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4
THE LAW OF MOTION PICTURES
ca.se Klaw & Erlanger had acquired from Harper Bros, the exclusive right to produce a dramatization of the novel “Ben Hur.” Klaw & Erlanger claimed that under the contract they had the right to reproduce the dramatization in the form of motion pictures. Harper Brothers contended that they had granted Klaw & Erlanger a license solely to produce the play upon the stage with
exist somewhere, it is in them, — ■ as being an unconveyed portion of the copyright estate wherefrom was carved defendants’ limited license.
“In strictness of law, I think this is true, but it does not always follow that because one owns a certain thing he may use it to the detriment of another especially if the owner is under contractual obligations to such other.
“The ‘movie’ rights to ‘Ben Hur’ undoubtedly existed in 1899, but in nubibus or (what is frequently the same thing) in contemplation of law only. As a matter of fact they are an accretion or unearned increment conferred of late 3’ears upon the copyright owners by the ingenuity of many inventors and mechanicians.
“It is my opinion there is implied a negative coven-ant on the part of the plaintiffs ( the grantors of defendants’ restricted license) not to use the ungranted portion of
the copyright estate to the detriment, if not destruction of the licensee's estate.
“Admittedly if Harper Bros, (or Klaw & Erlanger for the matter of that) permitted photo-plays of Ben Hur to infest the countr\-, the market for the spoken play would be greatly impaired if not destroyed.
“This being the fact, the law is analogous to that which implies from a covenant to make a certain use of property, a covenant negative against doing anything else with it (High on Injunction, 4th Ed., Section llola, and cases cited).
“The result is that plaintiffs may take the injunction pra3’ed for against the defendants, and the defendants ma3r have the same relief against plaintiffs. The meaning of stick double injunction is that as long as the contract of 1899 exists, neither parly thereto can produce a photo-play of Ben Hur except by bargain with the other.”