Variety (March 1921)

PICTURES Friday, March 4, 18S1 3AC 3K : • ' . m s OPERATORS' UNION ENJOINED FROM PICKETING FILM HOUSES PROTESTS SEIZURE OF RETURNED FILM BY U. S. Brooklyn Court Protection to Empress and Pulaski Owners, Whose Men Are Non-Union—Strikers Deny Using "Stench Bombs." Justice Kelby, In Tart 1. Special Term, of the New York Supreme Court, this week granted permanent Injunctions to two Brooklyn picture theatre owners restraining officers and members of the Moving Picture Operators' Union from picketing their houses or otherwise interfer- ing with their performances. The beneficiaries are the Pulaski Amusement Company and the C. A S. Amusement Company, the latter owner of the Empress Theatre, 887 De Kalb avenue. In his opinion, reciting the facts la the Empress case, Justice Kelby said: "Defendants are officers and members of the Moving Picture Op- erators Union, an unincorporated association. The papers show that the plaintiff has spent upwards of $15,000 in the equipment and dec- oration of its theatre, which It has maintained for a number of years. There is but one operator enfployed In the Empress Theatre. He does not'belong to the defendant union, nor has he at any time been a mem- ber thereof, and It further appears from his affidavit that he has no de- sire to become a member of the union or to go on strike. It further appears that he is contented to re- main in his present employment, under present wages and conditions, and that there is an existing valid contract of employment between him and the plaintiff. "There has been at no time any strike of employes in this theatre. There has been at no time any lock- out of the employes by the plaintiff. There Is no existing controversy be- tween the plaintiff and its em- ployes. Since about the first day of December, 1920, the defendant union has caused picket? to patrol up and down the street on the sidewalk Immediately in front of the entrance of plaintiff's theatre, and this for the purpose of inducing the moving picture operator to join the de- fendants' union and to break his contract of employment with the plaintiff. •'Coincident with the establish- ment of the pickets on patrol the pickets wore a sign containing the following inscription: 'Moving Picture Operators, Local 306, affili- ated with the American Federation of Labor, on strike." "On or about the fourth day of January, 1921, a noisome odor was created by some foul-smelling chemical by the use of what is de- nominated in the papers as stink balls, and again on January 28, 1921, there was a repetition of the foul odor, and, upon investigation, bot- tles containing some evil smelling •liquid wvre found on the floor of the theatre. "On December 16 and January G last past there appeared adver'.ise- ments In the Jewish Daily Forwaid, printed in Yiddish, the translation Of which reads as follows: 'The following moving picture places in Boroklyn are on strike. The mov- ing picture machine operators give notice that they have strikes on in the following place,' and enumer- ating, among others, the Empress theatre owned by the plaintiff. The answering papers admit the picket- ing, but deny that the pickets speak to anybody. The only alleged Jus- tification by the defendants for their activities is a denial of knowledge of any stinks created in the theatre and a istatemeirt that th* 'strike' arose out of t)ie fact that 'the plaintiff corporation and its other corporations own six theatres; that three of its operators were members of the defendant union.' Neither the names of the operators in ques- tion nor the names of the theatres are given by the defendants. The plaintiff denied that it owns any o*her corporations, but alleges that It is a distinct entity by itself. Un- der the state of facts, there being no existing strike ai this theatre, it has been held that picketing is a malicious and unlawful act. The motion U» continue the injunction is tl ereforc fcKVfiUd.'* In the »\iiaskt Amusement Co. case, he said: "The facts presented on this motion ate substantially the same as those in the case of C. & S. Amur.ui'^i* Co, Inc., igitosi the same defendants, decided herewith, the only difference being that the present operator has been In the employ of the plaintiff under a con- tract existing for the past four months, whereas in the other case the operator was employed for two years. For the same reasons, there- tore, the motion to continue the in- junction is granted." 24 FAMOUS FILMS COST ABOUT $3,000,000 Releases Cost Between $125.