The Law of the 
 
 Motion Picture Industry 
 
 A Lecture Delivered by 
 GUSTAVUS A. ROGERS, LL. B] 
 
 (OF THE NEW YORK BAR) 
 
 At the College of the City of New York 
 November 28, 1916

 
 NOTE. 
 
 In printing this lecture, the author wishes 
 to take this opportunity to express his ap- 
 preciation of the kindliness and scholarship 
 of the Honorable George W. Wickersham, 
 former Attorney General of the United 
 States, whose great abilities and sound legal 
 standards were always a beacon in the first 
 and early days of the discussion of the law 
 of the motion picture industry.
 
 The Law of the Motion Picture Industry 
 A LECTURE 
 
 BY 
 
 GUSTAVUS A. ROGERS, LL. B. 
 
 OF THE NEW YORK BAR 
 
 Our justification for discussing the law of the motion pic- 
 ture industry is that there has come into the civilized world 
 in the past ten years a medium of expression as revolutionary 
 and important in its way as the printing-press, the telegraph 
 and the flying machine ; and, whereas these three inventions 
 went through years of development and improvement, the 
 motion picture seems to have sprung, Minerva-like, full 
 born on the public, with the consequence that there is much 
 confusion as to the rights of the public and those engaged 
 in the industry; and a general hurry and bustle among cer- 
 tain active and honest souls to put some laws on the statute 
 books without due consideration as to the real necessity for 
 those laws. 
 
 As with Gulliver when he arrived in Lilliputia, the first 
 thought seems to have been to tie up the industry with laws, 
 a tendency which I might say characterizes our day, and 
 which tends to legislation as a substitute for thought. 
 No one regrets this more than the clear-seeing lawyer, who 
 realizes that the attempt to cure gastronomic ills by fiat 
 of government, while appealing to the fiery imagination of 
 the man on the street, tends to undermine the respect of the 
 community for all laws, and what is more, it doesn't cure 
 the dyspeptic. 
 
 An interesting analogy might be drawn between the 
 introduction of the motion picture in our day and the intro- 
 duction of playing-cards into Europe in the thirteenth cen- 
 tury. Playing-cards, as we all know, were invented in the 
 East and were founded on the game of chess, known as the 
 Four Kings. When they were introduced into Europe they
 
 became so popular with the people that various German 
 towns passed ordinances, between the years 1400 and 1438, 
 forbidding their use by the people. In 1440, however, a 
 concession was made, allowing the people to use playing- 
 cards on holidays. In England, Parliament passed a law 
 forbidding their use by common people except on holidays. 
 In other words, the fact that the people had found some- 
 thing that amused them was a sign that they had been lured 
 away from virtue by the devil. 
 
 In view of the confusion of public mind, haste of legis- 
 lative body and hurried decisions by the courts that have 
 followed the rise of the motion picture industry, it seems 
 but right that we should take a survey of what is the law, 
 as it is being applied to this new industry, and what relation 
 that law has to the fundamental laws and principles, without 
 which there cannot be built any superstructure that would 
 seek to take care of new conditions. 
 
 What is a motion picture? Professor Hugo Munster- 
 berg said: "The massive outer world has lost its weight; 
 it has been freed from place, time and casuality and it has 
 been clothed in the forms of our own consciousness. The 
 mind has triumphed over matter and the pictures reel on 
 with the ease of musical tones. It is a superb enjoyment 
 which no other art can furnish us." 
 
 Coming at a time when the cost of most amusement was 
 high, the motion picture was at first a plaything, but it is 
 now accepted as one of the large factors in the history of our 
 day, with educational and scientific possibilities that had not 
 been dreamed of. Every day at least ten million people in 
 the United States go to make up the largest audience and 
 the largest record of audiences that the world has ever 
 known. 
 
 In a previous lecture, Judge Charles M. Hough, an able 
 jurist, told you that Commercial Law is composed of cus- 
 toms of merchants, grafted on the customary law of agri- 
 cultural and pastoral people the crystallized rules of many 
 generations of trades all of which is finally accepted by 
 the courts as general law. He told you, too, that William
 
 Murray, Lord Mansfield, stated most of this law, formu- 
 lated a system of jurisprudence which was suited to the 
 English-speaking people, and by his intellectual force se- 
 cured its acceptance approximately one hundred and fifty 
 years ago. 
 
 But whereas the Commercial Law is the outgrowth of 
 centuries we find even the beginnings of this law in the 
 Code of Hammurabi, dug up in Babylon, and evident in the 
 customs that were accepted even then, 2250 B. C. the law 
 we are to discuss to-night relates to an industry that has 
 come suddenly on the world within the last ten years; but 
 however short the time has been for the law of this industry 
 to develop, its growth has been rapid; and while to-day the 
 law may not be quite settled, it nevertheless has passed its 
 formative period. Perhaps who knows? there may be 
 a Lord Mansfield in this audience who will so shape the 
 law, and with such understanding, that the controversies 
 that are agitating us to-day will be very much things of the 
 past in another generation. 
 
 Touching as the law of this new industry does so many 
 phases of the general law, we cannot in such a discussion 
 as we are having to-night expect to do more than bring out 
 the high lights, and first it may be necessary to go into the 
 general subject of patents, which at the very outset brought 
 into the courts those engaged in the motion picture industry. 
 
 PATENTS. 
 
 The patent phase of the new business produced in the 
 first years of its development a number of decisions which 
 were very important at the time, but now have practically 
 little interest except to the student, because most of those 
 patents have expired; in fact, the basic patent has been de- 
 clared invalid by the courts. 
 
 Ask the average person who is the inventor of motion 
 pictures and the reply will be, Thomas A. Edison. Mr. 
 Edison himself would probably agree that he is the inventor, 
 but the courts have held otherwise. His claim was asserted
 
 under what is known as the "Edison Film Patent," but was 
 rejected by our courts as being untenable.* 
 
 In one of the cases, Judge Wallace disposed of Mr. 
 Edison's claim that he was the inventor of the art of taking 
 still objects and projecting them as moving pictures, or 
 objects in motion; for, after all, you must understand that 
 "moving" pictures do not move. What is seen on the screen 
 is an optical illusion; the eye is led to believe that the objects 
 are in motion, whereas, in fact, it is the camera and pro- 
 jecting machine which make them appear to move. 
 
 In order to thoroughly understand these decisions, we are 
 obliged to make reference to what motion pictures are and 
 the appurtenances for a motion picture exhibition. They 
 are, first; the camera with which the pictures are taken; 
 second, the projecting machine with which the film is pro- 
 jected upon the screen; third, the screen. 
 
 The early stages of the industry, although dating back 
 several years prior to 1907, really begin at that period when 
 the demand for pictures in this country first became marked. 
 The result of this demand was that there came upon the 
 market the productions of about ten American manufac- 
 turers, all but one or two of whom were manufacturing 
 their own product, and a few who were importing films from 
 abroad. There were at that time a number of outstanding 
 patents upon parts of the camera, as well as upon the strip 
 film, already referred to as the Edison Film Patent, and 
 patents upon the component parts of the projecting machine. 
 
 The business at that time was conducted in defiance of, 
 or at least in disregard of, the existing patents. The market 
 was comparatively open and free until the Spring of 1908, 
 when the manufacturers divided into rival factions, one 
 known as the Edison group, who sought protection under 
 the Edison Film Patent and patents upon the parts of the 
 camera ; the other, the so-called Biograph group, who sought 
 protection under patents upon the parts of the projecting 
 machine. 
 
 *See the decision of Mr. Justice Wallace in Edison v. The American Mutascope 
 Company, 114 Fed. Rep. 926. See also Edison v. American Mutascope & Biograph 
 Company, 151 Fed. Rep. 767, and Motion Picture Patent Company v. Chicago Film 
 Exchange, 30 Appeal Cases, District of Columbia, p. 285. 
 
 8
 
 FORMATION OF COMBINATION. 
 
 The Edison group formed a combination of manufac- 
 turers, and licenses were issued under the so-called Edison 
 Film Patent, and the Biograph Company, with their group, 
 formed a combination under the projecting machine patents. 
 They immediately started litigation under the patents, each 
 side seeking to restrain the other. The Edison people were 
 asserting the invalidity of the projecting machine patents 
 and belittling the patents on the machine, and the Biograph 
 group were likewise belittling the Edison patents. 
 
 This continued until about the early Fall of 1908> when 
 the factions came together, and all patents were brought 
 into a holding company, called the Motion Picture Patents 
 Company, and a new system was devised, which was there- 
 after condemned by the Federal Court at the suit of the 
 Government, as being a combination in restraint of trade 
 under the Federal Anti-Monopoly Act* 
 
 After all the patents had been assigned to the Motion 
 Picture Patents Company, a complicated system of licensing 
 under the patents was devised, with license agreements to 
 the manufacturers, who were known as the "Licensed Manu- 
 facturers." These manufacturers did business with the 
 rental companies, or middlemen, who were obliged to agree 
 that they could deal only wtih theatres or exhibitors who 
 recognized the validity of the patents, and who would bind 
 themselves to use exclusively the products of the Licensed 
 Manufacturers. 
 
 With the Eastman Kodak Company an agreement was 
 made that the entire output of the raw stock, or base film, 
 upon which the pictures were printed should be supplied by 
 the said Eastman Kodak Company only to the manufac- 
 turers in the combination, excepting about three per cent, of 
 the output, which the Eastman Company was permitted to 
 distribute for scientific, educational and governmental pur- 
 poses. With the market in this condition, it may readily be 
 understood that competition was completely shut off. 
 
 *See United States v. Motion Picture Patents Co., opinion of Dickinson, J., Dis- 
 trict Court of the United States for the Eastern District of Pennsylvania, 225 Fed. 
 Rep., p. 800.
 
 COMBINATION DECLARED ILLEGAL. 
 
 The final step in the combination, as found by the courts, 
 was that after the manufacturers had succeeded in gather- 
 ing in the rental companies and tying up the exhibitors, they 
 formed a sole selling agency of the Licensed Manufacturers, 
 known as the General Film Company. This company pro- 
 ceeded to, and did, successfully, absorb or put out of business 
 all of the then existing rental companies, with the exception 
 of Mr. William Fox's Company, whose resistance to the 
 exactions and demands of the Motion Picture Patents Com- 
 pany and Licensed Manufacturers led to the suit under the 
 Federal Anti-Trust Law by the Government for the disso- 
 lution of the combination. This suit resulted in the decision 
 of Mr. Justice Dickinson, granting judgment in favor of the 
 United States Government, already referred to. 
 
 To those who are interested in this subject, a reference 
 will be found to the activities of the General Film Company 
 in the report of Judge Clayton, as Chairman of the Com- 
 mittee on Judiciary of the United States Senate, in vol. 2, 
 p. 1,964, of the report of the hearings before that Com- 
 mittee in the Sixty-third Congress, second session, where he, 
 speaking for the Committee, said: 
 
 "Where the concern making these contracts (the 'tying contract') is 
 already great and powerful, such as the United Shoe Machinery Company, 
 the American Tobacco Company and the General Film Company, an exclu- 
 sive or tying contract, made with local dealers, becomes one of the greatest 
 agencies and instrumentalities of monopoly ever devised by the brain of 
 man. It completely shuts out competitors, not only from trade in which 
 they are already engaged, but from the opportunities to build up trade in 
 any community where these great and powerful combinations are operating 
 under this system of practice. By this method and practice the Shoe Ma- 
 chinery Company has built up a monopoly that owns and controls 
 the entire output of machinery now being used by all great shoe 
 manufacturing houses of the United States. No independent manufacturer 
 of shoe machines has the slightest opportunity to build up any considerable 
 trade in this country while this condition obtains. If a manufacturer who 
 has shoe machines of the Shoe Machinery Company were to furnish and 
 place a machine manufactured by any independent company in his estab- 
 lishment, the Shoe Machinery Company can, under its contracts, withdraw 
 all of their machinery from the establishment of the shoe manufacturer and 
 thereby wreck the business of the manufacturer. 
 
 "The General Film Company, by the same method practiced by the Shoe 
 Machinery Company, under the lease system, has practically destroyed all 
 competition and acquired a virtual monopoly of all films manufactured and 
 sold in the United States. When we consider the contracts of sale made 
 under this system, the result to the consumer, the general public and the local 
 dealers and his business, it is even worse than under the lease system." 
 
 10
 
 As a result of this report, several provisions were in- 
 serted in the Clayton Law, which amended the Sherman 
 Anti-Monopoly Law, providing as follows: 
 
 "Sec. 2. That it shall be unlawful for any person engaged in com- 
 merce, in the course of such commerce, either directly or indirectly to dis- 
 criminate in price between different purchasers of commodities, which com- 
 modities are sold for use, consumption or resale within the United States or 
 any territory thereof, or the District of Columbia, or any insular possessions, 
 or other place under the jurisdiction of the United States, where the effect 
 of such discrimination may be to substantially lessen competition or tend to 
 create a monopoly in any line of commerce ; Provided, That nothing herein 
 contained shall prevent discrimination in price between purchasers of com- 
 modities on account of differences in the grade, quality or quantity of any 
 commodity sold, or that makes only due consideration for difference in the 
 cost of selling or transporting, or discrimination in price in the same or dif- 
 ferent communities, made in good faith to meet competition ; And provided 
 further, That nothing herein contained shall prevent persons engaged in 
 selling goods, wares or merchandise in commerce from selecting their own 
 customers in bona fide transactions and not in restraint of trade. 
 
