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WHERE PICTURE IS BASED UPON A SHORT STORY, ETC. 15
upon a well-known historical episode, instead of upon a novel and duly copyrighted can acquire no exclusive right, and the proprietor may not enjoin the reproduction of another picture portraying the same historical event or sequence of events.
This rule is, of course, subject to the limitation that in the original novel or motion picture the events spoken of are purely historical. When these events are so interspersed with imaginative fiction as to constitute a complete story in themselves, the treatment may then be said to be original and a reproduction of the work with the imaginative fiction contained therein, constitutes an infringement.
Historical events are themes in the public domain. What is accorded protection in the case of themes in the public domain is the original development and treatment of those themes. It is scarcely possible for two people to develop one theme in the identical manner; for that reason it is unlikely that we will have an exact duplication on films of even a popular and well-known theme unless there is an intent to infringe.17
Section 3. — Where the motion picture is based upon a short story, sketch, poem, lecture, sermon or other kindred work.
The rights of the author of a short story, sketch, poem, lecture, sermon or other kindred work are identical with those of a novelist.18 The rights and liabilities which arise upon the sale of such work by the author or proprietor
17 See cases of infringement 13 Copyright Act of 1909, Secunder Sections 157 to 161. tion 1, subdivisions (a), (b), (d).