- 000 and $150,000. The twenty-four releases of Fa- mous Players-Lasky, including Cos- mopolitan productions for the months of June, July and August, show a $3,000,000 line-up, it is offi- cially estimated. Officials figure the productions averaged in cost between $125,000 and $160,000 each and only two pro- ductions in the list cost more than this average. They are "The Wild Goose" (Cosmopolitan's), and a William DeMille, "The Lost Ro- mance." The Ethel Clayton subject sched- uled for release August 21 next has been changed from "The Almighty Dollar" to "Wealth," while the title for the MacLean subject has been definitely established as "Passing Through," released August 14. In the same week William Hart's "The Whistle" will also be released. The price for the exhibitors on the latter picture has been altered, and with Famous has been changed from a classification from "E" to "F." The difference, according to Famous New York exchange, in this classification means about $60 on the day, with the price, also, rela- tive as far as the smaller houses are concerned. LOEWS ROO F PARTY Film Stars and Magnate See Helen Davis Specialty Thursday night a flock of film stars, headed by Marcus Loew, in- vaded the American Roof to wit- ness the "single" of Helen ("Smiles") Davis. Miss Davis has been included in most of the "parties" that N. T. Granlund uses to open a new Loew theatre, the stunt being to introduce the dif- ferent stars from the stage with Granlund pulling comedy ad lib. In the Loew party were Ruth Roland, Montague Love, Hope Hampton, Alan Holuban, Creighton Hale, Zena ICeefe and Crawford Kent. Will Mrrrlsey climbed into the orchestra leaders position and clowned while the party invaded the stage to be introduced by Gran- lund. Following the>|>erformance down- stairs in the theatre, the party went to supper at the Loew home. LOWER BIDJ-0R SCRIPT. Famous Offers $7,500; Thomas- Hsmilton Pries $12,500. There appears to bo depreciation in the market price of plays or stories suitable for film use judging from the cut in price of an A. E. Thomas-Clnyton Hamilton script called "30 Days," which Famous wants for Arbuckle. Thomas asks $12,500, the same price Joseph M. Scheck paid him Tor "Her Husband's Wlfo." Scheck wants "30 Days" for Bus- ter Keaton. Famous started with a bid ; of $5,000. and Anally the price went up to $7,600. It is likely, how- ever, that Kamons won't go over that. The piece In the "legit" ran 10 weeks in a Chicago playhouse. Fred Mblo Is to direct the next Louise Glaum picture, the scenario of which has been convicted by C. Gardner Sullivan. if is entitled "Daughters of Joj - ,** Cromelin Says Practice Aids Picture Pirates. COURT RULES FILMS OF PEOPLE IN NEWS EVENTS ARE PRIVILEGED The Treasury Department, the customs officials and the National Association of the Motion Picture Industry are at odds over tha recent action by government officials who disposed of a miscellaneous lot of film at auction which had been sent to the "seizure room" of the United States appraisers stores on being re- turned from abroad. The original number of lots totaled 28, five of which were dis- posed of for between $400 and $500. The remaining number which had arrived from abroad were consigned to dealers here. They were rescued from the auction by the quick action of their owners. The auctioning of these films bring to light a serious negligence on the part of American dealers, who, through neglect, permit films to pile up on the docks and as a, result they are brought to the seizure room of the custom house awaiting disposal by auction. The National Association declares this practice by the customs offi- cials permits valuable film to be sold and offers an opportunity to pirates in the industry, "who are watching every opportunity to get possession of films such as these, which they can put out with disregard to the original owners .and lessees." The customs officials after being interviewed by a Variety represen- tative declare that the fault Is en- tirely with the motion picture in- dustry. It was explained that in- coming consignments have been permitted to remain on the piers over the 48-hour limit allowed by the fire laws, fh more cases than not, shipments had been permitted to remain lodged in the customs warehouse despite official notifica- tion of arrival, both by it and the steamship concerns. The fire de- partment in turn has been after them, the customs official declared. Two Chaplin films, "Shoulder Arms" and "A Dog's Life," were al- most included in the auction. It appears that two prints each of the Chaplin films were sent over for en- tertainment purposes in the A. E. F., and were loaned gratis to the Red Cross. In returning the film the American Express is declared to have misplaced them, and r.ot until quite a period after notifica- tion of their having arrived were they found. In addition to the protest filed by the National Association with the Secretary of the Treasury, a formal protest was telegraphed to the Col- lector of Customs by Paul H. Crome- lin, chairman of the Exporters Di- vision, as follows: "On