 "Sec. 2. That it shall be unlawful for any person engaged in com- 
 merce, in the course of such commerce, to lease or make a sale or contract 
 for sale of goods, wares, merchandise, machinery, supplies or other com- 
 modities, whether patented or unpatented, for use, consumption or resale 
 within the United States or any territory thereof, of the District of Columbia, 
 or any insular possession or other place under the jurisdiction of the United 
 States, or fix a price charged therefor, or discount from, or rebate upon, 
 such price, on the condition, agreement or understanding that the lessee or 
 purchaser thereof shall not use or deal in the goods, wares, merchandise, 
 machinery, supplies or other commodities of a competitor, or competitors of 
 the lessor or sellor, where the effect of such lease, sale or contract for sale, 
 or such condition, agreement or understanding may be to substantially lessen 
 competition or tend to create a monopoly in any line of commerce." 
 
 This enactment was the result of a hearing devoted by 
 the Judiciary Committee of the Senate to the subject of 
 motion pictures, and for a full discussion reference may be 
 made to the address of your lecturer before that Committee, 
 which will be found in the volume containing hearings be- 
 fore the sub-committees of the Committee of the Judiciary 
 of the United States during the Sixty-first and Sixty-second 
 Congress, vol. 1, pp. 470 to 502.* 
 
 *See also Mr. Rogers' letter to President Wilson of July 27, 1914, incorporated 
 in the speech of Senator Crawford, reported in the Congressional Record of July 30, 
 1914, at p. 14,145. 
 
 11
 
 The result of the filing of the petition by the Govern- 
 ment in the anti-trust suit, and particularly since the decision 
 of the court, announced in November, 1915, has been that 
 the market was opened and competition was restored, so 
 that now it may be said that the opportunity for competition 
 is fairly free. 
 
 This result, however, was not accomplished until there 
 had been a very interesting clash of judicial opinion on the 
 question of the right of individuals, working in combination, 
 to refuse to continue trade relations with another individual 
 in furtherance of a conspiracy to monopolize trade. 
 
 Professor Charles T. Terry, in a lecture before this 
 College, called your attention to the fact that the law would 
 not compel a man to deal with another in contractual form, 
 whether his refusal to deal with the other in the absence of 
 contractual rights was for any cause or no cause. 
 
 When this question came before Mr. Justice Learned 
 Hand,* whose legal acumen and ability is acknowledged, he 
 said in part: 
 
 "I am by no means willing to agree that if ten manufacturers agree 
 together to monopolize the function of middlemen, and in pursuance of that 
 agreement they discontinue selling to existing middlemen and so ruin them, 
 the middlemen have no relief. It is very well to say that each manufacturer 
 may refuse to sell to whom he chooses, and so he may, but his right not to 
 sell is not necessarily so absolute that he can use it as a means of effectu- 
 ating an illegal purpose." 
 
 "That an act is one of a series forbidden as a whole, is an incident often 
 very relevant legally. If it were not we should never have the element 
 of intent in crime or torts." 
 
 The contra was held by the Circuit Court of Appeals, 
 reversing Mr. Justice Hand, the opinion being written by 
 Mr. Justice Lacombe, as follows : 
 
 "It is asserted by defendant-appellant that at no time prior to the insti- 
 tution of this suit was there any contract between it and the complainant, 
 whereby it had agreed to continue to supply complainant with films of its 
 manufacture for any period of time. We find nothing in the record to indi- 
 cate that there was any such contract, and we do not understand that com- 
 plainant contends that there was. 
 
 The Greater New York Film Rental Company v. The Biograph Company, et al.. 
 decided July 12, 1912. 
 
 12
 
 "This being so, we are satisfied that if all the facts averred in the bill 
 were proved at final hearing, and all the inferences of fact which com- 
 plainant contends for were drawn from the facts thus proved, and that if 
 upon some theory or other of those suggested it were held by the trial court 
 that complainant had suffered wrong at the hands of those whom it alleges 
 conspired to injure its business, and that for such wrong it was entitled to 
 some relief against the conspirators, or some of them, it could not obtain 
 specific relief of the sort accorded by this preliminary injunction, viz., a 
 decree compelling the Biograph Company to sell films to complainant against 
 that company's wish." (203 Fed. Rep., p. 40.) 
 
 With the highest respect for the Circuit Court of Ap- 
 peals in this District and the Judges who compose it, I be- 
 lieve that the view of Judge Hand is the correct one. The 
 view of Mr. Justice Lacombe is that with the exception of 
 a public service corporation, or a company engaged in public 
 utilities, one cannot be compelled to have or maintain trade 
 relations with another. To subscribe to this view would, in 
 short, be saying that a conspiracy can be successfully carried 
 on, using so-called lawful means, i. e., the right to refuse 
 to contract, for the accomplishment of an unlawful end or 
 purpose, the ruining of a competitor by the persons so com- 
 bining to refuse to deal with him. 
 
 This theory does violence to the generally accepted doc- 
 trine that a rightful means cannot be used for the purpose of 
 accomplishing a wrongful end. There is abundant authority 
 in the books to sustain this proposition. Those who are 
 interested in the further pursuit of this inquiry will find an 
 expression of it in the opinion of Mr. Justice Dickinson, al- 
 ready referred to (203 Fed. Rep., p. 39), in which he says 
 in part : 
 
 "The conspiracy under this statute, i. e., the Federal Anti-Monopoly 
 Act, as at common law, may have as an element the seeking of an unlawful 
 end or the employment of unlawful means." 
 
 It was also decided in the same case that the fact that 
 the Patents Company, or the manufacturers, were the own- 
 ers of patents upon the camera, or parts thereof, upon the 
 projecting machine, or parts thereof, or in fact upon the 
 film itself, was no defense to an unlawful conspiracy or a 
 monopoly creating a restraint of trade. Judge Dickinson 
 
 13
 
 stated that the ownership of patents cannot be accepted as 
 a defense to the charge of unlawful combination.* 
 
 The defendants, failing to succeed in their contention in 
 the Government litigation, that their patents, or alleged 
 patents, afforded them justification for what would other- 
 wise be unlawful, made the novel suggestion that motion 
 pictures as such were not articles in common use and that 
 they were not the subject of interstate commerce. 
 
 The manufacturers asserted that "photo-plays" were 
 artistic productions "emanating from the brain of the 
 author," and the "artistic development" of the story by 
 living actors. Therefore, they argued, it was not a motion 
 picture film, but in reality the artistic creation, imagination 
 and development of an author's brain, supplemented by the 
 acting ability of the principals engaged in the performance 
 that was the subject matter in dispute. 
 
 To understand the importance of this we need only have 
 reference to the fact that the Federal statue was inended to 
 deal with articles sent into the channels of interstate com- 
 merce, and that the Anti-Monopoly or Trust Act of the State 
 of New York, familiarly called the Donnelly Anti-Trust 
 Law, (the author of which is Mr. Justice Donnelly, of our 
 Supreme Court) , which act is now known as Section 340 of 
 the General Business Law, formerly Chapter 690 of the 
 Laws of 1899, is intended to cover articles in common use 
 dealt in intrastate commerce. 
 
 The claim made by these defendants found its original 
 justification in the decision of Mr. Justice Rosalsky, of the 
 
 See also Bement v. National Harrow Co., 186 U. S., 70. 
 
 Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 154 Fed. Rep., 358. 
 
 Indiana Manufacturing Co. v. J. I. Case Machine Co., 154 Fed. Rep., 365. 
 
 Goshen Rubber Works v. Single Tube Auto & Bicycle Tire Co., 166 Fed. Rep., 431. 
 
 Bauer v. O'Donnell, 229 U. S., 1. 
 
 United Shoe Machinery Co. v. La Chatelle, 212 Mass., 467, pp. 480 and 481. 
 
 Henry v. Dick Co., 224 U. S., 1, dissenting opinion of Ch. j. White. 
 
 Virtue v. Creamery Package Mfg. Co. and ano., 227 U. S.. 6. 
 
 Blount Manufacturing Co. v. Yale & Towne Manufacturing Co., 166 Fed. Rep., 555. 
 
 Waltham Watch Co. v. Keene, 202 Fed. Rep.. 225. 
 
 U. S. v. New Departure Manufacturing Co., 204 Fed. Rep., 107, 114. 
 
 International Harvester Co. v. Missouri. 234 U. S., 199, 209. 
 
 U. S. v. International Harvester Co., 214 Fed. Rep., 987. 
 
 Broomer v. McQuenan, 14 How. (U. S.), 539, 548. 
 
 Patterson v. Kentucky, 97 U. S., 501. 
 
 Webber v. Virginia, 103 U. S., 344, 347. 
 
 National Harrow Co. v. Hench, 83 Fed. Rep.. 36. 
 
 National Harrow Co. v. Hench, 84 Fed. Rep., 226. 
 
 National Harrow Co. v. Hench, 76 Fed. Rep., 667, 669. 
 
 14
 
 Court of General Sessions in a proceeding by The People 
 directed against the so-called "Theatrical Trust," for vio- 
 lating our State Anti-Trust Law ; and in a very complete and 
 thorough opinion* Judge Rosalsky disposed of the con- 
 tention by holding that plays and dramas were not, under 
 our State statute, articles or commodities of common use, 
 and that, however oppressive, the acts of the alleged com- 
 bination did not come within the definition of our law, and 
 that, therefore, the defendants had not violated the statute. 
 
 This was followed by the decision of Mr. Justice Pendle- 
 ton, which was affirmed by our Appellate Division, in an 
 action against Mr. Hammerstein by the Directors of the 
 Metropolitan Opera House, t under a contract he had 
 made with them, in which he asserted that the acts of the 
 managers of the Metropolitan Opera House were a viola- 
 tion of the Federal Anti-Trust Law, a claim which Mr. Jus- 
 tice Pendleton denied, saying, with respect to the opera, that 
 although the troupe would move from one state to another, 
 carrying scenery and stage appurtenances, that they were 
 not engaged in interstate commerce. But, whatever the 
 situation may be with respect to theatricals, or to the opera, 
 the claim made by the defendants was rejected by Judge 
 Dickinson. In his opinion he entirely ignored the claim. 
 But the contention, if at all arguable, was effectually dis- 
 posed of in the illuminating brief submitted by Mr. Edwin 
 P. Grosvenor, Assistant United States Attorney General. 
 
 In this connection we may briefly refer to a case before 
 Judge Hough, of our Federal Court in this District always 
 a reliable authority in which, in determining the relation 
 of a photo-play to the drama, it was held in Kalem Company 
 v. Harper Brothers, 222 U. S., 55, that: 
 
 "An exhibition of a series of photographs, of persons and things ar- 
 ranged on films as moving pictures, and so depicting the principal scenes 
 of an author's work as to tell the story, is a dramatization of such work, 
 and the person producing such films and offering them for sale, or exhibi- 
 tion, even if not himself exhibiting them, infringes the copyright of the 
 author.":): 
 
 *People v. Klaw, 55 Misc. Rep., p. 75. 
 t!62 A. D., 691. 
 
 JRevised Stat., Sec. 4,952, as amended by Act of March 3, 1891, Chap. 565; 26 Stat., 
 Sec., 1,106. 
 
 15
 
 The court ruled that the copyright upon the late General 
 Lou Wallace's book, "Ben Hur," was infringed by portray- 
 ing the story upon the motion picture screen. This was the 
 first case that came into the United States Supreme Court 
 upon this proposition. The court in disposing of the case 
 said:* 
 
 "It is said that pictures of scenes in a novel may be made and exhibited 
 without infringing the copyright and that they may be copyrighted them- 
 selves * * * *. Whether this concession is correct or not, in view of the 
 fact that they are photographs and a lawful dramatization of the novel, 
 we need not decide. We will assume that it is. But it does not follow that 
 the use of motion does not infringe the author's rights. The most innocent 
 objects, such as the mirror * * * *, may be used for unlawful purposes, and if, 
 as we have tried to show, moving pictures may be used for dramatizing the 
 novel, when a photograph is used in that way they are used to infringe a 
 right which the statute reserves." 
 
 What the court had reference to with respect to the mir- 
 ror illustration was its statement at Page 61 of the same 
 case. The court said : 
 
 "But if a pantomime of Ben Hur would be a dramatization of Ben 
 Hur, it would be none the less so if it was reflected by mirrors and not by 
 direct vision of the pictures, as sometimes has been done in order to produce 
 ghostly or inexplicable effects. The essence of the matter * * * * is not 
 the mechanical mechanism employed, but that we see the event, or story, 
 lived. The moving pictures are only less vivid than reflections from a mir- 
 ror. With the former as with the latter, our visual impression what we 
 see is caused by the real pantomime or reel men through the medium of 
 mechanical forces, and that the machinery is different and more complex. 
 How it would be if the illusion of men were produced from paintings instead 
 of from photographs of the real things, may be left open until the question 
 shall arise." 
 
 It may therefore seem that the question has not been 
 definitely determined as to whether a photo-play is really "a 
 commodity" or whether as such it comes under the jurisdic- 
 tion of the Federal Anti-Monopoly Law. I am, however, 
 of the opinion that whenever it will become important to 
 effectually dispose of the question, that it will be found that 
 there is no difference between the photo-play and the cellu- 
 loid record which is used upon the phonograph, or the pic- 
 ture postal-card. For, after all, what is sent in commerce 
 is a strip, or strips, of film, contained in rolls of approxi- 
 mately a thousand feet each. On these are still photographs 
 that are commercially useful when put into a projecting 
 machine and ground out to portray the story on the screen, 
 
 Page 62 (222 U. S.) 
 
 16
 
 in the same manner as the phonograph record is put upon 
 the machine for the purpose of reproducing the musical 
 sounds or matter contained on the record. 
 
 Or, perhaps, using the analogy of a book or novel. What 
 is sent in commerce is really not the author's imagination, 
 or the result of his brain work, but a number of pages 
 bound together for the purpose of commercial sale of an 
 article of commerce ; to wit, a book, and upon this proposi- 
 tion the courts have already held that a book, or set of 
 books, even though copyrighted, may be the subject of a 
 monopoly, or combination, in restraint of trade, and that 
 it is no answer to the prosecution under the Anti-Monopoly 
 Law to say that books are copyrighted.* 
 
 Much of what here has been said is important only as giv- 
 ing a brief historical review of the industry. It relates 
 largely to the patent phases of the situation and the rights 
 asserted under the patents. We will refer now to another 
 situation. 
 
