53. The royalty in this Part provided for shall be collected by the officers of the Department of Inland Revenue, and paid over to the persons entitled thereto, under regulations appro\'ed by the Clovemor in Council; but the Government shall not l)e liable to account for any such royalty not actually collected. 52 V., c. 29, s. 4. 54. \\lienever, under the foregoing provisions of this Part, a license has been issued i)ermitting the printing and pubUshing or the producing of any work, and evidence has l)een adduced to the satisfaction of the Governor in Council that such work is in course of being jirinted and pubhshed or produced in such manner as to meet the 832 ' APPENDIX demand therefor in Canada, the Governor General may, by proclamation published in the Canada Gazette, pro- hibit the importation, while the author's copyright or that of his assigns is in force, or would have been in force had copyright for the work been obtained in Canada under the foregoing provisions of this Part, of any copies or reproductions of the work to which such license relates. 2. If, at any time thereafter, it is made to appear to the Governor in Council that such work is not, under such license, printed and pubUshed or produced in such manner as to meet such demand, the Governor General may, by proclamation published as aforesaid, revoke such pro- hibition. 52 v., c. 29, s. 5; 58-59 V., c. 37, s. 4. RULES OF THE CANADIAN DEPARTMENT OF AGRICULTURE UNDER THE COPYRIGHT ACT Approved by the Governor in Council, on the 3rd day of December, 1907 RULES I There is no necessity for any personal appearance at the Department of Agriculture, unless specially called for by order of the ^Minister or the Deputy, everj' trans- action being carried on by writing. II In every case the applicant or depositor of any paper is responsible for the merits of his allegations and for the \alidity of the instruments furnished by him or his agent. Ill The correspondence is carried on with the apjilicant or his agent, but with one person only, and will be con- veyed tlirough the Canadian mails free of charge. 833 834 . APPENDIX IV All papers are to be clearly and neatly written on fools- cap paper, and every word of them is to be distinctly legible. All copies of books deposited shall be bound in boards, and all copies of maps and photographs shall be mounted. An application for registration shall be signed by the applicant or by an agent duly authorized. A partner may sign for a firm. A director or secretary or other principal officer of a company may sign for the company. VI All communications to be addressed in the following words: — To the Minister of Agriculture, (Trade-Mark and Copyright Branch), Ottawa. VII As regards proceedings not specially provided for in the following forms, any form being conformable to the letter and spirit of the law will be accepted, and if not so con- formable will be returned for correction. VIII A copy of the Act and the Rules with a particular sec- tion marked, sent to any person making an incjuiry, is intended as a respectful answer by the office. APPENDIX 835 IX Information as to subsisting registrations will not be furnished by the office, the registers and indexes being open for inspection free of charge. CONVENTION CREATING THE INTERNATIONAL COPYRIGHT UNION. REVISED TEXT, 1908 PRELIMINARY REMARKS The Berne Convention creating the International Copyright Union for the protection of works of Hterature and art was signed on September 9, 1886, and went into force on December 5, 1887. The Additional Agreement formulated at the first conference of revision, which met in Paris, was signed on May 4, 1896, and went into effect on December 9, 1897. This modified Articles 2, 3, 5, 7, 12, and 20 of the Convention, and Numbers 1 and 4 of the "Protocole de Cloture." A declaration interpreting cer- tain provisions of the Berne Convention of 1886 and the Additional Agreement of Paris of 1896 was also signed on May 4, 1896, to go into effect on September 9, 1897. A second conference of revision was held in Berlin from October 14 to November 14, 1908, and a new text to take the place of the three documents cited above was form- ulated by the representatives of the following fifteen coun- tries: Belgium, Denmark, France, Germany, Great Britain, Italy, Japan, Lil)eria, Luxembourg, Monaco, Norway, Spain, Sweden, Switzerland, and Tunis. Representatives from the following non-Union coun- tries were also present at the conference: Argentina, Chile, China, CV)l()ni})i;i, ]']cuador, Greece, Guatemala, Mexico, the Netherhinds (Holland), Nicaragua, Peru, Persia, 836 APPENDIX 837 Portugal, Rumania, Russia, Siam, the United States, Uruguay, and X'enczuela. The representative from the United States was present only to "observe and report," with no power to take part in the disrussions, and, beyond making a statement to that efTec't, took no i)art in the proceedings of the Con- 4'erence. Mr. Arthur Orr, Third Secretary of the United States Embassy at Berlin, was also present at the sittings of the Conference but took no part in the proceedings. The Convention was signed on November 13th and the Conference closed on November 14th. To give publicity to the i)roi)osed treaty the official text was, by resolution of the Conference, published in the organ of the Inter- national Copyright Bureau at Berne, " Le Droit d'Auteur," for November 15th. This is the French text of the treaty ])rinted below. The I^nglish translation here printed is made from the text as published in "Le Droit d'Auteur." Where doubt has been felt as to the best English e(iuivalent, the words of the French text have been added, and the full official text in French follows the English text. Article 28 of the Convention provides that it shall be ratified, and the ratifications exchanged at Berlin, not later than the first of July, 1910. Thorvald Solberg, Register of Copyrights. Statement by Thon-ald Solhorp, Refiistor of CopyriRlit-s, Delegate of the United States to the Berlin Conference to Revise the Berne International ("oi)yri«lit ( "onvention, October 1.'), I',t08. In 188.") and 18S0, at tlie conferences convened to draft the con- vention to create the International Union for the protection of Uterary 838 APPENDIX and artistic property, the United States was represented. At that time, however, it was not deemed possible to send a plenipotentiary delegate, nor could such a representative be sent to attend the first Conference of revision, which met in Paris in 1896. When the present Conference was arranged for — early in this year — the German Ambassador at Washington wrote to the Secretary of State of the United States a letter explaining the purpose and scope of this Congress, inviting the Government of the United States to send delegates. The Ambassador's letter explained that, in addition to delegates representing Governments in the Union, there would be present representatives from a considerable number of non-Union nations. It was further stated that the attendance of such delegates from non-Union countries would be greeted with special pleasure. This because of the conviction that whatever might be the final posi- tion taken by the non-Union countries, or their laws, in relation to copyright, the participation in the proceedings of this Conference by such delegates from non-Union countries would at all events contrib- ute to arouse and increase interest in the Berne Union and its bene- ficial work. The German Ambassador's letter further explained that the dele- gates from non-Union countries attending the Conference would have full freedom of action ; that they might confine themselves to following the discussions without taking any stand with regard to them, and that it would be left to the discretion of the non-Union Governments as to whether they would empower their delegates to join the Berne Union. The Government of the United States again finds it imjiracticable to send a delegate authorized to commit the United States to actual adhesion at this time to the Berne Convention. Nevertheless, it has been felt that the representation of the United States, ev(>n within the limitations indicated, might be beneficial: first, to indicate the sym- pathy of our Government with the general purposes of the Interna- tional C^opyright Union: second, to secure such informatio!! regarding tiie i)ro('eedings of the Conference as might jirovc valuable; and third, to place (by means of such representation) at the disposal of tlie Conference, authoritative knowledge as to the facts of copyright legis- lation and procedure within the United States— information which it is APPENDIX 830 hoped may be of use to the members of the Conference in their delibera- tions. The Secretary' of State of the United States ha.s done me the honor to designate me to attend this Conference as a delegate on the part of the United States. It is with the sincere desire that my attendance here maj' contribute in some degree to the attainment of each of these three objects, that I have crossed the ocean to be present. I trust, also, that this loii^ journey taken for the purpose of being present here may be held to testify to my personal most sincere interest in, and admiration for, the objects of the Berne Union — that admirable association of many na- tions to secure adequate protection for literary and artistic produc- tions. It will be for me a great pleasure if mj' attendance here can be of service to the Conference, or to any of its members. Some of the questions to be discussed here are now pending before the Congress of the United States in the Copyright Bill now under discussion. I should wish to avoid, therefore, taking any position in regard to the special matters in question — any jwsition which might tend to commit the United States in advance to any line of policy which might embarra.ss the legislative branch of the Government of the United States in taking such action regarding these matters as it may finally deem advisable. But within that limitation — with the most hearty and cordial expression of my sympathy for the ends and purposes of the Berne Union — I beg to place myself at the serv'ice of the Conference. CONVENTION CREATING AN INTERNATIONAL UNION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS, SIGNED AT BERLIN, NOVEMBER 13, 1908 Article 1 Union to pro- The Contracting countries are constituted *^1 If ^' wkr"* ^^^^ ^ ^^^^ ^^^ ^^^ protection of the rights of authors in their Uterary and artistic works. Article 2 Definition of The expression "hterary and artistic "literary and ^Qj.j,gj» includes all productions in the artistic wor s. j-^gj,^j.y^ scientific or artistic domain, what- ever the mode or form of reproduction, such as: books, pamphlets and other writings; dramatic or dramatico-musical works; chore- ographic works and pantomimes, the stage directions {"mise en scene") of which are fixed in writing or otherwise; musical com- positions with or without words; drawings, paintings; works of architecture and sculp- ture; engravings and lithographs; illustra- tions; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences. Translations, adaptations, arrangements of 840 t APPENDIX 841 miisir and other roprodurtions tranRformed Translations, from a litorary or artistic work, as well as ^7/;;^f3"|''„3 pompilations from different works, are pro- protected, teeted as original works without j)rejudice to the rights of the author of the original work. The contracting countries are pledged to secure protection in the case of the works mentioned above. Works of art applied to industry are Works of art protected so far as the domestic legislation of applied to in- each country allows. Article 3 The present Convention applies to photo- Photographic grai)hic works and to works obtained by any ^^J^^ ° ^ ^^^ process analogous to photography. The con- tracting countries are pledged to guarantee protection to such works. Article 4 Authors within the jurisdiction of one Authors to of the countries of the Union enjoy for their ^°^^y ^^ <^°'^- works, whether uni)ublished or published y^j^j^ ^^ eights for the first time in one of the countries of the granted to na- Union, such rights, in the countries other ^'^^s. than the country of origin of the work, as the respective laws now accord or shall hereafter accord to natives, as well as the rights specially accorded by the present Convention. 