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THE LAW OF MOTION PICTURES
at the time the contract was made, the production of motion picture plays was a well-known business, it was not intended that the contract should carry the exclusive right to dramatize for that purpose, but that such right remained in the author.8
In Harper & Bro. v. Klaw, the preamble of the contract recited that the defendants were to obtain “the exclusive right of producing such dramatic version on the stage” and the body of the contract contained a provision that Klaw & Erlanger were granted the sole right of “producing on the stage” or “performing” the “dramatic version” thereof. It was there held that that portion of
8 Klein v. Beach (1917) , 239 Fed. (C. C. A.) 108, Hand, J.: “The actual words of grant are these: ‘the sole and exclusive right to dramatize the said book for ; presentation on the stage.’ The plaintiff insists in view of Kalem Co. v. Harper, 222 U. S. 55, 32 Sup. Ct. 20, and Frohman v. Fitch, 164 App. Div. 232; 149 N. Y. Supp. 633, that dramatic rights include motion picture rights. If used alone that is doubtless true, especially if the contract antedate the commercial use of motion pictures. Yet Judge Hough in Harper v. Klaw, 232 Fed. (D. C.) 609, held on a contract dated in 1899 that the words ‘the exclusive right of producing such dramatic version on the stage,’ did not give to the grantee
any motion picture rights, although it is true, he also held that such a grant raised by implication a negative covenant against destroying the effect of such a grant by motion pictures. That decision would avail the plaintiff here, if the date of this contract had been so early; it will hardly serve at the end of November, 1911, long after motion pictures had become common and the distinction between them and the stage proper had for all purposes become well fixed. There is no basis for an implied negative covenant, because the -situation has not changed since the contract was made so as to create an unexpected situation if the terms be strictly interpreted.”