 RESTRICTION OF USE OF FILM ILLEGAL. 
 
 There is now pending and undetermined in the Supreme 
 Court of the United States an action entitled "Motion Pic- 
 ture Patents Company, petitioner, v. The Universal Film 
 Manufacturing Company, and others, defendants," for a 
 review of a decision of the United States Circuit Court of 
 Appeals for the Second Circuit, reported in 235 Fed. Rep., 
 p. 398, decided June 15, 1916, which affirmed the decision of 
 Judge Hough in the same case, dismissing a bill in equity 
 filed by the Patents Company, who had claimed that there 
 was an infringement of the patent on a part of the project- 
 ing machine in using thereon motion picture film other than 
 that designated by the patentee. 
 
 The Patents Company, in taking over a patent known 
 as the Latham Loop Patent, had agreed that any projecting 
 machine containing the Loop Patent was to be sold under an 
 agreement that the purchaser of the machine would only use 
 it to show picture film designated as Reissue Patent No. 
 
 *See Straus v. American Publishers Association 231 U. S., 222, reversing the same 
 case in our Court of Appeals, 193 N. Y., 496. 
 
 17
 
 12,192; that is, the Edison Film Patent. The petitioner 
 asserted that the owner of the machine had exhibited on same 
 film other than that designated by the Patents Company. 
 This condition was held to be violative of the Federal Anti- 
 Trust Statute and therefore unenforcible, the court refus- 
 ing to follow the opinion in the so-called "Mimeograph 
 Case" of Dick v. Henry, 224 U. S., 1, and asserting that 
 under the doctrine of Bauer v. O'Donnell, 229 U. S., 1 (The 
 Sanatogen Case), the manufacturer of the machine could 
 not control the use of the machine after a sale there- 
 of, any more than the owner of a patented article 
 could fix the price thereon after he had licensed the manu- 
 facturer thereof to make and sell it and put the article into 
 commerce.* 
 
 In the original opinion of the Circuit Court of Appeals, 
 Mr. Justice Augustus M. Hand discussed the decision re- 
 lating to the phonograph and Victor Talking Machinef 
 which is now upon appeal to the United States Supreme 
 Court. 
 
 If the Supreme Court of the United States should sus- 
 tain the decision of our Circuit Court of Appeals, it will 
 be the settled law that owners of patents upon parts of the 
 projecting machine cannot designate what film may or may 
 not be used upon the projecting machine, and that the pur- 
 chaser thereof, having bought and paid for the machine, 
 may use upon it such film as he may see fit to use. 
 
 Apropos of the patent phase of the question, a point 
 was argued on behalf of the United States in the Govern- 
 ment suit, to the effect that while the negative of the film 
 may or may not be subject to a patent, the positive print, 
 that which is commercially used, is not covered by the patent. 
 The argument to support this was based on the claims made 
 in the patent. Judge Wallace, in his opinion already re- 
 ferred to, said: 
 
 "The patent in suit pertains merely to that branch of the art which 
 consists of the production of suitable negatives." 
 
 See the decision of the Circuit Court of Appeals in the same case on a petition 
 for rehearing, which was decided on August 4, 1916, and reported in 235 Fed. Rep., 
 p. 401. 
 
 tSee Victor Talking Machine Company v. Strauss, 230 Fed. Rep., 449. 
 
 18
 
 And later, in the same opinion, he said: 
 
 "He (Mr. Edison) was not the first inventor of apparatus capable of 
 producing suitable negatives." 
 
 At no place in the patent claims, said the counsel for the 
 Government, is there any reference to the positive print. 
 The description is only of the negative film. Hence 
 he argued that there was a similarity between the production 
 of the positive films from the print made from the negative 
 and the use of the so-called "arrot" dredger used in the man- 
 ufacture of enamel-ware, which was the subject of investi- 
 gation by the United States Supreme Court in the Bathtub 
 Trust suit. Concerning this Mr. Justice Dickinson said in 
 his opinion: 
 
 "As a conclusion to the whole discussion, we deem the bath-tub case to be 
 decisive of the principle contended for by the United States * * * *. We 
 would feel constrained, on the authority of this case alone to find that the 
 agreements and acts of the defendants in the present case went far beyond 
 what was necessary to protect the use of the patents. * * *" 
 
 In this discussion of monopoly, patents and copyright, we 
 are in a legal way establishing our industry, or in other 
 words, showing that it is entitled to be treated equally with 
 other industries. Through these decisions we know now 
 that the industry has the same rights as other industries, and 
 despite its more or less vagabondish beginnings, money in- 
 vested in it, time devoted to it and the persons engaged in 
 it, are entitled to the same protection as those engaged in 
 other industries. 
 
 PREJUDICE AGAINST MOTION PICTURE 
 EXHIBITIONS. 
 
 For, and this is a point that in discussing the new law, 
 a law for this new industry, we are very apt to forget : That 
 the moving picture industry does not come into court in the 
 beginning entirely free of that historical prejudice that all 
 Anglo-Saxon law has had for generations regarding any- 
 thing pertaining to the theatre. 
 
 The Anglo-Saxon law was derived from the Roman law, 
 and the Romans, under the Greek influence, where the actor 
 was a person of distinction, regarded the theatre as their 
 noblest institution. Yet the Anglo-Saxons wrote into their 
 statutes this provision, passed by the House of Parliament 
 in 1597: 
 
 19
 
 "All persons that be, or offer themselves to be proctors, patent gatherers, 
 or collectors for gaols, prisons, or hospitals, or fencers, bearwards, common 
 players of interludes, or minstrels wandering abroad (other than players 
 of interludes belonging to any baron of this realm, or any other person of 
 greater degree, to be authorized to play under the hand and seal of such 
 baron or personage), all jugglers, tinkers, pedlars and petty chapmen wan- 
 dering abroad, etc., shall be adjudged and deemed rogues, vagabonds and 
 sturdy beggars and punished as such." 
 
 Strange as it may seem, that law is still on the statute 
 books of England, and while it is no longer operative, the 
 feeling that the actor's was not a regular business did not 
 disappear in England until a great innovation was under- 
 taken, not through the passing of any statute or act of Par- 
 liament, but through the knighting of an actor, Henry 
 Irving. 
 
 It is prejudice such as this against the actor showing it- 
 self in everything connected with the theatre, that goes 
 sometimes to confuse those who have not fully grasped the 
 fundamental principles of law, and who have not felt to the 
 full what Walter Pater calls "the aesthetic charm of clear 
 thought." It was nothing more than prejudice that for 
 years blocked the Workmen's Compensation Act; it was 
 prejudice that declared you could not regulate the hours of 
 labor, and recently we have seen a "revolutionary" consti- 
 tutional amendment adopted, after a hundred years acces- 
 sion to the Federalist prejudice against popular election of 
 Senators, on the ground that the common people should not 
 be trusted too much with a voice in their government. 
 
 Our new industry is now properly open to all who have 
 the money to invest, with this difference : That here again 
 the old-time prejudice is found, born of the primitive condi- 
 tions and the religious prejudice that attended the first years 
 and the incubating period of the modern theatre in England. 
 As in every industry where the profits are apparently large 
 and the opportunity for unfair dealing is lucrative, the un- 
 scrupulous endeavored to assume unto themselves the profits 
 which justly belonged to another. This brings us to a con- 
 sideration of the subject of unfair competition. 
 
 UNFAIR COMPETITION. 
 
 Under this may be included the violation of an author's 
 or producer's copyright, to which some reference has al- 
 
 20
 
 ready been made, or the simulating or pirating of a popular 
 photo-play, or scenario, to which I have briefly alluded. 
 
 In this connection I call attention to the fact that mere 
 similarity of title, or of theme, or theory, is not of itself 
 violative of the author's or producer's rights, even though 
 he be first in the field. 
 
 As in the matter of trade names, the rule is that the use 
 of similar trade names cannot be enjoined, unless fanciful 
 and original. Thus, if a man were to use the name "Ameri- 
 can Girl," or "Merry Christmas," or "Bohemian," to desig- 
 nate the name of his company, or motion picture corpora- 
 tion, these names, not being fanciful or original, could not be 
 subject to be restrained.* 
 
 It has been held to be unfair dealing for a photo- 
 play company to grant to another exclusive right to produce 
 moving picture films and thereafter to grant a right to an- 
 other to exhibit them.f 
 
 When the author has given a contract to another for the 
 exclusive right to produce a play, it is a violation of his con- 
 tract to permit another to produce his play by moving pic- 
 tures, and this is true although the contracting parties did 
 not contemplate a moving picture production of the play, 
 because then impossible. J 
 
 In this connection a claim was made that since the con- 
 tract for the production of the drama on the stage with 
 living actors, provided it was to be shown only in first-class 
 theatres and in a first-class manner, the parties did not con- 
 template that the author reserve to himself the right to pro- 
 duce it in a second-class theatre or in a second-class manner. 
 In the light of the large production of motion picture plays, 
 such as "Intolerance," "Birth of a Nation," "Civilization," 
 "A Daughter of the Gods," etc., in the first-class theatres in 
 New York, such a reservation would not be regarded but 
 as humorous. 
 
 *Wolff Brothers Company v. Hamilton Shoe Company, 165 Fed. Rep., 413; Writ 
 of Certiorari denied, 241 U. S., 215. 
 
 Florence Manufacturing Company v. Dowd, 178 Fed. Rep., 73; reversing S. C., 
 171 Fed. Rep., 122. 
 
 American Brewing Company v. Bienville Brewery, 153 Fed. Rep., 615. 
 tLasky Feature Play Company v. Celebrated Players Film Company, 214 Fed. 
 Rep., 861. 
 
 tSee Frohman v. Fitch, 164 A. D., 231. 
 
 21
 
 TRADE MARKS. 
 
 Each country of course has its own trade mark law and 
 they differ materially from each other. Frequently the trade 
 mark or name is a valuable asset. For this reason they are 
 frequently registered as such. In the South American 
 countries there has been much confusion as to trade names 
 and trade marks of film companies, for it seems there that 
 the first user gets the right, no matter how extensively and 
 favorably the name may be known in other countries. An 
 illustration of South American law on the subject of registra- 
 tion is that of Ecuador. The office of registration is known 
 as the Ministrode Asciendo Quito. The registration is for 
 twenty years, but it may be renewed for periods of fifteen 
 years. There are stipulated fees for original registration 
 and renewal. The right to the trade mark is vested in the 
 individual first registering it and no legal proceedings can be 
 instituted before registration of the trade mark to prevent 
 actual or intended infringement. This is substantially the 
 law in Argentine, Brazil, Paraguay, Uruguay and Peru. 
 
 COPYRIGHT LAW. 
 
 The Copyright Law finds its origin in the Federal Con- 
 stitution, which provides as follows : 
 
 "Art 1, sec. 8, subd. 8. 
 
 "To promote the Progress of Science and Useful Arts, by securing for 
 limited times to Authors and Inventors the exclusive right to their respec- 
 tive writings and discoveries." 
 
 Congress, in pursuance of this power conferred by the 
 Constitution, has devised the copyright laws. Therefore, 
 most of the cases to which we will refer are those contain- 
 ing the expression of the Federal Court upon the subject; 
 but there will, of course, be found authorities in the state 
 courts covering the copyright phase, which pronouncements 
 of state courts are not based upon or under the copyright 
 law, but because of the copyright law. 
 
 Of course, copyright of the motion picture was not pro- 
 vided for by the original copyright statute, and it was not 
 until the year 1909 that the Federal courts recognized that 
 on account of the growth of this industry that copyright 
 
 22
 
 laws were necessary. Accordingly, the copyright statute was 
 amended to include motion pictures.* 
 
 It was the amendment of August 24, 1912, that first gave 
 motion picture plays a place in the Copyright Law, but be- 
 fore that time, by a decision in Edison v. Lubin, 122 Fed. 
 Rep., p. 240, it was adjudicated that motion pictures were 
 copyrightable under the law as photographs. 
 
 In construing the word "author," under section 2 of the 
 Copyright Law, the Federal Court, in Gaumont v. Hatch, 
 208 Fed. Rep., p. 378, held that the person or company who 
 produced a photo-play was an author within the meaning 
 of the copyright statute. 
 
 I have already called attention to the fact that the United 
 States Supreme Court has held that for the purpose of the 
 Copyright Law motion picture photo-plays are considered 
 dramas. t 
 
 The title of a motion picture play as such cannot be 
 copyrighted. There is abundant authority which sustains 
 this proposition with respect to motion picture plays, or 
 scenarios. 
 
 What may be copyrighted is the story, or as it is called 
 in the trade, the scenario, and this copyright protects the 
 story the same as a copyright upon a play or a book, but it 
 does not protect an author from attack, or give him a mon- 
 opoly upon a theme or a subject which is not original to the 
 play or story itself. For instance, in a case that was before 
 the courts, where the play or story was written around the 
 subject of the theory of "destiny;" the mere fact that an 
 author conceived the idea of writing a play concerning des- 
 tiny did not give him the exclusive right, because he had a 
 copyright, over another person who later also conceived the 
 idea of a story based upon destiny. The reason for this, as 
 
 *See Copyright Act of March 4, 1909, as amended by the Act of August 24, 1912, 
 Section 4. 
 
 tHarper Brothers v. Kalem Company, 222 U. S., p. 55. 
 
 jSelig Polyscope Co. v. Unicorn Film Service Corp.. affecting the title of "The 
 Rosary"; opinion by Mr. Justice Cohalan, N. Y. Sup. Ct.. reported in Law Journal 
 of September 16, 1916, at p. 1,856. 
 