842 APPENDIX No formalities The enjoyment and the exercise of such required. rights are not subject to any formaUty; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work. Consequently, apart from the stipulations of the present Con- vention, the extent of the protection, as well as the means of redress guaranteed to the author to safeguard his rights, are regulated exclusively according to the legisla- tion of the country where the protection is claimed. Definition of The following is considered as the country country of on- ^^ origin of the work : for unpublished works, the country to which the author belongs; for published works, the country of first publica- tion, and for works published simultaneously in several countries of the Union, the coun- try among them whose legislation grants the shortest term of protection. For works pub- lished simultaneously in a country outside of the Union and in a country within the Union, it is the latter country which is ex- clusively considered as the country of origin. Published By published works {"oeuvrcs publices") works. must be understood, according to the present Convention, works which have been issued {"(Buvres ediiees"). The representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibi- tion of a work of art and the construction of a APPENDIX 843 work of architecture do not constitute pub- lication. Article 5 Authors within the jurisdiction of one Authors of of the countries of the Union who puhHsh countries of the their works for the first time in another ^^^^ ^.j^j^^^ ^^ country of the Union, have in this latter natives of other country the same rights as national authors, countries. Article 6 Authors not within the jurisdiction of any Authors not one of the countries of the Union, who i)ub- ^ °"6'ng to '. ' countries of the lish for tlie first time their works in one of union also pro- these countries, enjoy in that country the tected if they same rights as national authors, and in the f/^^ p"^"^^ ^ * . - , T-T . , . , Union country. other countries of the Union the rights ac- corded by the present Convention. Article 7 The term of ])rotection granted by the Term of pro- present (\)nventi()n comprises the life of the tection: Life and . 50 years. author and fifty years after his death. In case this term, however, shoukl not be if not adopted uniformly by all the countries of adopted; Laws the Union, the duration of the protection governTerai. shall be regulated I)y the law of the country where protection is claimed, and can not exceed the term granted in the country of origin of the work. The contracting coun- tries will consequently be required to apply 844 APPKNDIX the provision of the preceding paragraph only to the extent to which it agrees with their domestic law. Tennforpho- For photographic works and works ob- tographic, post- tained by a process analogous to photogra- humous, anon- , /. , , i c ymous or pseu- P^^' ^^^ posthumous works, lor anonymous donymous or pseudonymous works, the term of protec- works. i[q^ jg regulated by the law of the country where protection is claimed, but this term may not exceed the term fixed in the country of origin of the work. Article 8 Exclusive Authors of unpublished works within the right of trans- jurisdiction of one of the countries of the lation for entire t, . - i t i i c term. Union, and authors of works published for the first time in one of these countries, enjoy in the other countries of the Union during the whole term of the right in the original work the exclusive right to make or to authorize the translation of their works. Article 9 Serial novels Serial stories {"romans-feuilletons''), nov- protected when ^j^ ^^^^ j^|| ^^^j^^j, ^^^j,^ whether literary, published in ■ ■,. • • , i i • newspapers or scientific or artistic, whatever may be their periodicals. suljject, published in newspapers or period- icals of one of the countries of the Union, may not be reproduced in the other coun- tries without the consent of the authors. APPENDIX 845 With the exception of serial stories and of Reproduction novels C^romans-feuilletons et des nouvelles") °_,. ^^'^^p^p^^ -1 I 111 articles. any newspaper article may be reproduced by another newspaper if reproduction has not been expressly forbidden. The source, how- ever, must be indicated. The confirmation of this obligation shall be determined by the legislation of the country where protec- tion is claimed. The protection of the present Convention News items does not apply to news of the day or to mis- °°^ protected, cellaneous news having the character merely of press information. Article 10 As concerns the right of borrowing law- Extracts from fully from literary or artistic works for use literary or artis- in publications intended for instruction or ^ ^^"^ ^, ?_^ '^ educational pub- having a scientific character, or for chresto- ucations. mathies, the provisions of the legislation of the countries of the Union and of the special treaties existing or to be concluded between them shall govern. Article 11 The stipulations of the present Conven- Representa- tion apply to the public representation of ^*^° °^ dramatic , . , ^ . . , , , or dramatico- draniatic or dramatico-nuisical works and musical to the public performance of musical works, works, whether these works are published or not. 846 APPENDIX Representa- Authors of dramatic or dramatico-musical tion of transia- ^^^^^ ^^^ protected, during the term of tions of drama- , .,.'.., tic works. their copyright in the original work, against the unauthorized pubhc representation of a translation of their works. Notice of res- In order to enjoy the protection of this ervation of per- article, authors, in pubHshing their works, required. ^^® ^^^ obhged to prohibit the pubhc repre- sentation or public performance of them. Article 12 Adaptations, Among the unlawful reproductions to etc., considered ^hich the present Convention applies are ments. "^^^' specially included indirect, unauthorized ap- propriations of a literary or artistic work, such as adaptations, arrangements of music, transformations of a romance or novel or of a poem into a theatrical piece and vice- versa, etc., when they are only the reproduc- tion of such work in the same form or in another form with non-essential changes, additions or abridgments and without pre- senting the character of a new, original work. Article 13 Adaptation of Authors of musical works have the cx- lusicai works elusive right to authorize: (1) the adaptation > mechanical c ,\ i i. • i. x • i. of tlies(; works to instruments serving to istruments. . " reproduce them mechanically; (2) the public APPENDIX 847 performance of the same works by means of these instruments. The limitations and conditions relative ^^ch country to the application of this article shall be *° [f^""'" ^°' , . • 1 1 , 1 . , . , . , 'tself the man- determmed by the domestic legislation of ner in which each country' in its own case; but all limita- Convention tions and conditions of this nature shall ^*^^" ^pp'^' have an effect strictly limited to the country which shall have adopted them. The provisions of paragraph 1 have no Not retroac- retroactive effect, and therefore are not ^^^' applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical in- struments before the going into force of the present Convention. The adaptations made by virtue of para- importation graphs 2 and 3 of this article and imported ^^ mechanical without the authorization of the parties ^fbited^^^ ^^^' interested into a country where they are not lawful, may be seized there. Article 14 Authors of hterary, scientific or artistic Reproduction works have the exclusive right to authorize ^^ ci°emato- the reproduction and the public representa- ^^^ ' tion of their works by means of the cinemat- ograph. ,,. , , Cinemato- Cinematographic productions are protected graphic produc- as hterary or artistic works when by the tions protected. 848 APPENDIX Cinemato- graphs copy- rightable. Also any an- alogous produc- tion. arrangement of the stage effects or by the combination of incidents represented, the author shall have given to the work a per- sonal and original character. Without prejudice to the rights of the author in the original work, the reproduc- tion by the cinematograph of a hterary, scientific or artistic work is protected as an original work. The preceding provisions apply to the reproduction or production obtained by any other process analogous to that of the cinematograph. Author's name indicated on work suffi- cient proof of authorship. Publisher of anonymous or pseudonymous works consid- ered as repre- sentative of au- thor. Article 15 In order that the authors of the works protected by the present Convention may be considered as such, until proof to the contrary, and admitted in consequence be- fore the courts of the various countries of the Unign to proceed against infringers, it is sufficient that the author's name be indi- cated upon the work in the usual manner. For anonymous or pseudonymous works, the publisher whose name is indicated upon the work is entitled to protect the rights of the author. He is without other proofs con- sidered the legal representative of the anony- mous or pseudonymous author. appendix 849 Article 1(3 All infringing works may be seized by tho Seizure of pi- competent authorities of the countries of the '^^^^ copies. Union where the original work has a right to legal protection. Seizure may also be made in these coun- tries of reproductions which come from a country where the cop>Tight in the w(jrk has terminated, or where the work has not been protected. The seizure takes place in conformity with Seizure to be the domestic legislation of each country. "^^^^ according to the laws of Article 17 each country. The provisions of the present Convention Each gov- may not prejudice in any way the right emment to ex- which l)elongs to the Government of eacli of "''"^ '"P^"''" . . . sion as to circu- the countries of the Union to jiermit, to lation, represen- supervise, or to forbid, by means of legisla- tation or exhibi- tion or of domestic poUce, the circulation, the *'°° ^^ works, representation or the exhibition of every work or production in regard to which com- petent authority may have to exercise this right. Article 18 Convention to The present Convention applies to all apply to all works which, at the time it goes into effect, works not in have not fallen into the ])ublic domain of p"^'!' ''^'"^ . - . . , at the time of their country of origin because of the ex- jts going into piration of the term of protection. force. 850 APPENDIX But if a work by reason of the expiration of the term of protection which was pre- viously secured for it has fallen into the public domain of the country where protec- tion is claimed, such work will not be pro- tected anew. Special Con- This principle will be applied in accordance ventions an ^rj^^ ^j^g stipulations to that effect contained domestic leg:s- . • i /^ • • i • • lation may gov- ^^ tile Special Conventions either existing or em. to be concluded between countries of the Union, and in default of such stipulations, its application will be regulated by each coun- try in its own case. Provisions of The preceding provisions apply equally Convention to jj^ ^^iq case of new accessions to the Union and where the term of protection would be extended by the apphcation of Article 7. apply to accessions Article 19 More exten- The provisions of the present Convention sive rig ts may ^^ ^^^ prevent a claim for the apphcation be granted by ^ . . , • , , domestic legis- ^i more tavorable provisions which may be lation. enacted by the legislation of a country of the Union in favor of foreigners in general. Article 20 More exten- The governments of the countries of the sive right may ^^j^^^^ reserve the right to make between be secured by ... special treaties, themselvos special treaties, when these treaties would confer upon authors more APPENDIX 851 extended rights than those accorded by the Union, or when they contain other stipula- tions not conflicting with the present Con- vention. The provisions of existing treaties wiiich answer the aforesaid conditions re- main in force. Article 21 The international office instituted under Bureau of the the name of "Bureau of the International international Union for the Protection of Literary and Artistic Works" ("Bureau de I'Union Inter- nationale pour la protection des oeuvres litteraires et artistiques") is maintained. This Bureau is placed under the high au- Under control thority of the Government of the Swiss ot Switzerland. Confederation, which controls its organiza- tion and supervises its working. The ofl^cial language of the Bureau is the Language of French language. =-«;; •" ^ Article 22 The International Bureau brings together, Duties of in- arranges and publishes information of every temationai Bu- kind relating to the protection of the rights of authors in their literary and artistic works. It studies questions of mutual utility in- teresting to the Union, and edits, with the aid of documents placed at its disposal by the various administrations, a periodical in the French language, treating questions 852 APPENDIX concerning the purpose of the Union. The governments of the countries of the Union reserve the right to authorize the Bureau by common accord to pubhsh an edition in one or more other languages, in case expe- rience demonstrates the need, wm furnish The International Bureau must hold