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WHERE BASED UPON A DRAMATIC COMPOSITION 3
wherein the author could grant the exclusive dramatic rights to produce the play upon the stage and simultaneously with its production on the stage, could grant a license to reproduce the play in motion pictures to third parties, the exhibition of which would seriously interfere with, or even destroy, the production upon the stage with living actors.
This situation was imminent in the recent case of Harper Brothers & ano. v. Marc Klaw & ano .4 In that
4 Harper Bros. v. Klaw (1916), 232 Fed. (D. C.) 609, Hough, J.: “If by the agreement of 1899 the defendant had been granted the exclusive right of dramatizing ‘Ben Hur’ or producing any play or plays that might be made out of ‘Ben Hur,’ there would be no doubt at all as to their right to make a ‘ movie play ’ as well as the kind of play that has heretofore been produced. . . . But the grant made by that agreement was far more limited. The right conferred was to produce one version only, and that in a particular manner, and in places limited in cities of a certain size. The contract prohibits any change in the manner of performance or text, and contains provisions as to royalties and their computation confessedly incapable of application to any method of producing photo-plays in commercial use or
known to witnesses or counsel. It is unnecessary to expand this thought, the whole arrangement made between the parties in 1899 is not only inconsistent with but repugnant to the thought of making ‘movies’ out of ‘Ben Hur.’
“This differentiates the case at bar from Frohman v. Filch (1914), 164 A. D. (N. Y.) 231, with which I fully concur, but these defendants never got so ample a grant as did Mr. Frohman.
“It follows, since the copyright covers a photo-play and Klaw & Erlanger got no license to make or produce one, they would infringe if their threat were carried out — therefore they must be enjoined.
“Plaintiffs assert and almost assume that since defendants cannot make a ‘movie’ out of ‘Ben Hur’ and such right must