 Haroer v. Raynolds, 67 Fed. Rep., 004, 905, affecting the right to the story 
 "Trilby." 
 
 23
 
 stated by the court, is that the theme, or theory, was outside 
 of the play.* 
 
 Similarly, another case cited by Judge Mayer, held that 
 the owner of a copyrighted play, based upon the story of 
 hypnotic influence, was not entitled to deprive others from 
 using a like situation.! 
 
 Judge Mayer, citing authorities to sustain his position, 
 said: 
 
 "Since both stories devolved their idea from a common source, the com- 
 plainant had no case." 
 
 A motion picture play has been held to be a "writing" 
 within the language of the Federal Constitution. In Edison 
 v. Lubin, 122 Fed. Rep., p. 240, the Court, following the 
 decision in a case affecting a copyrighted photograph of 
 Oscar Wilde which Sarony, the photographer, had pro- 
 duced:); so held, and in the case of the American Music 
 Company v. Edison Manufacturing Company, 137 Fed. 
 Rep., 265, a motion picture was held to be a writing. The 
 Court said: 
 
 "It is a writing within the constitutional sense and the proper subject 
 of a copyright." 
 
 The common law rights of the producer of motion pic- 
 ture plays, not copyrighted, was before our Court in Uni- 
 versal Film Mfg. Company v. Copperman. The opinion 
 will be found in full at 218 Fed. Rep., 577. It affirmed the 
 decision of Judge Hough in the lower court, who said : 
 
 "There was an analogy between the production of a motion picture 
 play and a dramatic performance, and that it made no difference if the play 
 was mechanically produced." 
 
 Quoting Judge Hough, the Court said: 
 
 "If there is no film, there is no play, and unless the film is projected 
 upon a screen, the film is worthless. The value of the film depends entirely 
 upon the popularity of the play." 
 
 The Circuit Court of Appeals in the same case said that 
 the producer of a motion picture play had the common law 
 rights of property in the intellectual conception of the sce- 
 
 * See opinion of U. S. District Court, Judge Mayer, in Vernon v. Shubert. 220 Fed. 
 Rep., 694. 
 
 tSee Bachman v. Belasco, 224 Fed. Rep., p. 815. 
 
 JBorrow-Giles Lithographing Company v. Sarony, 111 U. S., p. 53. 
 
 24
 
 nario of the play expressed in words, and the intellectual con- 
 ception of the photo-play expressed in actions. Continuing, 
 the Court said: 
 
 "When the producer sold a positive film, which was the only means 
 of performing the play, it conferred the performing rights upon the pur- 
 chaser and his assign. That no one by virtue of that sale would have ac- 
 quired the right to re-enact the play and take a negative of it, or make, if 
 that could be done, a new negative from the positive film." 
 
 The Court later said: 
 
 "That would be inconsistent with the producer's common law property 
 in the photo-play, and that the mere performing right which it had con- 
 ferred upon the owner of the film, he exercises a performing right by one 
 or by many purchasers of positive films would be entirely consistent with the 
 producer's common law property in the play itself." 
 
 A review of this case was denied by the Supreme Court 
 on December 14, 1914. 
 
 A corporation may be an author of a motion picture 
 play, and within the copyright act, section 62, the word 
 "author" is sufficiently comprehensive to include a corpora- 
 tion as well as a natural person.* 
 
 WHAT MAY BE COPYRIGHTED UNDER THE 
 COPYRIGHT ACT. 
 
 1 A Scenario. 
 
 2 The Picture. 
 
 In practice it is very common for the producer to first 
 copyright the scenario, or story, of the plot, and then after 
 production send the reels of pictures themselves to the copy- 
 right office for registry. 
 
 Here we might properly consider the rights of foreign 
 authors under our copyright law, if time permitted, and the 
 rights of the owners of dramatic plays, by license or agree- 
 ment from the author as to the exhibition thereof of photo- 
 plays. The law on this subject is not entirely clear; the con- 
 flict of decision cannot be duly reconciled and time will 
 not permit me to do more than make a passing reference 
 that there is such a situation. 
 
 "See Gaumont Company v. Hatch, 208 Fed. Rep., p. 381. 
 
 25
 
 CENSORSHIP. 
 
 There is a movement for a National Censor, and in 
 some States a State Censor has already been provided for. 
 There is no more need for a censorship for a film than there 
 is for the printing press, and if you are going to censor the 
 one, you must certainly censor the other; and if ever the 
 time when a censorship of either the press or the film should 
 be an accepted and universal fact in this country, then the 
 principles of democratic government are no longer part of 
 our abiding faith. There has never been a censor of the 
 theatre in this country, so that in those States in which the 
 movement against free expression has succeeded in putting 
 on the statute books a censor for the motion pictures, an 
 innovation has been undertaken, which would be very splen- 
 did if it were not for the fact that in a very short time even 
 these States will find that there is nothing for the censor to 
 do nothing that he would dare do that the police power 
 has not always been ready and able to do. 
 
 In England there has always been more or less censor- 
 ship, although during the period of the most active censor- 
 ship, the period of The Restoration, the plays were more im- 
 moral than at any other time. Coleman, the dramatist, 
 acted as censor, and his plays were as immoral as the worst 
 plays of his day. 
 
 When the photo-play came into existence, there was 
 naturally a rush to include under the censorship any new 
 form of entertainment or drama. As Messrs. Fowell and 
 Palmer have pointed out in their interesting monograph on 
 English censorship : "There wa v s nothing that stirred the 
 reform element so much as the thought that the English 
 populace were enjoying themselves," and the fact that the 
 populace had taken the cinematograph to its bosom, without 
 reserve and with enthusiasm, was sufficient reason to the 
 reform element to believe that there was something the 
 matter with the cinematograph. 
 
 The first attack was made on the ground that the Sunday 
 law was being violated, and this was followed by a charge 
 
 26
 
 that inasmuch as these pictures were exhibited in the dark, 
 darkness was an evil, as it tended to encourage sexual im- 
 morality. In fact, this was the situation in our own city 
 and State, for in December, 1908, at a public hearing, 
 (Mayor McClellan's report of which will be found in a 
 volume in the Mayor's office, entitled "Hearing on Moving 
 Picture Shows, December 23, 1908,") eminent clergymen, 
 educators and public spirited citizens of national repute 
 argued for the abolition of the motion picture theatre on 
 practically the same grounds. Some of these men are now 
 the strongest advocates of the motion picture theatre as a 
 neighborhood center for the dissemination of education, 
 learning and culture. 
 
 The lecturer appeared before the Mayor at that hear- 
 ing, and some of the assertions I then made as to the future 
 of this industry were regarded as extremely humorous; in 
 fact, I stood almost alone except for the moral support of 
 Commodore J. Stuart Blackton, of the Vitagraph Com- 
 pany, and we were regarded as being iconoclasts. As a re- 
 sult of this hearing, the Mayor cancelled the license of every 
 motion picture theatre in the City of New York, numbering 
 about 600, but his action was declared by the court to be 
 arbitrary, capricious and whimsical, and his act was enjoined 
 and restrained.* 
 
 After the Sunday objection, the attack in England was 
 on the films themselves, and several cases were brought to 
 court. A feature was made of the fact that boy offenders 
 were taught to steal by seeing feats of great burglary on the 
 cinematograph. This led to a hue and cry for a censor- 
 ship, leading one cynical observer to ask the question where 
 the other burglars of the past few thousand years had 
 learned their business before the invention of the cinemato- 
 graph. Finally a censor was appointed, Mr. G. A. Redford, 
 and the spirit with which he undertook the job may be 
 judged from the lists of things which, on his inauguration, 
 he promised to keep off the films : 
 
 "No cremations. 
 
 See Wm. Fox v. McClellan, 62 Misc., 100. 
 
 27
 
 "No final, tear-compelling scenes at funerals, such as lowering the body 
 into the grave, and so on. 
 
 "No scenes representing murder, sudden death, or suicide. 
 
 "No 'faked' representations of disasters by sea or land or air. 
 
 "No mixed bathing. No 'compromising situations.' No cock fights, no 
 dog fights, and nothing where unnecessary cruelty is brought in, either to 
 man or beast. 
 
 "All Biblical scenes to be watched very carefully particularly anything 
 from the New Testament. 
 
 "No Sovereigns, Judges, Ministers, or such high officials of the land to 
 be treated in an unbecoming or ridiculous manner, and no living individual 
 to be lampooned." 
 
 Naturally, in France, where the arts are understood and 
 appreciated, one expects to find sanity in the discussion 
 of this matter of censorship. The only restraint upon a per- 
 formance at a theatre is exercised by the police authorities, 
 who may prosecute a manager if it is considered there is 
 anything in the play that tends to endanger public order or 
 is inclined to be prejudicial to public morals. 
 
 In a little book by E. Kress, entitled "Pour Ouvrir un 
 Cinema," the legal formalities are explained, and there we 
 learn that after a very acrimonious debate in the Chamber 
 of Deputies, between M. Breton and M. G. Berry, it was 
 decided that the motion picture would not be classed with 
 theatrical exhibitions, and that their entire regulation came 
 under the head of the Department of Police. In other 
 words, instead of the motion picture, as it would have under 
 the old law, coming under the Department of the Minister 
 of the Interior, it was regarded as a "spectacle of curiosity," 
 and as such simply regulated by the police code under the 
 arret of Messidor, in the year eight of the Republic and by 
 the Municipal Law of Paris in the year 1884, Article 97. 
 
 A state censorship existed in France up to 1908, but the 
 only censorship that exists now is that of the police authori- 
 ties, who may prosecute a manager if they consider that the 
 photo-play may endanger public order or if prejudicial to 
 public morals. And, incidentally, I should like to call your 
 attention to just what is happening, i. e., that as state censor- 
 ship of the theatre has lessened in popularity in Europe, and 
 has gradually tended to abolition, the idea seems to have 
 grown up in America that it is something this free govern- 
 ment should take up. 
 
 28
 
 LAWS OF EUROPE. 
 
 On account of the war it has not been easy to collect 
 facts as to the laws in Europe, but I give herewith a brief 
 synopsis of the attitude toward censorship of many Euro- 
 pean countries up to that time. For the major part of the 
 summary I am indebted to the report of the Joint Com- 
 mittee of the House of Lords and the House of Commons, 
 appointed in 1909 to investigate for Parliament the ques- 
 tion of censorship : 
 
 Belgium: There is no state censorship of plays. The 
 municipal authorities are responsible for the preservation 
 of order in a theatre, and have the right to prevent a per- 
 formance of any play which, in their opinion, might be likely 
 to arouse public feeling. 
 
 Denmark: A license from the Ministry of Justice is 
 required for the giving of theatrical performances. The 
 license is granted on condition that the plays produced are 
 first submitted to a censor, appointed by the Minister of 
 Justice, from whose decision there is an appeal to the Min- 
 istry. In Copenhagen it is also the censor's duty to super- 
 vise performances at music halls, etc., and no song or other 
 kind of entertainment, including cinematograph representa- 
 tions, may be given unless the censor has approved of it 
 before productions. In the Provinces the duties of the 
 censor, with regard to the control of the music halls, etc., 
 are discharged by the police. 
 
 Holland: The control of theatrical and other perform- 
 ances is vested in the Burgomaster of every town by Article 
 188 of the Municipal Law of 1851. His duty is to watch 
 against anything which is in conflict with public order and 
 decency. 
 
 Italy: The control of theatrical and other public per- 
 formances is regulated by a Statute passed in the year 1889. 
 No public performance of any kind may be given unless the 
 leave of the Public Security Authorities have been obtained. 
 This department is responsible for the safety, etc., of the 
 public in all places of entertainment. In addition to this, no 
 
 29
 
 opera or stage play of any kind may be produced without 
 the approval first obtained of the Prefect of the Province 
 in which it is to be performed. The Prefect may withhold 
 his consent to any performance upon the grounds of morality 
 or public order. There is an appeal from his decision to 
 the Minister of the Interior. 
 
 Portugal: The censorship of all public performances 
 is vested in the Civil Governor who, in the outlying town- 
 ships of his district, delegates his powers to his subordinates. 
 In Lisbon the general powers of the Civil Governor are dele- 
 gated to the Civil Police, to a branch of which body, viz., 
 the Administrative Police, belong the censorship of theatri- 
 cal performances. The head of that body is practically the 
 censor of stage plays. 
 
 Spain: The representatives of theatrical companies 
 must supply the Civil Governor, or the Mayor, in towns 
 other than provisional capitols, with two copies of every 
 dramatic work which is to be preformed for the first time. 
 Such copies must be signed by the authors or by representa- 
 tives of the company, and must be in the hands of the au- 
 thorities on the same day, and at the same hour, on which 
 the play is to be performed. When, in the opinion of the 
 authorities, the performance of a dramatic work involves 
 committing any offense included in the Penal Code, it is at 
 once denounced to a competent court, to which are sent the 
 copies of the play which have been deposited with the Civil 
 Governor. The performance of the play is at once sus- 
 pended until the decision of the Court of Justice has been 
 given. 
 
 Sweden: There is no longer any State Censorship of 
 plays, but anyone who wishes to give a dramatic, musical or 
 other public performance, is obliged to notify the local police 
 of his intention. No special permission, however, from the 
 police authorities is usually necessary for giving dramatic 
 or musical performances. 
 
 Saxony: A distinction is made between the Royal 
 Theatre and the theatres under private control. In the 
 former a censorship is exercised over stage plays by an 
 
 30
 
 official called the Dramaturg; in the latter the control is in 
 the hands of the police. The police censorship is conferred 
 upon a high judicial officer, whose duty it is to examine every 
 new play with regard to its moral, political or religious ten- 
 dency. 
 