itself information as ^t all times at the disposal of members of the to copyright. u^Q^ to fumish them, in relation to ques- tions concerning the protection of literary and artistic works, the special information of which they have need. Annual report The Director of the International Bureau of Du-ector of j^^kes an annual report on his administra- Intemational , . .... • ^ i j. n iu Bureau. ^^^n, which IS communicated to all the mem- bers of the Union. Article 23 Expenses of The expenses of the Bureau of the Inter- the internation- national Union are shared in common by ai Bureau to be ^j^^ Contracting countries. Until a new shared by con- , . . , ^ i • , .i j trading states, decision, they may not exceed sixty thousand francs per year. This sum may be increased when needful by the simi)le decision of one of the Conferences provided for in Article 24. Method of To determine the part of this sum total of sharing ex- expenses to be paid by each of the countries, penses. ^j^^ contracting countries and those which later adhere to the Union are divided into six classes each contributing in proportion to a certain number of units, to wit: APPENDIX 853 1st class 25 units 2d class 20 units 3d class 15 units 4th chiss 10 units 5tli class 5 units (Jth class 3 units These coefficients are multiplied by the number of countries of each class, and the sum of the products thus obtained furnishes the number of units by which the total ex- pense is to be divided. The quotient gives the amount of the unit of expense. Each countr}' shall declare, at the time of its accession, in which of the above-mentioned classes it desires to be placed. The Swiss Administration prepares the Swiss Ad- budget of the '^Bureau and superintends its ministration to ,., , , , prepare the bud- expenditui'es, makes necessary advances and ^ ^^ ^^^^ inter- draws up the annual account, which shall national Bu- be communicated to all the other adminis- reau, etc. trations. Article 24 The present Convention may be subjected Revisions of to revision with a view to the introduction Convention, of amendments calculated to jierfect the system of the Union. Questions of this nature, as well as those To take place which from other points of view pertain to successively m the countries of the development of the Union, are con- ^^ union. sidered in the Conferences which will take place successively in the countries of the 854 APPENDIX Union between the delegates of the said countries. The administration of the coun- try where a Conference is to be held will, with the co-operation of the International Bureau, prepare the business of the same. The Director of the Bureau will attend the meetings of the Conferences and take part in the discussions without a deliberative voice. Changes re- No change in the present Convention is quire unani- valid for the Union except on condition of mous consen . ^^^ unanimous consent of the countries which compose it. Article 25 Accession of The States outside of the Union which other countries, assure legal protection of the rights which are the object of the present Convention, may accede to it upon their request. To be made This accession shall be made known in known by Swit- ^yriting to the Government of the Swiss zeriand. Confederation and by the latter to all the others. May substi- Such accession shall imply full adhesion tute provisions ^^^ r^\\ ^^j^^ clauses and admission to all the tnZlr '*'''" advantages stipulated in the present Con- vention. It may, however, indicate such provisions of the Convention of Septem- ber 9, 1886, or of the Additional Act of May 4, 1896, as it may be judged necessary to substitute provisionally, at least, for the APPENDIX 855 corresponding provisions of the present Con- vention. Article 26 The contracting countries have the right Accession for to accede at any time to the present Conven- colonies of for- tion for their colonies or foreign possessions. ^^^^ posses- They may, for that purpose, either make a general declaration by which all their colonies or possessions are included in the accession, or name expressly those which are included therein, or confine themselves to indicating those which are excluded from it. This declaration shall be made known in WTiting to the Government of the Swiss Confederation, and by the latter to all the others. Article 27 The present Convention shall replace, in Present Con- the relations between the contracting States, mention to re- the Convention of Berne of September 9, ygmion^^d Ad- 188G, including the Additional .Article and the ditionai Articles. Final Protocol of the same day, as well as the Additional Act and the Interpretative But Heme Declaration of May 4, 1S9G. The conven- Convention re- tional acts above-mentioned shall remain in !°^'"^ '" ^^'^'^ . . • 1 1 ex between coun- force m the relations with the States which do tries not signa- not ratify the present Convention. tory to present The States signatory- to the present Con- Convention, vention may, at the time of the exchange of 856 APPENDIX Signatory ratifications, declare that they intend, upon States may de- ^^^^ ^^ g^^j^ point, still to remain bound by ves bound by the provisions of the Conventions to which former Con- they have previously subscribed. ventions upon certain points. Article 28 Convention to The present Convention shall be ratified, be ratified not ^^^ ^j^g ratifications shall be exchanged at ^191^° "^""^^ Berhn, not later than the first of July, 1910. ' Instrument to Each contracting party shall send, for the be filed with exchange of ratifications, a single instru- Swiss Govern- ^^^^^ ^^^^^ ^^ deposited, with those ment. ' , . , ,, , . n ., of the other countries, in the archives ol the Government of the Swiss Confederation. Each party shall receive in return a copy of the proces-verhal of the exchange of ratifica- tions, signed by the Plenipotentiaries who shall have taken part therein. Article 29 Convention The present Convention shall be put into to take effect execution three months after the exchange *fer^ wchfnge ^^ ^^^ ratifications and shall remain in force of ratifications, for an indefinite time, until the expiration of one year from the day when denunciation of it shall have been made. Withdrawal This denunciation shall be addressed to from the Con- ^^j^^. (jovcrnment of the Swiss Confederation. It shall be effective only as regards the coun- try which shall have made it, the Conven- ventipn. APPENDIX 857 tion romaininp; in forco for tho other coun- tries of the Union. Article 30 The States wliich introduce into their Adoption of legislation the term of protection of fifty [""" °^ ^'^^ ^"^ •^ 1 • 1 "^ dO years to be years * provided for by .Vrticle 7, para- notified, graph 1, of the present Convention, shall make it known to the Government of the Swiss Confederation by a wTitten notifica- tion which shall be communicated at once by that Goxernment to all the other coun- tries of the Union. It shall be the same for such States as shall Notice shall ,. J 1 iU be given of re- renounce any reservations made by them nouncement of in virtue of Articles 25, 20, and 27. any reserva- In testimony of wliich, the respective tions. Plenipotentiaries have signed the present signatures. Convention and have attached thereto their seals. Done at Berlin, the thirteenth of Novem- Date of sign- ber, one thousand nine hundred eight, in a ;"/\,!Jr^"*'" single copy, which shall be deposited in the archives of the Government of the Swiss Confederation, and of which copies, prop- erly certified, shall be sent through diplo- matic channels to the contracting countries. * Article 7 provides for a general term of protection for life and fifty years. CONVENTION DE BERNE REVISEE POUR LA PROTECTION DES CEUVRES LITTERAIRES ET ARTISTIQUES DU 13 NOVEMBRE 1908. Article 1. Les Pays contractants sont constitues a I'etat d'Union pour la protection des droits des auteurs sur leurs oeuvres litteraires et artistiques. Art. 2. L'expression "oeuvres litteraires et artistiques" comprend toute production du domaine litteraire, scienti- fique ou artistique, quel qu'en soit le mode ou la forme de reproduction, telle que: les livres, brochures, et autres ecrits; les oeuvres dramatiques ou dramatico-musicales, les oeuvres choregraphiques et les pantomimes, dont la mise en scene est fixee par ecrit ou autrement ; les compositions musicales avec ou sans paroles; les oeuvres de dessin, de peinture, d'architecture, de sculpture, de gravure et de lithographic; les illustrations, les cartes geographiques; les plans, croquis et ouvrages plastiques, relatifs a la geographic, a la topographic, a I'architecture ou aux sciences. Sont proteges comme des ouvrages originaux, sans prejudice des droits de I'auteur de I'ceuvre originale, les traductions, adaptations, arrangements de musique et autres reproductions transformees d'une ccuvrc litteraire ou artistique, ainsi que les recueils de differentes oeuvres. Les Pays contractants sont tenus d'assurer la protec- tion des oeuvres mentionn6es ci-dessus. Les oeuvres d'art appliqu6 a I'industrie sont prot^g^es 858 APPENDIX 859 autant que permet de le faire la legislation int^rieure de chaque pays. Art. 3. La pr(5sente Convention s'applique aux oeu\Tes photographicjucs et aux oeuvres obtenues par un procedd analogue a la photographie. Les Pays contractants sont tenus d'en assurer la protection. Art. 4. Les auteurs ressortissant a I'un des pays de rUnion jouissent, dans les pays autres que le pays d'origine de I'oeuvre, pour leurs oeuvres, soit non publi6es, soit pub- liees pour la premiere fois dans un pays de I'Union, des droits que les lois respectives accordent actuellement ou accorderont par la suite aux nationaux, ainsi que des droits sp^cialement accord^s par la presente Convention. La jouissance et I'exercice de ces droits ne sont sub- ordonnes a aueune formalite; cette jouissance et cct exer- cice sont independants de I'existence de la protection dans le pays d'origine de I'oemTe. Par suite, en dehors des stipulations de la presente Convention, I'^tendue de la protection ainsi que les moyens de recours garantis a I'auteur pour sauvegarder ses droits se reglent exclusive- ment d'apres la legislation du pays ou la protection est reclamce. Est consid(5r6 comme pays d'origine de I'oeuvre: pour les ceuvres non publiees, celui auquel appartient I'auteur; pour les ceuvres publiees, celui de la preniiere publication, et pour les oeuvres publiees siniultanenient dans plusieurs pays de I'Union, celui d'entre eux dont la legislation accorde la duree de protection la plus courte. Pour les ceuvres publiees siniultanenient dans un pays Stranger a I'Union et dans un iniys de I'Union, c'est ce dernier pays qui est exclusivement consider^ comme pays d'origine. 860 APPENDIX Par cEU\Tes publiees, il faut, dans le sens de la presente Convention, entendre les oeuvres editees. La representa- tion d'une oeuvre dramatique ou di'amatico-musicale, I'execution d'une oeuvre musicale, I'exposition d'une oeuvre d'art et la construction d'une oeuvre d'architecture ne constituent pas une publication. Art. 5. Les ressortissants de I'un des pays de I'llnion, qui publient pour la premiere fois leurs oeu\Tes dans un autre pays de I'Union, ont, dans ce dernier pays, les memes droits que les auteurs nationaux. Art. 6. Les auteurs ne ressortissant pas a Fun des pays de rUnion, qui publient pour la premiere fois leurs oeu\Tes dans I'un de ces pays, jouissent, dans ce pays, des memes droits que les auteurs nationaux, et dans les autres pays de rUnion, des droits accordes par la presente Convention. Art. 7. La duree de la protection accordee par la presente Convention comprend la vie de I'auteur et cin- quante ans apres sa mort. Toutefois, dans le cas ou cette duree ne serait pas uni- formement adoptee par tous les pays de I'Union, la duree sera reglde par la loi du pays oCl la protection sera re- clamee et elle ne pourra exceder la duree fixee dans le I)ays d'origine de I'oeuvre. Les Pays contractants ne seront, en consequence, tenus d'appliquer la disposition de I'alinea precedent que dans la mesure oil elle se concilie avec leur droit interne. Pour les oeuvres photographiques et les oeu\Tes ob- tenues par un proc6d6 analogue a la photographic, pour les oeuvres posthumes, pour les ceuvres anonynies ou pseudonymes, la duree de la protection est roglee par la loi du pays oCi la protection est r6clamde, sans que cette APPENDIX 861 duree jjuisse cxc^der la duroe lixee dans le pays d'(jrigine de ra'u\Te. Art. 8. Les auteurs d'ceuvTes non publioes, ressortissant a I'lm dos pays do I'Union, ot les auteurs d'ceuvres puhliees l)()ur la premiere fois dans un de ees pays jouissent, dans les autres pays de I'Union, i)en(lant toute la duree du droit sur roeuvrc originale, du droit exclusif de faire ou d'autoriscr la traduction de leurs oeuvres. Art. 9. Les romans-feuilletons, les nouvelles et toutes autres oeuvres, soit litteraires, soit scientifiques, soit artistiques, quel qu'en soit I'objet, puhlies dans les jour- naux ou recueils periodiqucs d'un des pays de I'Union, ne peuvent etre reproduits dans les autres pays sans le eon- sentment des auteurs. A I'exclusion des romans-feuilletons et des nouvelles, tout article de journal i)eut etre reproduit par un autre journal, si la reproduction n'en est pas expressement interdite. Toutefois, la source doit etre indicjuee; la sanc- tion de cette obligation est determinee par la legislation du pays oil la protection est reclam^>e. La protection de la presente Convention ne s'api^liciue pas aux nouvelles du jour ou aux faits divers (lui ont le caractere de simj)les informations de jiresse. Art. 10. En ce qui concerne la faculty de faire licitement des emprunts a des oeuvres litteraires ou artistiques pour des publications destinees a I'enseignement ou ayant un caractere scientifi([ue, ou pour des clirestomathies, est rdserv'c I'effet de la legislation des pays de I'Union et des arrangements particuliers existants ou a conclure entre eux. Art. 11. Les stipulations de la pr<5sente Convention 862 APPENDIX s'appliquent a la representation publique des oeu\Tes dramatiques ou dramatico-musicales, et a I'execution publique des oeuvres musicales, que ces oeuvres soient publiees ou non. Les auteurs d'oeuvres dramatiques ou dramatico- musicales sont, pendant la duree de leur droit sur Toeuvre originale, proteges contre la representation publique non autorisee de la traduction de leurs ou\Tages. Pour jouir de la protection du present article, les auteurs, en publiant leurs oeuvres, ne sont pas tenus d'en interdire la representation ou I'execution publique. Art. 12. Sont specialement comprises parmi les re- productions illicites auxquelles s' applique la presente Con- vention, les appropriations indirectes non autorisees d'un ou\Tage litteraire ou artistique, telles que adaptations, arrangements de musique, transformations d'un roman, d'une nouvelle ou d'urie poesie en piece de theatre et reciproquement, etc., lorsqu'elles ne sont que la reproduc- tion de cet ou\Tage, dans la meme forme ou sous une autre forme, avec des changements, additions ou retranche- ments, non essentiels, et sans presenter le caractere d'une nouvelle oeu\Te originale. Art. 13. Les auteur& d'oeuvres musicales ont le droit exclusif d'autoriser: 1° I'adaptation de ces oeuvres a des instruments servant a les reproduire mecaniquement; 2° I'execution publique des memcs oeu\Tes au moyen de ces instruments. Des reserves et conditions relatives a I'application de cet article pourront etre determinec^'S par la legislation in- terieure de chac}ue pays, en ce qui le concerne; mais toutes reserves et conditions de cette nature n'auront APPENDIX 863 qu'un cffct strictemcnt liinitc' uu i)ays (jui les aurait ^'tablies. La disposition do Talinea 1"^ n'ji i)as d'cffot rf^'troactif et, par suite, n'cst j)as ai)plic'able, dans un pays dc I'Union, aux oeuvres qui, dans ce pays, auront 6t6 adapt6es licite- niont aux instruments m^canicjues avant la misc en vigueur de la prescnte Convention. Les adaptations faites en vertu des alin^as 2 et 3 du pr(5sent article et import6es, sans autorisation des parties intrrcssecs, dans un pays ou elles ne seraient pas licites, pouiTont y etre saisies. Art. 14. Les auteurs d'oeuvTes litteraires, scientifiques ou artistiques ont le droit exelusif d'autoriser la reproduc- tion ot la representation publique de lours ogu\tos par la cinoniatographio. Sont protegees comme oeu\Tes litteraires ou artistiques les productions cinoniatographiques lorsque, par les dis- positifs do la mise en scene ou les combinaisons des in- cidents representes, I'autour aura donno a I'oeuvre un caractere personnel et original. Sans pn'judico des droits ilo I'autour tie I'ocuvro origi- nalo, la reproduction par la cinoniatographio d'une a?uvre littoraire, scientifique ou artistique est prot6g6e comme une oeuvre originale. Los dispositions (jui precedent s'appliquont a la re- j)r()duction ou production ol)tonuo par tout autre procode analogue a la cin^matograj^hio. Art. 15. Pour (juo los autours dos ouvrages proteges par la prosonte Convention .soient, jusqu'a prouvo contrairo, consid6r(3s comme tels et admis, en consocjuonco, dovant les tribunaux dos divers pays de I'Union, a oxorcer des 864 APPENDIX poursuites contre les contrefacteurs, il suffit que leur nom soit indique sur I'ouvrage en la maniere usitee. Pour les CEU\Tes anonymes ou pseudonymes, I'editeur dont le nom est indique sur I'ouvrage est fonde a sauve- garder les droits appartenant a I'auteur. II est, sans auteurs preuves, repute ayant cause de I'auteur anonyme ou pseudonyme. Art. 16. Toute oeuvre contrefaite pent etre saisie par les autorites competentes des pays de TUnion ou I'oeuvre originale a droit a la protection legale. Dans ces pays, la saisies pent aussi s'appliquer aux reproductions provenant d'un pays ou I'oeuvre n'est pas protegee ou a cesse de I'etre. La saisie a lieu conformement a la legislation inte- rieure de chaque pays. Art. 17. Les dispositions de la presente Convention ne peuvent porter prejudice, en quoi que ce soit, au droit qui appartient au Gouvernement de chacun des pays de rUnion de pemiettre, de surveiller, d'interdire, par des mesures de legislation ou de police interieure, la circula- tion, la representation, I'exposition de tout ou\Tage ou production a I'egard desquels I'autorite competente aurait a exercer ce droit. Art. 18. La presente Convention s'applique a toutes les oeuvres qui, au moment de son entree en vigueur, ne sont pas encore tombees dans le domaine public de leur pays d'originc par I'expiration de la duree de la protec- tion. Cependant, si unc ceuvre, par I'expiration de la dur6e de protection qui lui ctait ant^rieurement reconnue, est tomb6e dans le domaine public du ])ays ou la protcc- APPENDIX 865 tion est reclam6e, cette ceuvre n'y sera pas protegee a nouveau. I/ajiplication do re principe aura lieu suivant les stipula- tions I'onteiiues dans les conventions sp^ciales existantes ou a eonclure a cet effet entre pays de I'Union. A dc'-faut de seniblables stipulations, les pays respeetifs r6gleront, ehac'un pour ce qui le conceme, les modalitds relatives a cette application. Les dispositions qui pr^^cedent s'appliquent (''galement en cas de nouvelles accessions a I'Union et dans le cas ou la durce de la protection scrait ctcndue par application de I'article 7. .•Vrt. 19. Les dispositions de la pr6sente Convention n'empechcnt pas de revcndiquer Tai^plication de disposi- tions plus larges qui seraicnt edictees par la legislation d'un pays de I'Union en faveur des etrangers en general. Art. 20. Les Gouvemements des pays de TUnion se roserv'ent le droit de prendre entre eux des arrangements particuliers, en tant que ces arrangements confereraient aux auteurs des droits plus dtendus que ceux accord^s par I'Union, ou qu'ils renfermeraient d'autres stipulations non contraires a la presente Convention. Les dispositions des arrangements existants qui repondent aux conditions precit6es restent applicables. ^ViiT. 2L Est maintenu Toffice international institue sous le nom de "Bureau de I'Union intcrnationale poiu- la protection des oeu\Tes litteraires et artisticiues." Ce Bureau est plac6 sous la haute autorit6 du Gouveme- mefit de la Conf('d(''ration Suisse, (jui en regie I'organisa- tion et en surveille le fonctionnement. La langue officielle du Bureau est la langue francaise. 866 APPENDIX Art. 22. Le Bureau international centralise les ren- seignements de toute nature relatifs a la protection des droits des auteurs sur leurs oeuvres litteraires et artistiques. II les coordonne et les publie. II procede aux etudes d'utilite commune interessant I'Union et redige, a I'aide des documents qui sont mis a sa disposition par les diverses Administrations, une feuille periodique, en langue fran- caise, sur les questions concemant I'objet de I'Union. Les Gouvernements des pays de TUnion se reservent d'au- toriser, d'un commun accord, le Bureau a publier une edition dans une ou plusieurs autres langues, pour le cas ou I'experience en aurait demontre le besoin. Le Biu-eau international doit se tenir en tout temps k la disposition des membres de FUnion pour leur fournir, sur les questions relatives a la protection des oeuvres litteraires et artistiques, les renseignements speciaux dont ils pour- raient avoir besoin. Le Directeur du Bureau international fait sur sa gestion un rapport annuel qui est conamunique a tous les membres de I'Union. Art. 23. Les d^penses du Bureau de I'Union intema- tionale sont supportees en commun par les Pays contract- ants. Jusqu'a nouvelle decision, elles ne pourront pas depasser la somme de soixante mille francs par ann6e. Cette somme pourra ctre augmentce au besoin par simple decision d'une des Conferences prcvuos a I'articlc 24. Pour determiner la part contributive de cliacun des pays dans cette somme totale des frais, les Pays contractants et ceux qui adh^reront ultericurement a I'Union sont di^^isds en six classes conlribuant chacune dans la proportion d'un certain nombre (i'unites, savoir: APPENDIX 867 1"* classe 25 unitZ-s 2™" classc 20 unity's 3"'" classe 15 uiiit(''.s 4""* classc 10 iiiiit('-s 5'"'' classe 5 nnitt's 6""" classe :i unites Ccs coefTicionts sunt niultiplies pur lo nomhrc dos pays dc c'h.'Ujue clu.sse, vA la soiiunc des produits aiiisi obtcnus fournit le nonihre d'unites par lequel la dej)ense totale doit etre divisee. Lc (luotient donne le montant de I'unite de depenso. Chacjue pays dcdarera, au moment de son accession, dans laquelle des susdites classes il demande a etre range. L'Administration Suisse prepare le budget du Bureau et en surveille les depenses, fait les avances necessaires et ^tablit le compte annuel qui sera communiqu6 a toutes les autres Administrations. Art. 24. La presente Convention peut etre soumise a des revisions en vue d'y introduire les ameliorations de nature a perfectionner le systeme de I'Union. Les questions de cette nature, ainsi ciue celles qui inte- ressant a, d'autres points de vue le developpement de I'- Union, sont traitees dans des Conferences cjui auront lieu successivement dans les pays de I'Union entn* les dt'legues desdits pays. L'Administration du pays ou doit sieger une Conference prepare, avec le concours du Bureau inter- national, les travaux de celle-ci. Le Directeur du Bureau assiste aux seances des Conferences et prend ])art aux discussions sans voix deliberative. Aucun changement a la prdsente Convention n'est 868 APPENDIX valable pour rUnion que moyennant I'assentiment una- nime des pays qui la composent. Art. 25. Les £itats etrangers a rUnion et qui assurent la protection legale des droits faisant Fob jet de la presente Convention, peuvent y acceder sur leur demande. Cette accession sera notifiee par ecrit au Gouvernement de la Confederation Suisse, et par celui-ci a tous les autres. Elle emportera, de plein droit, adhesion a toutes les clauses et admission a tous les avantages stipules dans la presente Convention. Toutefois, elle pourra contenir I'indication des dispositions de la Convention du 9 septem- bre 1886 ou de FActe additionnel du 4 mai 1896 qu'ils jugeraient necessaire de substituer, provisoirement au moins, aux dispositions correspondantes de la presente Convention. Art. 26. Les Pays contractants ont le droit d'acceder en tout temps a la presente Convention pom* leurs colonies ou possessions etrangeres. lis peuvent, a cet effet, soit faire une declaration gen^rale par laquelle toutes leurs colonies ou possessions sont com- prises dans Faccession, soit nommcr expressemcnt celles qui y sont comprises, soit se borner a indiquer celles qui en sont exclues. Cette declaration sera notifi6e par ^crit au Gouverne- ment de la Confederation Suisse, et par celui-ci a tous les autres. Art. 27. La presente Convention reniplacera, dans les rapi)orts entrc les Etats contractants, la Convention de Berne du 9 septembre 1886, y compris l^Vrticle additionnel et le Protocole de cloture du meme jour, ainsi que FActe additionnel et la Declaration interpretative du 4 mai 1896. APPENDIX 869 Lcs actes conventionnels ])r(^'cit(?s rostcront en vigueur duns Ics rai)i)ort.s avcc los Etats qui nc ratificraient pas la pr6sente Convention. Les Etats signal aires de la presente Convention jxjur- ront, lors de rechange des ratifications, declarer qu'ils entendent, sur tel ou tel point, rester encore li6s par les dispositions des Conventions auxquelles ils ont souscrit anterieiirement. Art. 28. La presente Convention sera ratifi6e, et les ratifications en seront {^'changees d Berlin au ])lus tard le 1" juillet 1910. Chaque Partie contractante remettra, poiu* IV-change des ratifications, un seul instrument, (jui sera d(5pos6, avec ceux des autres pays, aux archives du Gouvemement de la Confrdrration Suisse. Chaciue Partie reccvra en retour un excniplaire du j)roces-verl)al d'c'-cliange des ratifica- tions, signe par les Plenipotentiaires qui y auront pris part. Art. 29. La presente Convention sera mise a execution trois mois ai)res I'echange des ratifications et denieurera en vigueur pendant un temps ind(?termin6, jusqu'a I'expira- tion d'une amiee a partir du jour ou la denonciation en aura etc faite. Cette d(jnonciation sera adress6e au Gouvemement de la Confederation Suisse. Elle ne produira son efTet qu'a lY'gard (hi ]iays (jui I'aura faite, la Convention restant ex^cutoire pour li»s autres jiays de I'Union. Art. 30. Les Etats qui introduiront dans leur legislation la duree de ])rotection de cinciuante ans jir^vue })ar 1'- article 7, alinea 1", de la pre.sente Convention, le feront connaitre au Gouvemement de la Confederation Suis.