 Duchy of Baden: The regulations of theatres and the 
 control over theatrical and other public performances, ex- 
 cept in the Grand Ducal Theatre and the National Theatre 
 at Mannheim, which are controlled by an official censor, 
 are vested in the police, who have power to suppress any 
 performance calculated to give offense or produce disorder. 
 
 Kingdom of Bavaria: Since February, 1808, an advi- 
 sory Censorship Council has been established at Munich in 
 connection with the Directorate of Police. This Council 
 consists of five members, namely, an author, an artist, a lin- 
 guist, a schoolmaster and a physician. The Council gives 
 notice to the police, either verbally or in writing, when it is 
 in doubt as to the desirability of allowing the production of 
 any dramatic work. This system is purely local at present. 
 
 In Russia there is no censorship from the point of view 
 of morality. The regulation of the theatre and the cine- 
 matograph is in most places under the control of what is 
 known as the Upravlenve po dyelam pechati (Regulator 
 of Public Printing) and this gentleman is also the regu- 
 lator of the press, his business being to see that no political 
 or religious matters are discussed on the stage or shown on 
 the screen. As Dr. Rosenthal, a Russian authority, recently 
 remarked: "Russia is not interested in the question of vice; 
 the people are not yet educated enough to know much about 
 vice ; when they have achieved a higher state of civilization, 
 then it will be necessary to regulate their morals." 
 
 In Austria, immediately after the reactionary period of 
 1848, censorship was decreed which permitted the censor to 
 forbid whatever he disliked, whether it was particular 
 words, scenes or the whole play. As the result of the prohi- 
 bition of censors, noteworthy plays, as Max Halbe's Jugend 
 and Gerhard Hauptmann's Weavers and Ernest von Wil- 
 
 31
 
 denbruch's Herlnrich-drama, were prohibited, and a strenu- 
 ous movement arose in Austria against the censorship, but 
 made practically little headway. 
 
 Interesting, because of the unusual progressive quality 
 of all the New Zealand legislation, and doubly interesting 
 because it is the only law that I have been able to obtain 
 from Australia, is the New Zealand Law, which has per- 
 haps an additional interest in that we find that it was passed 
 on the seventh day of August, and that the only other two 
 laws passed by the General Assembly in New Zealand on 
 that same day was a law that related to the conduct and the 
 part being played by New Zealand in the great European 
 war, and a law for encouraging the fruit growing industry 
 in New Zealand. The law is interesting in full on account 
 of the terseness and the clarity of the language. It is en- 
 titled: "An Act to Provide for the Censoring of Cinemato- 
 graph Films." 
 
 BE IT ENACTED by the General Assembly of New Zealand, in Par- 
 liament assembled, and by the authority of the same, as follows: 
 
 1. This Act may be cited as the Cinematograph-film Censorship Act, 
 1916. 
 
 2. On and after the first day of October, 1916, it shall not be lawful to 
 exhibit any cinematograph-film unless it has been approved in the manner 
 hereinafter provided. 
 
 3. (1) There shall be appointed from time to time, by the Governor, 
 such fit persons as the Governor deems necessary as censors of cinemato- 
 graph-films, who shall hold office during the Governor's pleasure. 
 
 (2) The provisions of the Public Service Act, 1912, shall not apply 
 to persons so appointed. 
 
 4. (1) It shall be the duty of every person so appointed to examine every 
 cinematograph-film submitted to him for approval. 
 
 (2) Such approval shall be signified by a certificate in the pre- 
 scribed form. 
 
 (3) Such approval shall not be given in the case of any film which, 
 in the opinion of the censor, depicts any matter that is against public order 
 and decency, or the exhibition of which for any other reason is, in the 
 opinion of the censor, undesirable in the public interest. 
 
 (4) Such approval may be given generally, or may be given subject 
 to a condition that the film shall be exhibited only to a specified class or 
 classes of persons. 
 
 (5) There shall be a right of appeal from every decision of a censor 
 under this Act to such person or persons, and in such manner and subject 
 to such conditions, as may be prescribed by regulations under this Act. 
 
 5. A film to which any matter has been added after it has been approved 
 by the censor shall be again submitted for approval, and until it has been 
 been approved again, shall be deemed not to have been approved. 
 
 32
 
 6. There shall be payable for every film submitted for approval under 
 this Act such fees as are prescribed. 
 
 7. (1) Every person who exhibits any film in contravention of this Act 
 is liable to a fine not exceeding fifty pounds, and the film may be ordered by 
 the convicting board to be forfeited to the Crown. 
 
 (2) Any film so forfeited shall be dealt with in such manner as the 
 Minister of Internal Affairs directs. 
 
 8. The Governor may, from time to time, by order in Council, make 
 such regulations as he deems necessary to give effect to this Act. 
 
 In the latest edition of "Recopil acion de Leyes V sales 
 de la Republica Argentina I have been unable to find any 
 general law dealing with the moving picture industry, or 
 the question of censorship. In the matter of South Ameri- 
 can Law, the latest reports that we have in this country, 
 both from Chile and from Venezuela, are from 1914. 
 Neither the Recopilacion de Leyes y decretos of Venezuela 
 or Chile, up to 1914, show that there was any legislation put 
 upon the books. 
 
 The Civil Code of Japan (the latest copy of which I 
 have been able to find in this country is for 1909) makes 
 naturally no mention of the cinematograph. We know his- 
 torically, however, that up to the latter half of this century 
 there was an even deeper prejudice in Japan against the 
 theatre than there was in England, actors being regarded as 
 outcasts and theatres as places in which no gentleman should 
 be seen, and only as places that were fit for the lower classes. 
 No Samurai ever entered the theatre up to the latter half of 
 the last century, and the broadening theatre movement did 
 not receive official sanction until 1879, when President 
 Grant, on his visit to Japan, visited one of the leading 
 theatres of Tokio. Naturally we can understand that there 
 would be little desire to censor theatres when the upper 
 class did not even go near them. 
 
 When we come to the laws of this country, it is inter- 
 esting to note that only eight of the States have placed on 
 the statute books a law that would in any way permit the 
 film to be censored. In the State of Pennsylvania a Board 
 of Censors has been appointed, the Board consisting of three 
 residents and citizens of Pennsylvania, two males and one 
 female, well qualified in education and experience to act 
 
 33
 
 as censors under this Act. One male member of the Board 
 shall be Chairman, the female member shall be Vice-chair- 
 man, and one member (male) shall be secretary. They 
 shall be appointed by the Governor for terms of three years. 
 Those first appointed under this Act shall be appointed for 
 three years, two years and one year, respectively, their 
 respective tertns to be designated by the Governor. 
 
 Section 6, of the Pennsylvania Act, declares that "The 
 Board shall examine or supervise the examination of all 
 films, reels or views to be exhibited or used in Pennsylvania, 
 and shall disapprove such as are sacriligious, obscene, in- 
 decent or immoral, and such as tend, in the judgment of the 
 Board, to debase or corrupt morals. This section shall not 
 apply to announcement or advertising slides." 
 
 In Kansas, Laws of 1913, Chapter 294, Page 504, the 
 law states that "It shall be unlawful for any person, firm or 
 corporation to exhibit or use any moving picture film, or 
 reel, unless the said film, or reel, shall have been examined 
 and approved." 
 
 It also states, Section 2, that it shall be his duty "to 
 examine all moving picture films, or reels, intended for 
 exhibition in this State, and approve such as he shall find 
 to be moral and instructive, and to withhold approval from 
 such films, or reels, as tend to debase or corrupt morals." 
 This statute was passed upon by the United States Supreme 
 Court and declared to be constitutional.* 
 
 In Ohio it is declared to be the duty of the Board of 
 Censors "to examine and censor all motion picture films to 
 be publicly exhibited in the State of Ohio * * *. Only such 
 films as are, in the judgment and discretion of the Board of 
 Censors, a certificate showing approval or rejection of such 
 film shall be issued to the party submitting it. When a 
 film is passed and approved by the Board of Censors, such 
 film shall be given an approval number, which shall be 
 shown on the certificate issued by the said Board of Censors 
 to be the party submitting the film." This statute has also 
 
 *See Mutual Film Corporation v. Kansas, 236 U. S., 248. 
 
 34
 
 been before the United States Supreme Court for construc- 
 tion on a claim of violation of constitutional rights, but the 
 statute was held to be constitutional.* 
 
 In the other States in which there are laws, such as 
 Michigan, Florida, Louisiana, Alabama, Massachusetts, 
 Maine and Connecticut, the law pertains only to the sanitary 
 and fire regulations, and looks to no more than the building 
 operations so as to insure the safety of the patrons. In 
 Louisiana, however, in 1914, a law was passed which per- 
 mitted "any city, town or village, from and after the pro- 
 mulgation of this Act, through its proper legislative branch 
 * * * * to adopt any ordinance or law for the regula- 
 tion, by censorship, of moving picture theatres and shows, 
 nickelodians, theatoriums, penny, five and ten cent arcades, 
 and all places of amusement showing, operating or display- 
 ing motion pictures for which an admission is charged or 
 has been made." 
 
 I made reference to two opinions in the United States 
 Supreme Court holding that censorship laws in Kansas and 
 Ohio were declared to be constitutional. I do not wish, 
 however, to be understood as admitting the soundness of 
 these decisions. On the contrary, I claim and shall present- 
 ly attempt to demonstrate that they are clearly wrong in 
 principle. 
 
 There has been introduced in Congress a bill by Mr. 
 Hughesf, creating a Federal Board of Censors of motion 
 pictures, the basis of which is the regulation of commodities 
 passing through interstate channels. One of the provisions 
 of the bill is that the censors are empowered to reject, among 
 other things, photo-plays which have a tendency to incite 
 crime. 
 
 Of course this provision is absolutely unnecessary. It is 
 fully covered by both Federal and State statutes. Assuming 
 that the picture shown is one that would incite to murder, 
 the people who are responsible would, under both State and 
 
 *See Mutual Film Corporation v. Ohio Industrial Commission, 236 U. S., 230. 
 t House of Representatives Bill 456, December 6, 1915, referred to the Committee 
 on Education. 
 
 35
 
 Federal legislation, be guilty of homicide. If guilty, would 
 you first punish them under the Federal statute by a year's 
 imprisonment provided for in the Censorship Act and then 
 execute them under the State statute for murder ? Or would 
 you first execute them for the murder, under the State stat- 
 ute, and then punish them by imprisonment under the Fed- 
 eral statute ? 
 
 Continuing this situation, let us imagine that the State 
 authorities first intervene, and after a conviction execute the 
 individual, or individuals, for homicide. An interesting 
 contest would arise as to whether the body should be turned 
 over to the family for interment, or whether it should be 
 surrendered to the Federal authorities for prosecution under 
 the censorship statute, and for imprisonment if the corpse 
 be found guilty. 
 
 Let us analyze for a moment what the legal effect of 
 censorship on photo-plays would be. The proprietor of a 
 newspaper in the United States, in the interest of public 
 welfare, desires to print a cartoon of a man or group of 
 public characters. This he may do freely, subjecting him- 
 self only to penal or civil laws of the community in which 
 the publication is made. Under a system of censorship, 
 assuming that the same proprietor of the newspaper is also 
 the owner of a film producing company, or the proprietor of 
 a motion picture theatre, if he desires to throw upon the 
 screen exactly the same cartoon as appeared in his news- 
 paper, he must first obtain the permission of the censor to 
 do so. 
 
 So, too, a man or a person interested in promulgating a 
 theory, or engaged in a propaganda that requires local ad- 
 vertising, may do so freely upon the mere payment of the 
 newspaper charges. Desiring to advertise the same matter 
 upon the screen, he must first obtain the permission of the 
 censor to do so; and non constat, it may follow that although 
 the newspaper published the printed matter, without offense 
 against the crminal laws, or even against the civil laws of the 
 community, the censor prohibits and inhibits the same mat- 
 ter from being advertised upon the screen. 
 
 36
 
 I might dilate further on the subject, but I think I have 
 done so sufficiently to establish the fact that when the last 
 word is heard, it will be that it is unconstitutional to restrict 
 or deprive an individual of the right of free expression. 
 
 To prevent free expression of thought, whether in the 
 press or on the screen, would be to create a situation similar 
 to the one which made the American Colonists rebel and led 
 Thomas Jefferson to say: "I would rather live in a country 
 where there are newspapers and no government than live in 
 a country where there is government and no newspapers." 
 
 I now come to the consideration of the decision of the 
 United States Supreme Court, reviewing the constitution- 
 ality of the statutes of Ohio and Kansas. I have said that 
 I disagree with those decisions on principle, and I assert that 
 censorship of motion pictures is absolutely and unqualifiedly 
 in defiance of the spirit, and subversive of the letter of the 
 constitution. 
 
 For aside from the question as to whether censorship is 
 violative of the Fourteenth Amendment, it is not constitu- 
 tional because there is no express provision for it in the Con- 
 stitution, unless it be found in the Commerce Clause. 
 
 It is interesting, if not refreshing, to observe that the 
 ground upon which censorship of motion pictures is urged 
 is, that under the Commerce Clause of the Federal Consti- 
 tution, power is found to regulate the shipment, sale and 
 use of motion pictures traveling in interstate commerce. 
 Because of this constitutional provision, it is assumed that the 
 censorship may be exercised. This, to my mind, is straining 
 the constitutional provision beyond all limits. 
 
 It is conceded that a censorship of the press is violative 
 of the spirit and the letter of the Constitution. It follows 
 that if there is an analogy between the screen and the press, 
 as I have indicated earlier in this lecture, despite the declara- 
 tion of the United States Supreme Court to the contrary, 
 that censorship of matter, projected or portrayed upon the 
 screen is likewise unconstitutional. 
 