^^e par 870 APPENDIX une notification ecrite qui ssra commimiquee aussitot par ce Gouvernement a tons les autres Etats de rUnion. II en sera de meme poiir les Etats qui renonceront aux reserves faites par eux en vertu des articles 25, 26 et 27. En foi de quoi, les Plenipotentiaires respectifs ont signe la presente Convention et y ont appose leurs cachets. Fait a Berlin, le 13 novembre mil neuf cent huit, en un seul exemplaire, qui sera depose dans les archives du Gouvernement de la Confederation Suisse et dont des copies, certifiees conformes, seront remises par la voie diplomatique aux Pays contractants. {Suivent les signatures.) INDEX A Abandonment page in use (jf title 449 Abbreviations in notice of copyright "lUl Accident film destroyed by 220 in theatre, see "Theatre." raiscellaneous, in theatre '-i2'-i Accounting defenses to, in copyright action 614 in copyright action, method of procedure G23 in unfair competition 4*i infringement of common-law rights 498 not given where actjuiescence shown 452 of profits in copyright action 008, Gl.i ordered even where no knowledge 592 Acquiescence in use of title 449 right to injunction though not to accounting 452 scienter 451 Action allegations and proof required in copyright 59;} cause of, for malicious discharge of actor 140 cause of, in copyright and unfair comfK-tition joined 584 cojjyright, in e(|uity 0()2 joinder of caus<>s of 577 misjoiiuler of |)arties to 577 on copyright, where brought 585 871 872 INDEX Action — Continued page on unpublished work, where brought 586 proceedings for injunction, damages, profits and those for seizure of infringing copies and plates may be united in one 619 proprietor must show how he acquired copyright 596 purporting to be brought under Copyright Act 628 who may maintain, for infringement 577 Action at Law in copyright actions 626 may be pursued in copyright actions concurrently with one in equity 627 Actor a wage-earner under Bankruptcy Act 263 actor's breach of contract — damages 166 anticipatory breach by producer 135 booking agencies 178 changing motion picture 169 contract for transportation — damages 193 contract for work on Sunday 125 contract labor and exclusion laws 191 contract with infants 173 control of exhibition of motion picture 173 costumes ■■ 197 death terminates contract 164 enticement of 198 escrow agents 186 exclusive contract not in restraint of trade 96 exposure to obscenity, ridicule, degradation, etc 136 failure to rehearse 156 form of notif'c of discharge to be given to 164 garnishment of salary 184 grounds for discharge 156 how many causes of action for breach 145 illness of 157 immorality of 162 inability of producer — when studio closed by authorities 176 incapacity to perform 157 incompetency 158 INDEX 873 KctOT—ConlimwA p*"^ "incompetency" not equivalent "un.satisfactory" - • l-'^'J injunetion for breach of contract where acrvices are special, unique 95 108 and extnionlinary iiijuiirtion Mcndcnte hte iiiiunes hv, to patrons •'**' insolence of insubordination of ^"f intoxication of ' *"* law KoverninK validity of contract 1*-^^ t 1 7 IciiHt h of engagement " ' lial)ility of manager for negligence of ^19 lihcl of. 202 liiiuidatcd damage clause for breach 152 measure of damages in event of breach of contract 147 modification of contract 142 not requirctl to i)lay inferior part 139 performance in unlicensed theatre 192 power of company's officer to contract— agency 195 producer's offer of reemployment after breach 154 profits iLS a basis for damage 149 proprietor liable for insulting language of 322 questions of travel 1'* remedy for l)reacli of contract 146 remedy for malicious discharge 14« remedy where mutihition of motion picture occurs 171 renewal of contract l'*'^ right to perform part of contract 105 royalties in addition to salary 190 services "actually performed" 131 substantial performance 13^ tender of services after breach 147 two weeks' notice and other customs 119 unfaithfulness of 1^2 warranty of n^iuisite skill and al)ility 159 when contract between actor and producer a joint venture 1S7 where contract with producer not one of joint venture H>S where he |ioses m serial story '■°*' wlu-re services arc to be "satisfactory" H- VVorkujen Com|K'nsution AcIjj 1°" 874 INDEX Act PAGE of play a component part thereof 545 word " Act " a descriptive title 410 Ad Interim Protection of foreign works 641 Admission Fee for Sunday performances 392 Advertisements billboard 228 contract with lithographer for posters 228 copyright in 536, 539, 540 curtain displays 228, 229 curtain displays in first-class theat res 230 immoral 377 important in unfair competition 463 insertion of infringing, makes one liable 587, note misleading not copyrightable 541 Agency between belligerent alien and citizen 530 payment of royalties to agent 531 power of company's officer to contract for services of actor 195 Aisle chairs and fixed seats in 366 patron injured in 306 space in rear of orchestra 366 standing in 365 Alien belligerent, status of, for copyright 527 right to secure copyright 524 see "War." see "Delligerent Aliens." Allegations nccoHHury in copyright action 593 INDEX 875 American Citizen pa<;k how U) socuro eopyrlKht in rnit/>c to sue 531 right of, to sue on their copyright 528 Benefit Performances broach l»y theatre owner 259, 260 j)roceeds devoted to charity 259 when license required 2r»0 Berlin Convention of I'JtMi— Text in Knglish 836 of 1906— Text in French 858 BUI see "Conjplaint" "Action." Bill of Particulars in coi)yrinlit action 599 of several causes of action 599 Bill-Poster immoral 377 may be copyrighted 539 Book scenario copyrighted as a 540 title of, not i)rotected by copyright 403 various titles of 440 Booking Agency power to l)in(l producer when booking actor 19t> with respect to actors 17S Booking Agreements circuit aj;ent for thinitre owner 25<) not interstate couunerce 258 880 INDEX Booking Agreements — Continued page specific performance of 257 theatre owner sued by manager 256 when interstate commerce 261 Book Rights defined 26 Booth regulations with respect to 367, 368 when a theatre Hcense required for 340 Bowling-Alley when a theatre license required for 340 Breach anticipatory, by producer 135 of actor's contract to expose to obscenity, ridicule, degradation, etc. 136 of contract by actor — damages 166 of contract of actor — number of causes of action 145 producer's offer of re-employment after 15 1 remedy of actor for 146 Burlesques copyright 54 1 whether infringement on copyright 537 C Cabaret theatre license not required 341, 348 Canada copyright in Dominion of 655, 660 Cartoonist tardiness ground for discbarge of 158, note Cartoons animated 469, 470 copyright in 536 "dramatic compositions" 538 INDEX 881 Cartoons —CorUiniied I'aue how |)r<)to('te(l 400 ill conflict with play 405 infringcmont of drariiatic rights in .'>.S2 Catalogues copyright in .'i 10 Censorship l)oar(ls of 383 extent of discretion in boards of 390 Kederal Hoard 388 in general 383 Certificate of (dinri^ht, as evidence 598 Chancery Rule iiuniher one hundred and seven followed in accountings in copy- right actions 024 Chandelier dro[)[)inK of, lial)ility for 311 inspection of, no defense 311 Changes in text of work see "Literary Works" and "Author" Chapters of a work, component parts 545 Charitable performance violating Sunday statute 401 Charitable Entertainments not reheved from olitaining licenses 347 see "lieneht Performances." Church distance from theatre 'S6A, 371 license refused theatre for proximity to 358 882 INDEX Circulation page right of restricted, under conunon law 495 Circus a private enterprise 385 whien a theatre Ucense required for 340 Citizen may secure copyright 624 see "American Citizen." Civil Rights EngUsh doctrine 272 exclusion from theatres 295 exclusion from theatres for race, creed or color '. 296 Federal doctrine 272 New York statute prohibiting use of name or picture 271 use of name or picture of individual prohibited 271 Civil Rights Law of N. Y. applies to "Weekly News Pictures" 285 cause of action personal 278 consent — to l)e in writing 275 history of 271 infant may maintain action 278 name used without consent enjoined 275 not intended to prevent dissemination of news 281 picture enjoined where plaintiff had not posed 274 remedy at law or in equity 271 right not possessed by persons of prominence 278 right not possessed by criminals 279 statute strictly construed 279 use of name or picture libelous 282 use must bo for trade or advertising 271 when estopix'd from invoking statute 281 when picture libelous 272 who has !il)and()nod the right 278 who liable for violation 278 wholly prospective 271 INDEX 883 Co-authors page arc tcniiiit.s in common 37 composer of music and scenario writer /VJ contract of co-aulliorship not ossignublc 51 contract of co-autliorshii) entire 51 contracts In'twocn themselves 45 contracts l)et\ve<'n themselves and publishers 45 contracts l)etwe<'n themselves and publishers are for personal serv- ices 46 effect of death of one 47 elements of skill and confidence 48 in action by one, all to be joined 44 in action by one, against licensee, others need not be joined 45 in general 35-45 may grant rights without consent of co-author 37 may not however grant exclusive rights 38, 39 may not destroy rights of crwuithor 40 may not be eoiniH-iled to account 41 may sue each other for infringement of the common work 45 not co-i)art iiers 42, 46 not joint-venturers 46 partnership bj' s|M'eial contract dissolved by death of one 47 test as to what constitutes 35 Classification validity of copyright not affected by 503 Collaborators in gi'iicnii 35— J5 Combination of 1 heme confers copyright 534 Combinations see "Restraint of Trade." Comedy is a descriptive title 408, note Competition sec " I'lifair Competition." 884 INDEX Common Errors page as a test of infringement 573 Common-law Rights adverse possession 494 coincidence as a defense 576 conversion of manuscript — damages 499 death of owner of manuscript 493 enforceable in state courts 493 in England 494 in United States 494 infringement 498 in general 491 not co-existent with copyright 496 pass to purchaser of manuscript 493 publication 495 publication in England not necessarily publication here 510 reserving performing rights 497 what is publication 503 what rights are secured to author under 494 what rights are secured to author before publication 495 what rights are secured to author after publication 495 Common Sources defense 568 Compensation of actor an element in granting equitable relief 104 Complaint (Iciniirror to, on copyright 594 how "deposit of copies" pleaded 596 motion to make more definite in copyright action 599 must show autliorship 597 nmst show deposit 596 must show registration 59() must show steps taken to secure copyright 594 Compliance of copyright statute as to notice 514 INDEX 885 Component Parts vac.b coin'riglit in •'^'^ Composite Work rciiowiil of copyriKlit ^' rcsiTving rights to contribution to 556 Concert license does not permit stage plays •^44 when a theatre Hceiisi- r(>(iuired for 339, 343 Condition license granted on, that theatre remain closed on Sunday 3G0 license for tlieat re granted upon 358 Coincidence similarity by ^'"^ Constitutionality of censorship statutes 384 of statutes regulating "ticket-scalping" 381 of statutes requiring theatre licenses 345 of Sunday statutes 399 Contract anticipatory lireach l)y producer 135 breach by actor where services are special, unique and extraor- dniary _ breach of, to expose actor to obscenity, ridicule, degradation, etc. 130 breadi of executory, to play at tlieatre 149 breach by actor — damages 1<^G court not bound l)y provision jus to liquidated damages 107 court not ousted of jurisdiction by provisions in 190 for advertising -_ for assigmnent of copyright siJecifically enforced 554 for rental of film for Sunday ^'^^ for transportation of actor — damage 193 ground-^ for discliarge of actor 156 law governing validity of actor's ■.".■■■■ ^^ lial)ility of producer to actor where studio closed by authorities. . 176 liciuidated damages where breach by acU)r !*>*> 886 INDEX ContreiCt— Continued page made in one state for theatrical production in another 261 of actor, how many causes of action for breach 145 of actor — modification 142 of actor, personal in its nature 157 of actor providing for "no play, no pay" 132 of actor providing for royalties in addition to salary 190 of actor providing for sharing of profits does not constitute joint venture 1"^ of actor — renewal l'*2 producer's offer of re-employment after breach of 154 providing for performances in unlicensed theatre 192 recovery by actor where substantial performance 133 recovery on a quantum meruit where actor ill or dead 133 remedy of actor for breach 146 set-ofT by producer or distributor , 218 set-off of moneys received by distributor 218 services of actor to be "satisfactory" to employer 112 stipulation that services of actor are unique, not binding 108 tender of actor's services after breach 147 theatre leases 237 to assign copyright may be by parol 551 where contract between actor and producer a joint venture 187 with actor for work on Sunday 125 with actor must be mutual to be enforcoalile in equity 102 with actor providing for payment only when "actually perform- ing" 131 with infant actors 173 Contract Labor and Exclusion Laws with respect to actor 1^1 Control right to, publication 495 sole exclusive, in work before publication 495 Co-Partnership copyright may be taken out in name of 532 Contrivances c<)|)yright in 536, 538 INDEX 887 Conversion page predicated on wrongful use of film 225 Copy copyright in inferior 541 inferior, niuy be infringement •>i3 right to, under common law 495 right to, under copyright ^^ right to permit others to, under common law 495 right to give away a, under common law 495 Copyright action on, where brought 585 ad interim protection 641 advertisements 53G and patent rights distinguished 481 assignee may sue . . . . t • 577 assignment of 550 assignment and license distinguished 557 bankruptcy — title in trustee 643 belligerent aliens 51-7 bill of particulars 599 bill-posters 539 British, Colonial and International 654 burlesques 541 cartoons 536 catalogues 540 certificate of, as evidence 598 changing title of work 521 common-law rights 49 1 common sources 5o8 component parts 544 contrivances 536, 538 criticism . 541 distinct from right in material work 554 does not prevent sale of physical property 644 duration of 546 editorials 539 facts to be alleged and proved 593 failure of licensee to insert notice 519 888 INDEX Copyright — Continued page false notice of 520 gags 536 government publications 540 how secured 500 immoral and seditious works 536 impUed warranty of title where, is assigned 557 improper name on notice 519 inferior copies 541 infringement, test of 559 intent to infringe 586, 591 in Commonwealth of AustraUa 655, 658 in Dominion of Canada 655, 660 in Dominion of New Zealand 655, 659 in Newfoundland 655, 658 in Union of South Africa 655, 660 in United Kingdom and Protectorates 654 international 672 in what name it may be taken out 532 joinder of action in, with action in Unfair Competition 584 joinder of causes of action 577 knowledge and intent not necessary to infringe 588, 591 knowledge and intent, early American rule 589 may unite cause of action for, with Unfair Competition 460 method of obtaining, for motion picture 500 misjoinder of parties 577 music in theatres 649 new matter 543 newspaper 539 not always lost by omission of notice 517 not co-existent with common-law right 496 notice of 510 object of granting 561 of lab(;ls and prints 739 one advantage of 577 parodies : 541 perff)rinanc(' of play not a publication 497 porfortriing rights 497 pliotographs subjects of 539 jHioling 489 INDEX 889 Copyright — Conlimied pagk l)rcsiih>ntial proclamations ^'^'i priiiKiry tost of infringement 561 proliihition of importation of piratical copies (MO proprietor must sue 577 publication generally 494 puljlic domain 544 Remedies account ing ^23 actions at law 626 actions in equity — in general 602 actions purporting to be brought under Copyright Act 628 appeal 638 construction of forfeiture and penalty clauses 6."}6 final hearing 608 injunction as to part 619 preliminary injunction 602 statute of limitations 6^^6 willful infringements 634 writ of seizure 621 renewal of 547 restrictions in re-sale of work 487 return of copies deposited 639 ri'vised edition 543 right to, when not conveyed 583 right secured by 499 scenario 540 selling second-hand copies 64b similarity by coincidence 574 stage-business 536 strict coini)liancc with statute necessary 593 subjects of 534 taken out in wrongful trade name 5.'J4 taxability ♦>4-'< term of 54b test of what is sul»ject of 535 title not protected by 403 uni)ui)lislied works '. 54u us(> of title after expiration of 4;iS validity of, not alTected l)y classification 503 890 INDEX Copjrright — Continued page what complaint must show 594 what is publication t 503 when work secured by prize contest 88 who is liable for infringement ; 586 who may maintain action 577 who may secure 524 Cop5rright Act British, of 1911— text 762 Canadian, of 1906— text 812 United States, of 1909, as amended by Acts of 1912, 1913, 1914— text 677 Copjnight Conventions of United States and Hungary — text 722 of United States and other American Republics — text 725 Copyright Oflice rules and regulations of United States — text 740 rules and regulations of Canadian — text 833 Corporation copyright may be taken out in name of 532 renewal of work copyrighted by 547 Costs in copyright action 608, 616, 617 Costumes of actor 197 Courts not bound by stipulation that services of actor are unique 108 Criminal knowledge necessary in, proceedings 591 Critic may exclude, from theatre 295 INDEX 891 Criticism *'^''*'- not infrintrement of copyright ^1 of plav. wJien a libel ^^ private exhibition for, under common law 495 work of the author ^ Crowds theatre proprietor must provide for safety of 318, 319 Customs definition of ^22 how pleaded 125 in theatrical profession , 11" niiseeihineous, in theatrical profession 123 two weeks' custom H^ what are 1 1^ D Damages actor hound to mitigate 147 breach of contract by actor 166 contracts for transportation of actor 193 conversion of manuscript 499 evidence of experts on receipts of theatre 247 in copyright action 608, 610 in unfair competition 455 liquidated, breach by actor 166 liquidated damage clause 152 measure of, breach of actor's contract 147 measure of, failure to produce film 220 measure of, for breach of contract to produce 216 method of ascertaining, on producer's default 220 ordered even where no knowledge 592 plaintiff entitled to recover actual losses as a part of 151 profits as a basis for 149 prospective profits a measure of 149 punitive, awarded for jussiiult of patron of theatre 3;}1 where actor's contract sul)ject to two weeks' notice 121 where irreparable, injunction will issue against actor 95 where stipulated between author and producer 83 892 INDEX Dance Steps page- copyright in 536 Dance-halls regulation of 346, note Dancing distinguished from skating 341 no license required for 342, 343 Date in copyright notice may be in roman numerals 517 Death of actor terminates contract 164 of author, as affecting right to renewal of copyright 549 of owner of common-law rights to manuscript 493 of performer of troupe cancels contract 161 Deception need only be calculation for 458 Decree final, in copyright action 618 interlocutory decree ordinarily entered after finding of infringe- ment 618 Dedicated when work dedicated 497 when publication of story in magazine is a dedication 556 work published without compliance with statute is 506 Defense by producer of actor's earnings after discharge 148 in copyright action, laches 608, note of coincidence 576 of common sources 568 offer of re-em[)loyment to actor after breach 156 two weeks' custom — how pleaded 125 INDEX . 893 Degradation page (■xp(xsnro of actor to 136 Deposit of coi)ic.s after temporary injunction 598 of copies, how pleaded 5!Xi of copies necessary to maintain action 503 of title and description 500 return of copies deposited in coijyri^ht oflSce 639 to he made i)romptly after publication 503 Description deix)sit of, as UDpublisbed work 500 Descriptive title, not protected 407 Development of t heme confers copyright 534 Devices sec "Marks and Devices." Director his rights in general 209 Discharge aetor must seek other employment after 147 damages recoverable by actor for, when fixed beforehand 165 grounds for, of actor 156 of actor for insolence 162 of actor for insubordination 162 of actor for drunkenness 163 of actor for non-adherence to union 164 of actor for his failure to secure proper license required by law. . lt>4 of actor for violation of provisions of contract 156 of actor for failure to appear at rehearsals 156 of actor for illness 157 of actor for incom|)ctoncy 158 of actor for "unsatisfactory" services 112, 159 894. INDEX Discharge — Continued page of actor for immorality 162 of actor for incapacity to perform 157 of actor equivalent to notice where contract subject to two weeks' notice 121 see "Actor." Discretionary Power to grant theatre licenses < 349, 351, 352 Distances of theatre from church or school 364, 371 regulation of theatre with respect to 362 Distribution right to make qualified, under common law 495 Distributor bankruptcy 261 exhibitor and, licensee and licensor 225 franchise and booking agreements 256 in general 214 interstate commerce 260 liable with producer and exhibitor 467 libel 264 may enjoin infringement of state rights 222 may not injure high standard 221 may restrain producer from granting other "state-rights" 223 must release regularly 222 must release under j)roducer's name 222 not a "trader" under Bankruptcy Act 261 not entitled to mutilate film 221 of film liable for infringement 590 replevin of film and machine 235 to bear loss for dest royed film 226 when entitled to exploit "state-right" films 222 Drama is a descriptive title "^l*^ sec "Play." INDEX 895 Dramatic Composition page cartoons, w hetlier copyrightal>le as 538 common sources 568 infringements of 562-56.') is :i cii'S(Tii)tive title 408, note rights of author, whore motion picture based upon 1 scenario not coj)\TiKlitcd as 19-21, 540 Dramatic Entertainment a motion pict lire exhil)ition is a 338 motion i)icture held, in Sunday statute 397 when license rec|uired for 338-343 Dramatization Rights assij^nniont of, carries picture rights 552 author of magazine article reserving 555 construing "presentation on the stage" 7 construing "dramatic version" 8 construing "all dramatization rights" 5-9 grant of "all dramatization rights" 5 grant of, does not necessarily divest author of picture rights. ... 5 in cartoons infringed 582 in uni>ul)lished works 556 licensor may reserve stage rights 10 stage rights given subsequently to picture rights 9 time of grant ini|X)rtant as showing intent 8-9 when in unfair competition with picture rights 5 when motion picture rights not in contemplation 2 when picture rights suspended 5 when suspension perpetual 7 when they include motion picture rights 2 Dramatize right to, under common law 495 Dressing-room actress hurt in 310 Drunkenness of actor 163 896 INDEX Duping PAGE of films 634 "state-rights" owner not to "dupe" 224 Duration of copyright 546 E Edition revised, copyright in 543 Editorials copyright in 539 Employe rights of author when relationship that of 26 when author, no formal assignment of work necessary 27 when author engaged in writing only incidentally 29, 34 when not liable for infringement 590 who is paid salary to write has no rights in work 32 who receives profits as well as salary has no rights in work 32 who is paid space rates has no rights in work 33 Employer author's works vest in, as soon as created 33 rights of author when relationship that of employe 26 right to renewal of copyright 547 when deemed proprietor of author's work 27 Engagement of Actor length 117 English common-law rights 494 coi>yright 654 war copyright statute 532 Enticement of actor 198 Equitable owner of copyright may be party 582 INDEX 897 Equity page copyriKht actions in 602 copyright uftion in, may be pursued concurrently with one at law 627 copyritdit action in, procedure after finding of infringement 618 final hearing in, in copyright action 608 Escrow Agents provision in actor's (xjntract with respect to 180 Exchanges in general 214 Exclusion fmin theatre, see "Theatre." Exemplary Damages for infringement of common-law rights 498 Exhibitor atlvort ising matter 228 banknii)tcy 261 benefit jx^rformancea 258 biIl-iH)sters 228 distributor and, licensor and licensee 225 exhibition of motion picture, how proved 598 fixtures 232 f randiise and booking agreements 256 in general 214-225 interstate commerce 200 liable with i)roducer and distributor 467 libel 264 hbelous film, tort feasor 226 may enjoin licensor for violation of exclusive grant 227 must pay for film though thewtre closed 226 of fihn liable for infringement SIX) j)rivate exhibitions 258 pn)Knim8 . 228 replevin of film and maclune •. 