 If power is to be found under the Constitution to censor 
 motion pictures because the reels are sent in the channels of 
 
 37
 
 interstate commerce, traveling from State to State, the news- 
 papers of to-day are likewise sent through the mail from 
 State to State, (both by mail and the express), so that if the 
 Commerce Clause permits the censorship of films, because 
 the reels are sent by mail or express through the States, such 
 continuous acts would, upon the same principle, permit the 
 establishment of a censorship over newspapers transmitted 
 in interstate commerce. 
 
 It is very well to say that Congress has passed laws 
 which have been declared constitutional, regulating the sale 
 and use of food, drugs, liquors and other commodities which 
 travel in interstate commerce, but Congress there was deal- 
 ing with an article, the use or abuse of which was inherently 
 dangerous to the life, health and well being of the com- 
 munity. 
 
 The motion picture reel as such, however, contains no 
 such inherent danger. The excuse offered, (and I use the 
 term "excuse" advisedly) is that the effect of the portrayal 
 of a scene upon a screen may have an effect upon the mind of 
 the spectator. But here again, if this be the effect, then the 
 State statute, or State regulations, will condemn the quality 
 of the picture and the offender would be subjected to prose- 
 cution under the criminal law. 
 
 The situation is not so apparent with food, drugs and 
 liquors passing in interstate commerce, because all the States 
 have not established pure health and pure food laws. In 
 addition, the use of food, drugs and drink affects the physical 
 well being of the citizen of the State and of the Nation as 
 such. If the far-fetched argument may be used, that the 
 physical well being of the man who is subject to call to the 
 duty of his country, to the colors and the flag, is the ground 
 for the legislation, it can be answered that it is not essential 
 for a man to be high-minded morally to be a good soldier, 
 whereas it is quite essential that he shall be physically sound 
 for military service. 
 
 38
 
 CENSORSHIP IN HISTORY. 
 
 The very form of government under which we live, that 
 is, a democracy of a kind that has never existed anywhere 
 else in the world, because all ancient democracies (Greek, 
 Roman and those of the Middle Ages, etc.) were 
 democratic only to a limited number of people. The very 
 democracy under which we live, as I have said, grew out of 
 the question of censorship. 
 
 During the administration of John Adams, it will be 
 recalled that in a moment of political madness there were 
 passed two laws, known as the Alien and Sedition Laws. 
 The Sedition Law gave the President the power to sum- 
 marily punish anyone who criticised the Government in 
 print, and to regulate the press in so far as criticism of the 
 Government, or any member of the administration, was 
 concerned. 
 
 Despite the fact that back of this measure, when it was 
 passed, was John Adams and the brains of the Federalist 
 Party; despite the fact that at the time the Government was 
 new and young, and the press was supposed to be particu- 
 larly licentious and extreme, so widespread was the indig- 
 nation that Adams was defeated for the Presidency in 1800. 
 The Federalist Party practically passed out of existence; 
 Thomas Jefferson became President of the United States, 
 and the Jeffersonian Democratic Party, pledged to an un- 
 censored press, came into control almost unanimously. 
 
 That was the only time in the history of these United 
 States that there was ever a serious attempt to harness or 
 censor the press, and the response of the American people 
 was such, and so emphatic, that no one has ever again 
 thought of making a similar attempt to violate either the 
 letter or the spirit of the first amendment to the Constitu- 
 tion, which declared that "Congress shall make no law re- 
 specting an establishment of religion, or prohibiting the free 
 exercise thereof, or abridging the freedom of speech or of 
 the press." 
 
 In this connection I might make reference to the fact 
 that in our own State our Legislature last year passed a law 
 
 39
 
 creating a Board of Censors of motion pictures, which was 
 vetoed by the Governor; not on the ground that it was viola- 
 tive of the Federal or State Constitution, but because Fed- 
 eral censorship was "coming anyway" and State censorship 
 was therefore unnecessary. And this despite the fact that 
 in our State Constitution there will be found a provision, in 
 Section 3, which is almost similar in language to that of the 
 Federal Constitution, the provision of the State Constitution 
 being as follows : 
 
 "Section 3. Every citizen may freely speak, write and publish his sen- 
 timents on all subjects, being responsible for the abuse of that right, and no 
 law shall be passed to restrain or abridge the liberty of speech or of the 
 press." 
 
 Now, of course, when the State Constitution speaks of 
 giving the man the inalienable right to make and publish 
 his sentiments on all subjects, it was never intended that if 
 a new invention was placed upon the market for publication 
 that it will be constitutional to prevent him from using it 
 merely because it was new. The deaf mute, of course, can- 
 not "speak freely," but if he is educated and is physically 
 able he may of course "write," but the State Constitution 
 also gives him the right to publish his sentiments on all 
 subjects. 
 
 How can it be said that it will be constitutional to pre- 
 vent him from publishing on the screen, whether he be a 
 mute or a speaking man, that which he desires to advertise 
 or portray or give expression to? When, mark you, our 
 State Constitution says that "no law shall be passed to re- 
 strain or abridge the liberty of speech or of the press." 
 
 It is evident, of course, that the framers of the Consti- 
 tution never intended that a man who could not speak freely 
 should be deprived of a means of expression, mechanically, 
 if you will, for that would be treating him differently from 
 the man more favored, who is in possession of all his physi- 
 cal powers. 
 
 One of the most vicious features of censorship is that it 
 vests a discretion in the censor which, like discretionary 
 powers vested in public officers, is subject to the capricious 
 and whimsical actions of the officials. Let me call your at- 
 
 40
 
 tention to the fact that if the producer or the management, 
 in exhibiting a photo-play, violated a penal statute and was 
 brought to court, the defendant when arraigned in court, 
 would be entitled to all the benefits and safeguards in the 
 proceedings provided for in a criminal proceeding; first, the 
 presumption of innocence ; second, that the defendant must be 
 proved guilty beyond a reasonable doubt; third, the consti- 
 tutional right of a jury trial except in cases of a mis- 
 demeanor. 
 
 These essentials are, of course, not applicable upon a 
 review of a case by a censor, and thus there is substituted, 
 in place of well grounded principles of law, the taste and 
 judgment of the censor. To illustrate the point further: 
 Assuming that we had Federal censorship in this country, 
 in addition to the censorship which obtains in the States 
 under their statute laws, a condition of this kind would be 
 conceivable. The censor of the State of Pennsylvania 
 passes a picture as being fit for exhibition in his State. The 
 moment that film is put in transit for the State of Ohio, and 
 put on exhibition within a mile or two of the State line, the 
 Federal censor steps in and declares that, in his opinion, the 
 film is not a proper one to be shown. 
 
 This statement emphasizes the point that I desire to 
 make, that the moment the Federal or State authorities un- 
 dertake to determine in advance that the photo-play cannot 
 be shown, instead of allowing it to be shown at the risk of a 
 prosecution for violating the penal law, what really occurs 
 is that individual taste and judgment on the part of the 
 various censors in the various States, and of the Federal 
 censor, is submitted in place of principles of law, which have 
 stood as bulwarks through centuries. 
 
 I have called attention to the presumption of innocence ; 
 of the necessity for proof beyond a reasonable doubt and 
 the right to a jury trial. 
 
 See how completely the scene shifts where censorship 
 obtains. In the first instance the producer after being al- 
 lowed to show the film is brought to trial; he may stand 
 mute with the burden on the prosecution, and if a prima facie 
 
 41
 
 case is made out, all the defendant need do is to create a 
 reasonable doubt as to his guilt. However, when the censor 
 attacks him, he is not only prevented from showing the film, 
 but when he comes to court he must assume the burden, after 
 having spent perhaps several hundred, or thousands, or as 
 much as a million dollars, (as some of the recent produc- 
 tions have cost) of establishing that he has a good and 
 proper film. 
 
 Even this is not sufficient, because, even though he may 
 establish this he must go a step further. He must assume 
 the burden of satisfying the court that the censor has acted 
 arbitrarily, whimsically or capriciously; all of the presump- 
 tions, however, being in favor of the censor having per- 
 formed his public duty honestly, faithfully and efficiently. 
 And the defendant meets with this almost unsurmountable 
 obstacle, that the court will unfavorably hold, as is demon- 
 strated by actual cases in the books, that the court will not 
 substitute its discretion for that of an officer, permitted 
 under the law, to exercise his discretion. The court may 
 very properly turn to counsel and say that whatever the 
 opinion of the court may be upon the subject it cannot, in 
 the absence of fraud or oppression, assume to exercise the 
 duties of the official censor, for he is presumed to be an ex- 
 pert upon the subject, whereas the judge is not. 
 
 INDIRECT CENSORSHIP. 
 
 (I) In our own City of New York, as perhaps in other 
 cities in our country and various places throughout the 
 world, there has grown up an indirect censorship. The 
 licensing board of theatres have either arbitrarily or under 
 the guise of law, assumed the right to supervise the quality 
 and substance of a picture that is to be shown. Thus, Mr. 
 George H. Bell, License Commissioner of the City of New 
 York, although under the statute having no power to censor 
 photo-plays any more than he has the right to censor dra- 
 matic performances by living actors, compels the producers 
 of photo-plays to submit to him, in advance of the exhibition 
 
 42
 
 thereof, (although he claims it is pure "suggestion,") for 
 his decision as to what shall or what shall not be eliminated 
 from the photo-play as shown him. 
 
 Of course he has a method of enforcing his "suggestion" 
 by cancelling the license of the theatre at which a photo- 
 play is shown which he has not endorsed. For example, 
 within the last two years a photo-play was shown at one of 
 the largest and best known theatres in the city, dealing with 
 a story of war conditions abroad. The License Commis- 
 sioner, to whom the picture was shown in advance, refused 
 to approve it, claiming that it violated the President's proc- 
 lamation of neutrality; and this without any suggestion on 
 the part of the Federal authorities. Accordingly, when the 
 picture was shown at the theatre, it was claimed that the 
 License Commissioner had threatened to revoke the license 
 of the theatre unless the photo-play was immediately with- 
 drawn. 
 
 Whereupon the producer of the photo-play sought re- 
 lief in the Supreme Court of our city, and in an ably writ- 
 ten opinion by Mr. Justice Whittaker,* he enjoined the 
 License Commissioner from interfering with the photo-play, 
 holding that it was not within his power to exercise this in- 
 direct form of censorship. Despite that decision, however, 
 the practice of this indirect censorship still continues. 
 
 (II) There is another form of indirect censorship which 
 is voluntarily submitted to. There is a board, known as 
 "The National Board of Review," (formerly known as 
 National Board of Censorship) composed of educators, 
 public spirited citizens, clergymen, publicists, etc. This body 
 receives from the manufacturer, in advance of the exhibi- 
 tion, the photo-play, and while having no power by law to 
 censor the picture, directs and suggests eliminations, or in 
 some cases refuses to pass a picture. Frequently you have 
 seen upon the screen the designation "Passed by the Na- 
 tional Board of Review," or previously, National Board of 
 Censorship. It is to this situation that that designation has 
 reference. 
 
 See Life Photo Company v. Bell, 90 Misc., 469. 
 
 43
 
 There can be no ground for Federal Censorship under 
 the police power of the Federal Government, for it is ex- 
 tremely doubtful if the Federal Government, as such, has 
 police power. The attempt to evade clear provisions of the 
 statutes and constitutions of the States, up to this time, has 
 been jealously guarded, and whenever the question has been 
 presented as to the exercise of police power in the Federal 
 Government, it has been stoutly resisted by the State govern- 
 ments. 
 
 TARIFF ACT CENSORSHIP PROVISION. 
 
 A reference to censorship is also found in the Tariff 
 Act. In the Act of October 3, 1913, Compiled Statutes, 
 1913, Section 5291, Being Chapter 1638, Statutes 114, it 
 is thus provided in Subsection 380, of Section 1, of the said 
 Tariff Act of 1913, reference to which will be found in 
 Webber v. Fried, (355 Fed. Rep., 355, at page 356), that 
 a duty is imposed on photographic film positives imported 
 for use in connection with moving pictures, or the exhibition 
 thereof, with the provision that films so imported may be 
 subjected to such censorship as the Secretary of the Treas- 
 ury may impose, but up to this time, as was the situation 
 when the Webber case was presented in the Federal Court, 
 the power given to the Secretary of the Treasury has not 
 been exercised by him, and so far as research has developed, 
 there are no censorship regulations by the Secretary of the 
 Treasury. This, of course, would have reference only to 
 the importation of films, which may or may not be covered 
 by the constitutional provisions. 
 
 SUNDAY LEGISLATION AND DECISIONS. 
 
 A statement as to the law in this State, regarding the 
 operation of a motion picture on Sunday, is not easy. 
 
 When the motion picture theatres first appeared in this 
 State, in 1907 and 1908, there was considerable agitation 
 against these places being operated on Sunday. The dra- 
 matic theatres were operated under what is called "A The- 
 atrical License," issued by the Police Commissioner, where- 
 
 44
 
 as the motion picture theatres were operated under what is 
 known as "A Common Show License," issued through the 
 Mayor's office. 
 
 The State statute prohibited the giving of Sunday per- 
 formances in theatres, of the kind defined in the statute. 
 Of course when this law was passed, motion pictures were 
 unknown, so that obviously this class of theatres could not 
 come within the statute nor the charter provision which fol- 
 lowed the statute.* 
 
 The only other section of the Penal Law which might 
 be applicable is that pertaining to public sports and public 
 exhibitions on Sunday, f 
 
 There is nothing in the Constitution of the State which 
 prohibits the transaction of business on Sunday. It is our 
 Penal Law which recognizes Sunday as a religious and a 
 rest day, and this is covered by Section 2,140 of the Penal 
 Law, formerly Section 259 of the Penal Code, which reads 
 as follows : 
 
 "The first day of the week being, by general consent, set apart for rest 
 and religious uses, the law prohibits the doing on that day of certain acts 
 hereinafter specifically mentioned, which are serious interruptions of the 
 repose and religious liberty of the community." 
 