235 theatre, when a nuisance 251 theatre leasc-s 237 when not entitled to specific performance of exclusive gnint 228 898 INDEX Exit PAG^ may open on an alley 367 patron injured at, of theatre 306 rear exit, no right to leave by 310 regulations as to 369 Expression copyright in form of S60 Extraordinary injunction against actor where services are 95 where services of infant are 173 Extra-territorial effect of publication 510 F Facts which must be alleged and proved in copyright action 593 Farce is a descriptive title 408, note Feature elaborating two-reel into 544 Film all who handle, liable for infringement 590 considered inflammable 367, note exhibition of, how proved 598 importation of, may be censored 389 lessor of, proper i)arty to action 578-579 lessee of, proper party to action 578-579 restrictions on use of 485 sale of, (loos not cdnvey copyright 555 Final Hearing in copyriglit action 608 Fire film destroyed by 226 INDEX 899 File — Continned pack in.sportion of theatre 3<>8 regulations with rospoct to theatres ;j(>3 Fire-escapes of t Ileal rn 369 Fire-extinguishers nunlatioiis for theatres 369 theatre proprietor must provide 319 Fireman may inspect theat re 368 who |)ays, for supervision of theatre 368 Firm copyriplit may be taken out in name of 532 First-class Theatres curtain displays 230 distributor may not lease to cheaper house 221 is motion picture house a 238-239 I)icture to be produced in 74 with respect to leases 237 Fixtures actions to enforce mechanic's lien on 233 balust rades 235 borders 235 carpets 235 carousel 235 chairs 232 clock 235 combination closet 235 curtains 235 dance floors (portable) 235 dn)p curtain 234, 235 Ras ai)plianccs 233 lighting appliances 233, 234 oilGttcr 2?.3 900 INDEX Fixtures — Continued page piano 235 scenery 234 settees 235 special scenery 234 stage-fittings 234, 235 switchboard 234 ticket-booths 235 wings 235 wires (electric) 234 with reference to theatre buildings 232 wrenches 235 Foreign Work plays based on, in pubUc domain 569 Forfeiture and Penalty Clause in copyright statutes 636 non-payment of royalties 84 of license, for failure to pay roj^altics 84 of license, for insufficient performances 87 of license, for non-production 87 Forgery to print theatre-ticket wrongfully 383 Franchise Agreements see "Booking Agreements." Fraud in Unfair Competition 455 justifying rescission by author 90 justifying rescission by producer JX) must be proved in actions at law for Unfair Competition 469 G Gags copyright in 536 Garnishment of salary of actor 184 INDEX 901 Gestures •'^^^ (•()pyright. in . . S36 Government Publications copyright in ^^ Great Britain copyrijilit in "^ see "English." Guarantee of royalties 79-80 H Hats regulations as to removal of 367, note Historical Work rights of rmthor where motion picture based upon H when j)r<>tecte.'37 const nift ion of, one of law for court 7 corporation charter does not remove necessity for obtaining. . . . 347 distinction between assignment and 71 does not pass to trustee in bankruptcy 263 excUisive, an assignment 582 exclusive, is assignment of copyright 558 exclusive grant rc(|iiired to restrain invasions 6 exciusivcness not presumed 6-7 exclusive, for dramatic production of play 2 exhibition, re(iuired for horse-racing 340 extent of discretionary power to 3ol-352 fees excessive 352 forfeiture of, for failure to pay royalties 84 granted on condition that theatre remain closed Sunday 360 may not be withheld after building erected 36.3 municipality est()|)ped from suing for fees 347, note no custom that license is necessarily an exclusive one 124 necessity for 345 necessit}' for license of motion picture exhibitions. 337-343 of stage rights bars picture rights 3-5 of theatre, in general 337 penalties imposed for failure to procure theatre 346 performance of actor in unlicensed theatre 192 power to, discretionary 349 p(nv('r to, may be delegated 350 refused for |)roximity to church or .school 358 right of author to make motion picture after granting exclusive . 2 riglit to, on condition ;}')S statutes reciuiriiig, constitutional 345 terminated for failure to give requiretl number of performances. . 87 terminated for failure to produce work in time 87 theatre, not re(|uired for cabaret 341 theatre, not requiriHl for skating-rink 341 theatre, requireil for circus 340 908 INDEX License — Continued page theatre, required for concert 339, 343 theatre, required for opera 340 theatre, required for pantomime 339 theatre, required for aquarium 340 theatre, required for booth 340 theatre, required for bowUng-alley 340 theatre, required for singing 339, 342 to operate theatre may be oral 347 theatre, required for museum 340 theatre, and liquor license 361 theatre ticket a revocable 292 theatre ticket not revocable, under English rule 297 time of grant of dramatic rights important as showing intent .... 8-9 to exhibit, purely personal 227 unless exclusive, may be given to others 73 validity of, not to be questioned by licensee 592 when violation of, entitles owner to replevin 235-236 ^- where author grants sole and exclusive 73 _^ where author grants, with limitations 74 License Fees exhibitor must pay, though theatre closed 226 Licensor copyright of, not to be questioned by his licensee 592 distributor usually, of exhibitor 225 express covenant not to produce i)lay 10 his picture rights suspended by sale of dramatic rights 7 implied covenant not to produce picture 4 may maintain replevin 237 may reserve stage rights 10 may sue third parties 92 unless exclusive, may grant to others 73 when estopjKid from granting picture rights 2 Licensee exclusive, may enjoin others 74 exclusive, may enjoin liis licensor 74 exclusive, of part, of rights may sue 581 exhibitor usually, of distributor 225 INDEX 909 Licensee — Continued page failure of, to insert notice of copyright 519 < joininl U.S co-pluintifT 678-580 joininK proi)rii'(()r in unpublished work 584 may •><' enjoined fnmi tnutiliiting work 59 may not question liis licensor's copyright 592 may not willihold royalli«>;<, when thin! party infringee 82 may rej-truin invasions only when exclusive 6 need account only to one co-author 42 netnl not be joinci)ri<'t<)r holds as trustee for contributor 16, 17 whrii lillc of, h(!lii a triule-tnark UM Magazine Rights licfined 26 Make-Up copyrinht in ' 536 Manufacturer of film liable for infringement 590 Manuscript author may recover for conversion 88 author may enjoin wrongful iKJSsessor 88 author need not tender, on pn)ducer'8 default 76 converted, damages for 499 damages for failure of author to deliver balance 76 of author lost after submission 87 submission of, may be considered on infringement 591, note Marks and Devices adopted by producers and distributors 460 iLSsignability 465 in unfair competition 400 ripht to, and to title distinguished 466 Master reference to a m:L'() of author a property right 61 INDEX 913 Name — Conlimuil pagr of play, i)icture or lxx)k protected a& trade namo. 107, note one's own, when not ussif^nablc 477 right to, under roninion law 4Q5 when ex^'oufor may not luwign 480 Negative Covenant ill actor's coiitraet yQ to write, enforced 71 to wTite, unique, special and extraordinary 72 Negative Print outright sale 215 shipment of, interstate commerce 261 Negro excluding from theatre 298, 328 Newfoundland copyright in 655, 658 New Matter entitled to cop\Tight 543 of work in public domain 544 News Item rights of author, where motion i)ic'ture i)ased upon 23 when held out as facts, in public domain 23, 24 when held out as fiction, may not be appropriated 24 Newspaper action against, on serial right^s 580 copyright in 539 do not come within Civil Rights Statute 281 injunction against, from printing plot of play before premiere. . . 607 not a private enterprist> 386 right.M of author, where motion picture based upon item in 23 "Syndicate Highta" defined 26 various t it les of 44O " Weekly News Pictures" not classifuil lus 285 when proprietor holds aa trustee for contributor 16, 17 914 INDEX New Zealand page copyright in Dominion of 655, 659 Nom de Plume copyright taken out in 533 when its use may be enjoined 60, 61 when a crime to suppress name 61 Notice abbreviations 516 date may be in Roman numerals 517 false, of copyright 520 false, must contain elements of valid 521 form of 511-513 legibility 513 meaning of 513-515 need not be on copies deposited 513 no, required on unpublished works 510 of copyright, in general 510 of discharge necessary to be given actor 164 omission of, by accident or mistake 517 on motion picture need not include year 512 on prints for foreign shipment 519 on published works, required 511 on work, after renewal of copyright 549 purpose of 513-515 registered trade-mark no 462 rule of "substantial compliance" 514 superfluous words 516 to infringer in unfair competition 457 where placed 512 Novel author may prosecute publisher for breach of trust 13 owner of copyright alone may dramatize 12 purchase of jMcturc rights from pubHsher 12 rights of author where motion picture based upon 11 title of, when in ronflict with title of play 434 Novelize right to, under copyright 500 INDEX 915 O Obscene page s«H' "Immoral." Obscenity cxpusurc of actor to 136 Opera when ;i tliivitrc license required f(jr 340 Operator regulations with respect to 367-368 Orchestra space in roar of is "aisle" 3tHj Order in Council of ( '.reat Britain,— Text, of February 3, 1915 732 Original work need not be altogether, to be copyrighted 534 Owner equitable owner of copyright 582 P Panic lialiility of theatre proprietor 312, 317 Pantomime immoral exliibition 357, note, 373, note when a theatre license required for 339 Parodies copyright 541 no infringement of copyright 5^37 Part "substantial and material. " must bo taken to be infringement. r)('>2 916 INDEX Parties page action in unfair competition against one bar as to other 468 misjoinder of 577 to action in unfair competition 467 when officers, directors and employes Hable 468 Patent copyright and rights under, distinguished 481 history of control and dissolution of motion picture combination 487 pooling 488 purpose of patent laws 486 restrictions after expiration of 485 Penalties for infraction of fire-regulations 369, note knowledge and intent necessary to recover 591 liability for Sunday performance 400 see "Liquidated Damages." seller liable in unfair competition 443, note who liable for 379 who liable for, in copyright infringeifient 586 Pendente Lite injunction against actor 108 see "Injunctions," "Preliminary Injunction." « Performance of actor prevented by illness or death 133 of contract to write within specified time 75 of i)lay not a publication 497 of un[)ublishcd works a crime 635, note private exhil)it ion not a 588 .substantial, by actor 133 Performer sec "Actor." Performing Rights in utii)iibliHh('(i work vest statutory 497 not giv(!n under early Htututes 497 INDEX 917 Performing Rights — Continued vkqt. reserved hy author ■*'J7 right uf , under copyright •'3'X) Periodical nscrvinn dnimiili/.iitioii rights in contribution to. 555 when proprietor holds as trustee for contributor 10-17 Photographs infriiif^einent to iiuike, of sculpture 539 may be coiJvri^hted 539 no coninioii-law right to prevent use of 269 on post cards 270, note, 277 Piratical Copies I)rohibition of inij)ortation of 640 ^^ Play copyrighting motion picture which is not a photo 501 grant of prochicing rights in 1 in condiet with cartoons 405 infringf'ineiit.s of 562-565 is a descrijjtive title 408, note perfonnance of, not a publication 497 title of, not protected by copyright 403 title of, and title of book 434 to be written to "siifisf action" of manager 115 unfair competition between titles of 443 value of, how estimated 78-79 Playwright right to retain identity of hia work 172 see " author." Plot iiifriiigeineiit by expanding 5tj0 Poem rights of author wheR> motion picture based upon 15 Policeman may inspect theatre 368 918 INDEX Police Power page Sunday closing 399 see "License," "Regulation." Positive Prints in general '■ 215 shipment of, interstate commerce 261 Preliminary Injunction in copyright action 602 laches a bar in copyright action 607 may be suspended upon certain conditions in copyright action . . 606 newspaper prevented from publishing plot of play before premiere 607 not binding on trial court in copyright action 618 on whom binding in copyright action 606 when temporary restraining order granted in copyright £lction . . 605 will not become effective in copyright action until security given 605 Presidential Proclamations see " Proclamations." Prevent right to, publication 495 Price-Fixing in general 481 Print right to, under common law 495 Privacy Bee "Right of Privacy." Private Enterprise circus is a 385 Triotion picture business a 385 ncwH[)aper not 386 tli(;atrc a 385 INDEX Olii Private Exhibitions i'A'.k hnacli !)