 Then comes the sections declaring that Sabbath breaking 
 is a violation of the prohibition, the punishment for Sab- 
 bath breaking, and finally, a definition of the prohibited acts 
 on the Sabbath. 
 
 Therefore, it is to be observed, that only those things 
 are prohibited which are specifically legislated against. 
 
 Having in mind the fact that when this section of the 
 Penal Law was passed, motion pictures were unknown, the 
 general language employed was not intended to cover this 
 class of entertainment, so the attempt has at times been 
 made to establish whether or not so much of the language 
 as was employed, was sufficiently specific to include the 
 motion picture theatre. 
 
 The attempt to close the motion picture theatres on Sun- 
 
 *See Section 2,152 of the Penal Law, formerly Section 277 of the Penal Code; see 
 also Section 67 of the Greater New York Charter, as amended by the Ordinance of 
 the Board of Aldermen, passed in 1908. 
 
 tSection 2,145 of the Penal Law, formerly Section 265 of the Penal Code. 
 
 45
 
 day, resulted in the decision of the People v. Hemleb, in 
 the Second Department of the Appellate Division,* in which 
 Mr. Justice Gaynor, writing for the court, Judges Jenks 
 and Woodward concurring, and Judges Hooker and Rich 
 dissenting, held that the giving of a motion picture show 
 was not legislated against under the statute and was there- 
 fore not illegal. 
 
 This was substantially the view of Justice Greenbaum, 
 in Eden Musee Company v. Bingham, 58 Misc., 644, and 
 Mr. Justice Davis, in the Supreme Court, First Depart- 
 ment, in habeas corpus proceedings, but our Appellate Di- 
 vision in the First Department, in the cases of the Eden 
 Musee Company v. Bingham, (125 App. Div., 780), Sus- 
 keind v. Bingham (125 App. Div., 787), and Keith v. 
 Bingham (125 App. Div., 791), refused to pass directly 
 upon the question when the matter was there presented. 
 
 Judge Pound, at Buffalo, held that it was illegal.f 
 Judge Foote, in the Supreme Court at Rochester held that 
 the giving of a motion picture show on Sunday was illegal. 
 Judge Carr, at Brooklyn, held that it was legal.! 
 
 Recently the Appellate Division of the Third Depart- 
 ment, through four of the judges, the fifth judge dissenting, 
 held that despite previous decisions, the giving of a motion 
 picture show on Sunday was illegal. 
 
 In Hamlin, as Commissioner, versus Bender, decided by 
 the Appellate Division, in the Fourth Department, May 24, 
 1916, there is a per curiam opinion, likewise holding it 
 illegal, the Court said: "We think no useful purpose will 
 be served by a further discussion here of the questions so 
 fully considered in the opinion below (92 Misc., 16). The 
 authorities are in conflict, and the questions can only be 
 settled by the court of last resort. We agree with the con- 
 
 *See People v. Hemleb, 137 App. Div 356. 
 
 t See United Vaudeville Company v. Zella, 58 Misc., 16. 
 
 jSee People, etc., v. Finn, 57 Misc., page 659. 
 
 See People of the State of New York ex rel. Leroy H. Bender, relator- 
 respondent v. Joseph Joyce and Tames Keith, Chief of Police; opinion by Mr. Justice 
 Lyon, concurred in by Judges Kellogg, Howard and Cochrane, Judge Woodward dis- 
 senting. 
 
 46
 
 elusions reached by the Trial Court, and do not concur in 
 the views which prevail in People vs. Hemleb, 127 A. D., 
 
 356" 
 
 Therefore, while I am not prepared to say just what the 
 law in our State is upon the subject, because of conflicting 
 opinions, nevertheless it would appear that within the terri- 
 torial limits of the Greater City of New York it is perfectly 
 legal to give a motion picture show on Sunday; but when 
 you travel forty or fifty miles north of the city line, under 
 the recent decision of the Appellate Division of the Third 
 Department, it is illegal. Traveling forty or fifty miles 
 north from Albany, it is legal, but traveling the same dis- 
 tance northwesterly it would be illegal. 
 
 Of course our Court of Appeals has not yet given ex- 
 pression of its views upon the subject, but I believe that 
 when the decision is given, it will be held that it is not illegal 
 to give a motion picture show on Sunday. 
 
 Before the pronouncement of the Appellate Division of 
 the Third Department, an atmosphere had been created 
 favorable to the exhibition of motion pictures throughout 
 the country, for the effect of the earlier decisions in this 
 State, in 1908 and 1909, declaring the Sunday exhibitions 
 of motion pictures to be legal, was felt throughout the entire 
 country. Even where there had been previous ordinances, 
 laws and decisions, declaring Sunday exhibitions illegal, 
 these either became dead letters or were rescinded, so 
 that it might be said that public exhibitions on Sunday are 
 recognized as legal as a result of these earlier decisions, and 
 this as a result of what Judge Gaynor said was the highest 
 kind of law public opinion. 
 
 I had prided myself on the fact that in this State I was 
 able to have an humble part in shaping the law so that, ex- 
 cept in a few of the rural communities, it was established 
 that giving a motion picture show on Sunday was legal. 
 The recent decision referred to disturbs that situation and 
 a new argument becomes necessary. I have already referred 
 to the fact that before the advent of motion picture 
 theatres, and exhibitions of photo-plays therein, theatres in 
 
 47
 
 this State were licensed under the "Theatrical Law" and 
 were amenable to the then provisions of the Penal Code, 
 Section 277, now Section 2,152. For those who are inter- 
 ested in the language of that statute (relating to prohibition 
 against Sunday performances), it reads in part as follows: 
 
 "The performance of any tragedy, comedy, opera, ballet, farce, negro 
 minstrelsy, negro or other dancing, wrestling, boxing * * * * sparring con- 
 test, trial of strength, or any part or parts therein, or any circus, equestrian, 
 or dramatic performance or exercise, or any performance or exercise of 
 juggling, acrobats, club performers or rope dancers, on the first day of the 
 week is prohibited." 
 
 The Section has specific reference to a performance by 
 living persons, or in other words, a performance of the 
 written drama; or a performance of the stage. 
 
 The only other Section applicable therefore, if any, is 
 that which is now known as 2145 of the Penal Law, former- 
 ly 265 of the Penal Code. That Section reads as follows: 
 
 "All shooting, hunting, fishing, playing, horse-racing, gaming, or other 
 public sports, exercises or shows, upon the first day of the week, and all 
 noise disturbing the peace of the day are prohibited." 
 
 This statute is derived from one of the earliest laws in 
 the history of the State. The first enactment was on Febru- 
 ary 23, 1788, Chapter 42 of the Laws of that year, under 
 a statute entitled "An Act for Suppressing Immorality," 
 and it prohibited traveling, servile laboring, or working, 
 shooting, fishing, playing, hunting or frequenting tippling 
 houses, or any unlawful past-times by any person of the 
 State, on the first day of the week, called Sunday. It is in- 
 teresting to note that persons under the age of fourteen 
 years were exempted from the provision of this statute, from 
 which it might be inferred that it was perhaps legal for a 
 youngster under fourteen to frequent a tippling house or en- 
 gage in unlawful exercises or pastimes. 
 
 The penalty for violation of the statute was that the of- 
 fender forfeit and pay to the use of the city, or town, the 
 sum of six shillings. If he showed, cried, or exposed goods 
 for sale, except small meat, milk and fish before nine o'clock 
 in the morning, he would forfeit the goods so shown, cried 
 or exposed, for the use of the poor of the city, or town, 
 where the offense was committed. 
 
 48
 
 It was further provided that if any person should be 
 found shooting, fishing, playing, hunting or going to or 
 coming from any market, or landing with cart, wagon or 
 sled on Sunday, it should be lawful for the constable, or 
 other citizen, to stop that person and hold him until the 
 next day and then take him to a Justice of the Peace, to be 
 dealt with according to the law; but there was a proviso 
 that any person going to or returning from church, or place 
 of worship, within the distance of twenty miles, or going to 
 call a physician, surgeon or midwife, or carrying mail to or 
 from a post-office or going express, by order of a public 
 officer, should not be considered as traveling within the 
 meaning of the Act. From which it may be inferred that a 
 person living more than twenty miles from a church was 
 prevented from going to church on a Sunday. If he re- 
 quired the services of a physician, surgeon or midwife, he 
 could not go after one if his habitation was more than 
 twenty miles from where a physician, surgeon or midwife 
 resided. 
 
 This idea was probably borrowed from the old Rab- 
 binical law, which forbids a devout Jew from traveling 
 more than a certain distance on Sabbath, which is consider- 
 ably lessened from the distance which he may travel on the 
 Day of Atonement. So, after all, the straphanger in the 
 subway should be happy that he did not live in 1788, amen- 
 able to the Sunday laws. 
 
 This remained the law of our State until 1813, without 
 change and it was then adopted and went into the Revised 
 Statutes of 1813, with the addition of the word "gaming." 
 When the Penal Code was adopted in 1881, there was sub- 
 stituted for the words "or any unlawful exercises or past- 
 times," the phrase "or other public sports, exercises or 
 shows." In 1883, by Chapter 358 of the Laws of that 
 ^year, the word "pastimes" was omitted, so the doing of 
 "pastimes" is not now prohibited on Sunday. 
 
 And this remained the law until the Penal Law was 
 adopted as part of the Consolidated Laws of this State, 
 which became a law March 12, 1909, when the exact phrase- 
 
 49
 
 ology was incorporated. The language of the statute is 
 important, particularly in view of the well-reasoned opinion 
 of the Appellate Division of the Second Department. It 
 established that the law, as drafted under a familiar rule of 
 interpretation, ejusdem generis, that the Legislature could 
 not have contemplated or had in mind motion picture shows, 
 because it.was not of the general character of the prohibited 
 shows or public sports provided for in the statute. 
 
 The Appellate Division of the Third Department, how- 
 ever, thus disposes of the question. Says the Court: 
 "There is but a single question to be decided on this ap- 
 peal, and that is, what did the Legislature mean when it 
 wrote in the statute, following the prohibition against shoot- 
 ing, hunting, fishing, playing, horse-racing, gaming, the 
 words 'other public sports, exercises or shows' ? Did it in- 
 tend to prohibit exhibitions in the nature of the ordinary 
 motion picture show? It would seem clear that the answer 
 to that question must be in the affirmative." 
 
 This is logic that I am unable to follow. The Court 
 declares the intentions of the Legislature to be clear, al- 
 though a number of judges in this State, of practically equal 
 and co-ordinate jurisdiction, exceeding greatly by number 
 the four judges who concurred in the opinion that it was 
 "clear," take an entirely different view. 
 
 Let us for a moment, therefore, analyze the situation. 
 Now, of course, under the rule of ejusdem generis, it has 
 almost invariably been held that in construing the scope of 
 such general words as "other public sports, exercises or 
 shows," it is necessary to consider the specific prohibitions 
 that precede the above quoted words of general description; 
 and where words of specific prohibition are followed by 
 language of general description, the latter is to be consid- 
 ered as being co-ordinate with the particular or specific pro- 
 hibition. So that, under this rule, the words "or other pub- 
 lic sports" must be read in conjunction with the specific acts 
 prohibited, viz. : shooting, hunting, fishing, playing, horse- 
 racing, gaming, which, by the language of the statute, were 
 prohibited only in public. Thus it has been logically argued 
 
 50
 
 by Mr. Justice Greenbaum, in the Eden Musee case, that the 
 intention of the Legislature was to prohibit outdoor exhi- 
 bitions and performances which were attendant with noise 
 and offense to the community, and therefore within the inhi- 
 bition of being serious interruptions of the repose of the day, 
 because openly and publicly conducted outdoors. 
 
 There can be no indication that the Legislature legis- 
 lated against motion picture shows, for I have already 
 shown that the language of the statute has been almost simi- 
 lar as far back as 1788. Coming down to more recent times, 
 when the Code was adopted in 1881 by the Legislature, it 
 cannot be fairly asserted that the Legislature intended in 
 that year to prohibit the kind of performance which would 
 first become known commercially twenty-six years in the 
 future (1907). The Legislature could not have intended, 
 in the language implied, that motion picture shows were to 
 be prohibited, for however astute the legislator who drew 
 the Act, or those voting in favor of it, their imagination, 
 powerful as it might have been, never dreamed of motion 
 pictures. To emphasize the point, let us recall the well- 
 known rule : that you may not read into a penal statute by 
 implication that which the penal statute does not in express 
 terms prohibit. Otherwise a man would be subjecting him- 
 self to a violation of the criminal law without knowing that 
 he was violating the law from a reading of the statute. It 
 is for this reason that even where statutes are under review 
 by the Court, affecting civil rights, that the Courts may 
 look to the debates of the legislatures, or in the Congress, 
 for the purpose of determining what the legislature intended 
 to legislate about or against. 
 
 It is safe to assume that if there had been any debate 
 on the adoption of the language implied in the statute, no- 
 where would there be found reference to the possibility of 
 a moving picture exhibition on Sunday. You could not say 
 that the legislation prohibiting a balloon ascension on Sun- 
 day, before the advent of aeroplanes, contemplated an in- 
 hibition of a commercial trip of an aeroplane on Sunday, 
 many years after the enactment of the statute. 
 
 si
 
 Again: When our Penal Law was made part of the 
 Consolidated Laws of our State, in 1909, the Legislature, 
 with full knowledge at the time that motion picture exhi- 
 bitions were then openly and publicly given on Sunday, with 
 knowledge presumed in the Legislature of the decisions of 
 the Courts at that time, accepted the statute as it thereto- 
 fore existed under the Penal Code. The Legislature was 
 aware that the provisions of this statute were held by the 
 highest court to be non-violative of the Sabbath Law, and 
 it is presumed, intended to leave the law as it had been ad- 
 judicated by the court. 
 