> llicutre owner -•'>■' for criticism, under common law 490 not infriiincincnUs •'iHS procoe- 1, 1915 735 Producer author's work to be done to satisfaction of 73 entitie^ civil and criminal may be pursued concurrently 635 construction of forfeiture anil p(>nalty clauses t>36 coata 6()S. OK), 617 damages ^^''^^ •'•KJ final hearing ^^^ injunction as to part 619 permanent injunction 008 preliminary injunction 602 procedure after finding of infringement OlS statute of limitations 630 924 INDEX Remedies in Cop3^ight Actions — Continued page willful infringements 634 writ of seizure 621 Renewal by assignee of cop5Tight 548 death of author 549 notice to be placed on work after 549 of copyright 547 when application for, to be made 547 Replevin for violation of license 235 of films for failure to pay royalties 224 when film taken out of state 236 Rescission when author entitled to 90 when producer entitled to 90 Restraining Order on whom binding in copyright action 606 temporary, in copyright action 605 Restraint of Trade exclusive contract with actor not in 96 in general 487 * Revocation of theatre license 349-351 of theatre license because of unsafe building 351 of theatre license because of immoral picture 354 Ridicule exposure of actor to 136 Right of Privacy ("ivil Rights Law of New York 271 in general 267 libelous use of name or picture 282 no cotninon-law right 269 INDEX 925 Right of F>rivacy — Coniinued page personal and pro|KTtv rights discuiwed 267 Weekly News motion pictures 284 when liable under statute 274 when not liable under statute 278 Rights motion-picture rights sec, "Dramatic Ilighta." Royalties author entitlcnl to, whether work produced or not 82 forfeiture for non-payment H4 guarantee of 79, 80 in action for, licensor's copyright not to be questioned 592 licensee may not withhold, where third party infringes 82 payment to agent 531 refund of advance 90 "state-rights," failure to pay 224 Btipulatetl, for period or performance 80 to actor in addition to salary 190 when producer entitled to refund of 90 where stipulated SO Rules of Unite•** Substantial part of work must be taken 362 Sunday (•hariluble porfoniiaiu-o given on 401 civil and criminal liability for violation of 399 constmclion of stiiluti-s ■ 394-399 contract with actor for work on I'-iTi early statutt* •^'•^^ •"qiiity will not enjoin violation of 399 e()uil.y will not enjoin |)<»lid on condition tliat theatre mmain clos<«etion by proprietor as a defense to action for negligence. .306-311 ins|M'ctioii of, for fire hazards MiS lessor, liable for infringing |)orformance i\S7 lessor iial)le for structiiro .HY2 liability of proprietor for manager's refusid to |)ermit officer to enter to serve process on actor 197, note liability to trespasser 323, note license rcvoktxl l)ocause of un.'mfc 351 manager not liable for infringing |)orfonnance. . 590, note may In- a tent ;J6.3, 364 measure of proprietor's duty 299 932 INDEX Theatre — Conlinued page notice of defects must be shown 303 not a bawdy house 344 not a dwelling house 345 not a nuisance 344 not a nuisance per se 400, note panic of crowd 312, 317 patron assaulted 326 patron injured by articles dropping 311 patron injured by wild animals 313 patron injured by crowds 318 patron injured by performer . ' 319 patron injured by other accident 322 patron injured by act of stranger 325 patron injured in darkened 306 patron injured in aisles 306 patron injured on steps 306 patron injured at exits 306 patron injured on seat and floor •. . . . 305 patron injured falling over balcony 303 patrons boisterous 252 patrons trespassing 255 performers noisy 252, 254 power of municipality to erect 364 proximity to church 255 prohibition of giving of performances not regulation 371 property lost in 335 proprietor may refuse to sell ticket 293 proprietor may sell ticket on condition 293 proprietor of, liable for infringing pcrfornyincc 5S7 proprietor not insurer of safety of patrons 299 property lost in 335 queue 252 regulation of 362 regulation of Ixiilding 362 rcgulat ion as to closing of 3G7 rcgulaiiona as to operator and booth 367-368 regulation as to removal of hats 367, note right to exclude patrons from 291 seats — injuries in — inspection of 306 INDEX d33 Theatre— ron/ini«'(f 'a Theatre Leases luljoiiiing jiroperty owners 244 assignments 242 building; contracts 242 counterclaim for delay in construction 242 covenant by lessee not to engage in business 24(i declarations of patrons part of "res gestae" 247 deposit as security -50 effect of subse(]uent ordinances 241 fixed rental as well jus profits 245 in action for failure to pay profits, what testimony inadmissible. . 247 in general • -'^ ' Icssik; may sue before date of entry , 251 liability of agent contracting ' 237 liability of owner for repairs 245, note right of municipality to enter into 248 right of way for exit 245 structural defects 243-244, note temint niay not enjoin other tenant for same period 24G theatre shut down l)y authoritii>s 240 theatre shut down by fire 241 when action to recover deposit maintainable 251 when deposit regarded as penalty 250 when joint venture 245-24ti when rent susjK'nded 240-241 Theatre Ticket a revocable license 292 not revocable, under Knglish rule 297 934 INDEX Theatre Ticket— Continued page proprietor may refuse to sell 293 proprietor may sell on condition 293 refund of money for *. 393, note re-sold by speculator 293 "scalping" 381 statutes against "scalping" 381 to print wrongfully is a forgery 383 Theatrical Performance what is 337 Theme arrangement of, confers copyright 534 Thought no copyright in 560 Ticket-Taker not liable for admission of infants 381 Time damages for failure to deliver work on 75 producer entitled to refund where work not produced on 7(> producer may waive performance on 76 producer must give notice to complete 76 producer must produce within reasonable time 78 use of film at, not agreed upon 225 Title acquiescence and abandonment 449 after copyright in work expires 438 cannot part with work and retain 464 can [)art with ix)rli()n of work and retain title 464 change in, invalidates copyright 522 copyright does not extend to 403 de[KJ8it of, as unpublished work 500 descriptive, may not be protected 407 first user obtains exclusive right 410 held not to infringe 445 INDEX *^35 Tiile—Contimted »"*«»: held to infrinfjp "•* how prot<)n, the Npwlywetl's Buby " -WJ " Nfw Km" 440 " N(r\v|M)rl Social Itxifx" 44«i " New ^'ork ( "nmrncrciiil " 44«) "Nj'w York Urtcclive Library"' 447 " Nick Cartor" 447 "Old Dutrli" ■. 39 "Ol.l Slciill. Library'" 405, 447 "Oniiigc Hlossoiii.s" 357, 373 "Otir Folks llliistrateil Pa|>er" 44<» "Our Sailor KiiiK" 441) "Our ^'ouiin Folks" 44»j "Oxford iiibic" 442 "Payson, Druiitcju & Scribner's National System of Peninun- ship" 441 " Peg ()• My Heart" 574 " Pliiladflphia Suburban Life" 441 "Pique" 80 "P. T. O. (People Talked Of)" 448 " Punch & Judy " 448 " Kepublicun New Era" 446 " Sapho " 567 "Sealed Orders". , 445 "Sherlock Holmes" 441 "Slu'rlock Holine«, Detective" , 441 "Shoughraun" 5<>.S "Social Uenisti-r" ' 40K. 44r» "St. KImo" 447, ')71 "Suburl)an Lift-" 441 "The Awn keiiing of Spring" 356, 376 "The Hat lies of a Nation" 425 "The Hirthday Scripture Text Book" 445 "The Birth of a Nation ' 357, 37i> "The Black Crook" 247 "The Canadian Bird Book" 412, 44i< "The Childr.'us Birthday Text Book" 445 "The Com<«-Back" 418, 421, 444 "The Conjinereial Advert i.s<»r" 446 938 INDEX Titles of Works— Continited page "The DaUy Express" 448 "The Decorator" 448 "The Decorators' and Painters' Magazine" 448 "The Evening Post" 448 "The FaU of the Romanoffs" 431 "The Fatal Card" 509 "The Field" 448 "The Field and Kennel" 448 "The Fram Expedition. Nansen in the Frozen World" 446 "The Frank Case" 357, 379 "The Girl from Rectors" 357 "The Girl Who did not Care" 426, 447 "The Girl Who Doesn't Know" 426, 447 "The Good Things of Life" 445 "The Hand That Rocks the Cradle" 356, 373 "The House of a Thousand Candles" 428, 432, 444 "The House of a Thousand Scandals" 430, 432, 444 "The House of Bondage" 5 "The Inside of the White Slave Traffic" 356, 372 "The Investor" 442 "The Maid of Plymouth" 80 " The Merry Widow " 536 "The Miracle" 413, 443 "The Monthly Odd Volume" 445 "The Morning Post" 448 "The National Advocate" 446 "The National Police Gazette" 443 "The Ne'er Do Well" 8 "The New Canadian Bird Book" 412, 448 "The New York National Advocate" 446 "The North Express" 448 "The New Northwest" 446 "The Northwest News" T 446 "The Octoroon" 29, 56S "The Odd Volume" 445 "The Ordeal " 375 "The Plutiiher and Decorator" 44K "The Rosary 410, 422, 444 "The Sex Lure" 356, 377 INDEX 93<» Titles of ^orks— Continue,! paoe "Tlic Shadow". . ^^l "The Spice of Life" ^^•» "Tho Tyranny of the RomanofTs" til. 432 "The Unitetl States Investor" ^^'- "The Wronn Mr. Wright " 410, 445 "The WroiiK Mrs. Wrinht" 410. 445 "T. L). RdlMTtson's Hagerstown Almanack" 441 "Under the (Ja-siiKht" v S67 " Unitetl States Police Gazette" *^ "Webster's Dietii)nary" "* "Where There's a Will " *49 "Where There's a Will, There's a Way " 44U "Willard-Johnson" fight •^"•' Tort Feasor When manufacturer not a joint 589 Trade restraint of '^^'^ Trade-Mark adviuitjinea of registered """^ a-ssignahility '^ embraced in unfair competition 459 no protection as, for letters of alphabet 463 registeretl, no notice 4t>- right to, and to title distinguished 40*i when title of magazine, held a 467 Trade Name lussignability "'"^ eopyriglit may l)e tiiken out in •^*- copyright taken out in wrongful ^^ cmbracetl in unfair competition 459 right to, ami to title di.stinguished ^ 4ti(i title of work protected on theory of '<>^. ""^<^ Tragedy word, is a descriptive title. . t*^*^- ""^^ 940 INDEX Transcription page right of, under copyright 500 Translate right to, under common law 495 Travel actor entitled to recover for time spent in 134 questions of, of actor 177 Treason to pay royalties to belligerent alien 531 Trespasser liability of theatre proprietor to 323, note U Undertaking must be given in copyright action to entitle to preliminary injunc- tion 605 must,be given in copyright action to entitle to temporary restrain- ing order 605 * Unfair Competition accounting, right to • 452, 453 acquiescence and abandonment 449 actions at law 468 action against one, bar as to others 468 acts of third parties 450 between novel and play 434 between stage and picture rights 10 cartoons protecte84 laches 449 marks and devices 460 may unite cause of action for, with copyright 460 neiil not wait until actual infringement 459 notice to infringer 457 parties to the action 467 * protection primarily of trader 458 protects titles as trade names 407, note price-fixing 481 relief, generally 453 restraint of trade , 487 right to assign one's name 477 seller liable 443, note titles, stH; "Titles." titles held to infringe 440 titles held not to infringe 445 trade names and trade-marks embraced in 459 transferability of title 463 use of title after copyright in vvork expires 438 work in public domain protected in title 407 Unfaithfulness of actor 162 Unique injunction against actor where services are 95 stipulaticm that services are, not binding on actor 108 when" services of infant are 173 United Kingdom and Protectorates copyright in 654 Unpublished Work action on, where brought 686 coincidence 576 duration of protection in 640 exclusive license in, protected 583 942 INDEX Unpublished Work — Continued page how copyrighted 500 may reserve dramatization rights in 556 performance of, a crime 635, note right secured to 495 rule as to joinder of proprietor and licensee 584 securing copyright in 501 Use exclusive, in work before publication 495 of film at place not agreed upon 225 of title necessary where protection sought 410 period of, intervening 412 prior user of title 410 right to "use" in patent may be limited , . . . . 482 sole right to, given in patent only 481 V Validity of copyright not affected by classification 503 Value of literary work, how estimated 78-79 Vend right to, under copyright 500 right to, a patented article 482 Version other, under copyright 500 Voice, Tones of copyright in 536 W War license refused to aliens 358 I)if.turc of, when permitted 375 pictures suppressed 357 see " Belligerent Aliens." INDEX 943 Warranty pa'^k »»f actor of requisite skill and ability 159 Wear and Tear iiiiplii"! warranty of outline and fitness 227 of film 225-226 Weekly News Pictures not classifii'd ius mnvspapers 286 8e« "Right of Privacy." Wild Animals negligence to be shown 3l5 old rule of absolute liability 313 Words copyright not a right to use of certain ., 560 Workmen's Compensation Acts with respect to actors 180 Writings cdpyright in author's 560 Writ of Seizure in copyright action, in general *»21 proceedings for, may be united in one action with those for in- junction, etc ^^^ Y Year in notic*' of cropyrighl after renewal 549 of publication, in notice •''1^ of publication not recjuired on motion picture 512 variation of, in notice of copyright 514 University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parl