 And this is what Judge Pound, now of our Court of 
 Appeals, twice said in two cases before him at Special Term : 
 
 "It now seems to be established that the Penal Law of the State of New 
 York does not prohibit the exhibition of moving pictures on Sunday ; and 
 that the municipality cannot, independent of express legislative authority, by 
 ordinance compel and enforce Sunday closing of moving picture shows * * *; 
 the Legislature alone may command how Sunday may be kept."* 
 
 "Seven years of inaction by the Legislature since this decisionf was 
 rendered, suggests an acceptance of the ruling by a majority of the people, 
 or of their representatives. Among earthly powers, the Legislature alone 
 may command how Sunday may be kept. It is the sole judge of acts to be 
 prohibited." 
 
 It is very well for those who seek to hold that the statute 
 is broad enough to prohibit motion picture shows on Sun- 
 day to say that if the law, as found, is wrong, relief should 
 be had with the Legislature rather than the courts, but this 
 is only begging the question. Since we are dealing with the 
 Penal Law, it would be fairer if those who want Sunday 
 opening prohibited would petition the Legislature to amend 
 the law so that there would be an express clause, making 
 moving pictures on Sunday illegal. 
 
 In nearly every state of the Union, where the question 
 came before the court on the right to operate a motion pic- 
 ture show on Sunday, it has been held that it was not a vio- 
 lation of a statute similar to the one we have in our State. 
 Thus, in the State of Texas, ex parte Lingsenfelter, 33 
 Amer. and Eng. Ann. Cases, 763, for having conducted a 
 motion picture theatre in April, 1911, to which admission 
 
 *Klinger v. Ryan, 153 Supp., 937. 
 tPeople v. Rand, 154 Supp., 293. 
 
 52
 
 was charged, the defendant was convicted in the lower 
 court, but on appeal the conviction was reversed, the court 
 saying, construing the term Penal Code, as follows : 
 
 "The exhibition of moving pictures on Sunday, and the charge of admis- 
 sion fee therefor, not being prohibited by Article 199 of the Penal Code, or 
 any other Article of the Penal Code of the State of Texas, the conviction of 
 the applicant in the Corporation Court is without authority and unlawful." 
 
 Article 199 of the Penal Code of Texas, referred to in 
 the opinion, reads as follows : 
 
 "Article 199. Any proprietor of any place of public amusement, or the 
 agent or employe of any such person, who shall permit his place of public 
 amusement to be open for the purpose of public amusement on Sunday, shall 
 be fined not less than $20, nor more than $50. The term "place of amuse- 
 ment" shall be construed to mean circuses, theatres, variety theatres and such 
 other amusements as are exhibited and for which an admission fee is 
 charged." 
 
 This statute is even broader than our own, but the Court, 
 in applying the rule of ejusdem generis, said : 
 
 "What are we to understand by the general term 'and such other amuse- 
 ments as are exhibited ****'? Clearly, we think, amusements of a like 
 or similar character. This seems to have been the construction given to sim- 
 ilar statutes by many courts." 
 
 In the State of Idaho, under a statute almost identical 
 with ours, it was held not to be a violation of the law to 
 have a motion picture exhibition on Sunday.* The statute 
 of that State reads as follows: 
 
 "It shall be unlawful for any person, or persons, to keep open on Sun- 
 day, any theatre, playhouse, dance-house, race-track, merry-go-round, circus, 
 or show, concert, saloon, billiard or pool-room, bowling alley, variety hall or 
 any such place of public amusement." 
 
 In the State of Montana, under a similar statute to ours,, 
 in Section 8,369 of the Revised Codes, it was held that a 
 moving picture exhibition on Sunday was not illegal.f The 
 defendant was convicted in a court for violation of the 
 statute, in that he exhibited motion pictures accompanied 
 by piano selections and vocal music. On appeal the Court 
 said: 
 
 "The operation of a motion picture show on Sunday, in which the picture 
 shows were of clean and moral character, were approved by a general board 
 of censors located in another State, and were accompanied by piano selec- 
 tions and vocal music, is not violative of the Revised Code, Section 8,369,. 
 
 See in re Hull, 18 Idaho, 475. 
 
 tSee State v. Penny, 42 Montana, 118. 
 
 S3
 
 making every person who on Sunday, the first day of the week, keeps open 
 or maintains or aids in opening or maintaining any theatre, playhouse, dance- 
 house, race-track, gambling-house, concert saloon, or variety hall, guilty of a 
 misdemeanor." 
 
 That statute reads as follows : 
 
 "Every person who, on Sunday, the first day of the week, keeps open or 
 maintains or aids in opening or maintaining any theatre, playhouse, dance- 
 house, race-track, gambling-house, concert saloon or variety hall, is guilty 
 of a misdemeanor." 
 
 It was similarly held, under the statute of the State of 
 Mississippi, which reads as follows : 
 
 "Section 1,368. If any person shall engage in, show forth, exhibit, act, 
 represent, perform, or cause to be shown forth, acted, represented, or per- 
 formed, any interludes, farces, or plays of any kind, or any games, tricks, 
 ball-playing of any kind, juggling, sleight of hand, or feats of dexterity, 
 agility of body, or any bear baiting or any bull fighting, horse racing or cock 
 fighting, or any such like show, or exhibit whatsoever on Sunday, every 
 person so offending shall be fined not more than $50." 
 
 Adjudicated cases in Kansas and Missouri, under simi- 
 lar statutes, declared it not a violation of the law to give a 
 motion picture show on Sunday. In Kansas, construing 
 their statute, the court held in State v. Prather, 79 Kansas, 
 513, that playing baseball on Sunday would not violate the 
 law. The statute in that State reads as follows : 
 
 "Every person who shall be convicted of horse-racing, cock-fighting, or 
 playing at cards, or games of any kind, on the first day of the week, com- 
 monly called Sunday, shall be deemed guilty of a misdemeanor and fined 
 not exceeding fifty dollars." 
 
 In Misosuri it was similarly held, regarding a game of 
 baseball, that it was not a violation of their statute (ex parte 
 Joseph Neet, 157 Missouri, 527). There the Court said, 
 construing Section 2,242 of the Revised Statutes of Mis- 
 souri : 
 
 "That there was no law of the State which prevents the playing of 
 baseball on Sunday." 
 
 The Missouri statute reads as follows: 
 
 "Every person who shall be convicted of horse-racing, cock-fighting, or 
 playing cards or games of any kind, on the first day of the week, commonly 
 called Sunday, shall be deemed guilty of a misdemeanor and fined not ex- 
 ceeding $50." 
 
 In fact, in a number of the western and southern States, 
 there is no statutory inhibition against Sunday theatricals 
 or Sunday moving picture exhibitions. Thus, in Arizona, 
 the acts forbidden on Sunday do not include theatrical 
 amusements, sports or exhibitions of any kind. All that is 
 
 54
 
 prohibited on Sunday is the opening of public offices and 
 the exercise of judicial function, and their act becomes ef- 
 fective as late as September, 1901. 
 
 Under the statutes of Arkansas, there is likewise no 
 prohibition. What is there forbidden is horse-racing, cock- 
 fighting and gambling. 
 
 In Alabama all that is forbidden on Sunday is the play- 
 ing of base-ball. There seems to be no prohibition against 
 any other form of amusement. 
 
 In Florida amusement shows, or exhibitions, are not 
 specifically prohibited by the statute. 
 
 In the neighboring State of Connecticut, their statute 
 legislates against concerts of music, dancing, or other public 
 diversions on Sunday, but makes no specific reference to 
 theatres, theatrical exhibitions or moving picture shows. 
 
 These references to the state statutes and decisions may 
 be multiplied, but enough has been given to indicate the 
 general tendency. 
 
 INJUNCTIONS DETERMINED THE LAW. 
 
 It is interesting to note that most of the litigation affect- 
 ing this industry was determined by injunction proceedings, 
 and it was through the agency of the special writ of injunc- 
 tion (which is rarely granted excepting in clearly defined 
 cases) that relief was afforded to the person, or persons, in 
 the industry when recourse to the courts was necessary. 
 
 This is not only interesting but is a commentary on the 
 haste with which things are done in our day and age, par- 
 ticularly when affecting a new industry. It is obvious that 
 the mere fact that there were injunction proceedings, shows 
 that exigencies arose which required the immediate inter- 
 ference of the court by this extraordinary and seldom re- 
 sorted to process, in order to conserve the rights of the in- 
 dustry or to prevent threatened ruin and destruction. 
 
 This also presents another aspect, that since these mat- 
 ters were largely disposed of by preliminary hearing, with- 
 out the formal taking of testimony and the right to cross- 
 
 55
 
 examine, the principles and doctrines have not been care- 
 fully evolved, and certainly errors must have crept in. To 
 illustrate: In the early stages of the industry, the Sunday 
 aspect arose, usually through attempts of the police to sum- 
 marily close motion picture theatres on Sunday, so that it 
 was necessary to rush to court for relief, with the conse- 
 quent necessity for speedy decision. Since a speedy decision 
 was required, the court necessarily was obliged to limit the 
 argument and papers such as the exigency of the case war- 
 ranted. 
 
 Another illustration: In the early stages of the indus- 
 try, in our own City of New York, the then Mayor, Mc- 
 Clellan, on the evening preceding Christmas, issued an order 
 for the wholesale revocation of licenses of every moving 
 picture theatre in New York, and directing that they be 
 immediately closed, with instructions to the Police Commis- 
 sioner to enforce this order. This was a big question and 
 involved the decision as to whether the Mayor of the city 
 had either the right or the privilege, by a stroke of the pen, 
 to practically cripple the industry, not only affecting the 
 theatres and the many thousands of employes engaged there- 
 in, but the producers of the pictures, whose market was 
 found in the theatres through the exhibition of the films; 
 also the thousands who were engaged in the manufacture of 
 the films, as well as those manufacturing the material for 
 the making of the pictures, the cameras and the projecting 
 machines. 
 
 Of course there was necessity for haste. Here again 
 the extraordinary writ of injunction was resorted to, and 
 Mr. Justice Blackmar's decision (Fox v. McClellan supra) 
 was that the action of the Mayor was capricious, whimsical 
 and without legal grounds, his action rescinded and the 
 Mayor enjoined. 
 
 Another illustration: I have referred to the acts of the 
 so-called "Motion Picture Trust" and their claim of the 
 right of refusing to deal in their commodity with the rental 
 companies. Here again the question was presented by in- 
 junction, for when there was refusal to deliver their pro- 
 
 56
 
 ductions to the Greater New York Film Rental Company, 
 instantly the necessity for action arose. There was a rush 
 to the court to enjoin the manufacturers from immediately 
 carrying out their threat, as a result of which there stands 
 upon the books to-day a reversal by the Circuit Court of 
 Appeals of the decision of Judge Learned Hand, to which 
 I have referred, and which I contend is wrong in principle, 
 in a proceeding where no oral testimony was taken, no cross- 
 examination of witnesses, the decision being based merely 
 upon affidavits or papers presented upon the application for 
 preliminary injunction. 
 
 The copyright, unfair competition and infringement as- 
 pect presents the same anomoly. Usually these matters are 
 disposed of on informal hearing. A picture is advertised 
 for exhibition without the consent of the person holding the 
 copyright, who rushes into court for an application of in- 
 junction to restrain the exhibitor from using a pirated or 
 simulated version of his story. There is no time for a de- 
 liberate hearing, and the questions involved in the case are 
 usually disposed of by the judge after almost ex parte read- 
 ing of the complainants' and defendants' papers. 
 
 Obviously, the photo-play, in States where censorship 
 has been established, is received by the censor shortly in ad- 
 vance of the advertised day of its production or exhibition. 
 The decision of the censor may be speedy or delayed as the 
 case may be. Usually it comes within a few hours before the 
 advertised release date. If the decision is adverse, the pro- 
 ducers are necessarily required to hasten into court for re- 
 lief by injunction. Since thousands of theatres throughout 
 the country are waiting for the delivery of the film, and 
 their audiences by advertisements are expecting to see it 
 shown, there must be speedy action and speedy decision. 
 Hence, the extraordinary writ of injunction is resorted to, 
 with the same necessity for speedy decision and the same 
 lack of opportunity for carefully written opinions, as I have 
 previously pointed out. 
 
 The question may be asked as to what is the remedy for 
 this. My answer is that if we will get away from the idea, 
 
 57
 
 expressed in the opening portion of this lecture, that the 
 legal Lilliputians shall not tie with the red-tape of legisla- 
 tion an industry, particularly one in its formative period 
 without deliberate hearings and action, in a large measure 
 these results will be avoided. 
 
 In the first place, public officials who intend to take action 
 with respect to the Sunday proposition, should not do so 
 except by first making application to the court with the right 
 of hearing of the persons to be affected. In this way the 
 opportunity is afforded to all those engaged in the industry 
 to prepare in advance for an adverse decision and to regu- 
 late their conduct accordingly. 
 
 In the matter of copyright, unfair competition and in- 
 fringement, the law may be so moulded that the person, or 
 persons, intending to release or exhibit a photo-play, should 
 give notice by advertising, a sufficient time in advance of 
 his or their intention so to do ; the statute further providing 
 that within a certain stipulated number of days, application 
 may be made to the court, by the person injured, for such 
 relief as the situation requires; and further providing that 
 no preliminary injunction shall be issued unless the applica- 
 tion shall be made within the stipulated time, which should 
 be such time in advance of the first exhibition as would give 
 the court opportunity for careful inquiry and decision. 
 
 The other abuses, if they be such of which I complain, 
 could similarly be regulated, either by statute or rules of 
 court. 
 
 Naturally, such a review as we have made 
 to-night must be cursory and even here and there disjointed. 
 At the same time I hope that enough has been said to encour- 
 age research and study of this most fascinating subject. 
 
 58