behalf of the motion picture industry, I protest emphatically against the sale of motion pictures, notice of which, dated February 21, has just been received, signed Peter F. Bradley, Acting Deputy Collector, to take place at 10 o'clock today, February 23, at the seizure room, 641 Washington street. Regardless of whose property may be involved this high-handed, arbitrary action practically without notice is unjust and unfair to a great industry, whose representatives have been as- sured in Washington sucn a course would not be taken and we insist and demand that the property of motion picture exporters and im- porters be protected against such confiscatory action as is announced in the notice of sale complained of." He also stated in this letter that it Is not customary in the motion picture industry to sell films out- right, but to lease them, and that the sale of any films by the cus- toms officials for unpaid duties is a dangerous practice. Decision Handed Down in "Eagle's Eye 9 ' Case Fa- vors Four Square Because Wettig Admits Action Was Not Fiction—Compared to Newspaper. The suit of F. H. Wettig, former Secret Service operative, against the Four Square Pictures, Inc., was dismissed this week by Justice New- burger in Part IV, Special Term, Supreme Court. This was an action for damages and a restraining order by which Wettig sought to enjoin projection of "The Eagle's Eye" serial, made by Warner Brothers during the war, because of matter in the eighth epi- sode which included a picture of Wettig and action in which he was a figure. The court, in reviewing the case, referred to the case of Jack Binns against the Vltagraph -company, in which the latter was enjoined from exhibiting a film be- cause it was proved to be pure fic- tion. In the present instance the case of Wettig, who figured in the conviction of Lieutenant Fay as a German agent, was held to be dif- ferent in so far as he admitted the pictures were actual reproduction of an event. The court compared such a picture to a newspaper pub- lication of a news photograph. Justice Newburger's decision was as follows: "The complaint alleges that in or about the month of January, 1918, the defendant publicly, and without the consent of the plaintiff, has been selling, displaying, circulating and using in the State of New York, for the purpose of trade and advertis- ing photographic films for use in motion picture machines, pictures of plaintiff; that by reason of cer- tain services rendered by him to the United States Secret Service and the Police Department of the City of New York in the conviction U. S. FILMS LOSING PRESTIGE IN EUROPE Foreigners Are Gaining in Our Production Total. WENGER QUITTING APRIL 15 Salary Issue with F. P. Said To Bs Reason. Walter Wenger, production mana- ger for Famous Players, la to retire from that post April 15. This time the report seems to be official. He has been receiving a salary of $400 per week, and it Is understood the reason for his retirement is the refusal to meet his request to raise his stipend to $1,000 a week. Louis P.. Mayer has secured the tervlcei of Lewis Stone for the lead- ing role in his forthcoming produc- tion. "Muffled Drums." Mr. Stone will be remembered hejf for his war* it "iiivar g BndL' America is gradually lojhig its grip on the worlds film market, is the sentiment among exporting cir- cles. The present year's indications show a perceptible depreciation in the demand for American made films by European, South America and other countries which have hereto- fore depended on us for as much as 95 per cent, of their product. In the present year England is using 20 per cent, of her own prod- uct, exporters say, while five per cent, is being contributed by French and Italian makers, and Scandina- via is supplying two per cent, to English exhibitors. America is still In the lead, it is said, but the reason is in the block system of booking which has a few years to endure be- fore expiration of agreements be- tween English exhibitors and Amer- ican producers. From 75 per cent, estimated to have been used by French exhibitors, American-made films have depre- ciated in 1921, 10 per cent. This slump is only temporary, it is be- lieved, with the rate of exchange making it almost impossible to deal with American producers who ex- pect payment for leasing the film on the basis of the dollar. In the meantime, a foothold is being se- cured by the French and Italian film there. Only Scandinavia, ft is saM; seems to be using the same amount of American films, the percentage be- ing between 80 and 85 per cent. Italy is one of the few countries that shows an almost total absence of American films. The percentage of United States products used there is two per cent. Australia, New Zealand, and the rest of the Antipodes are suffering from an oversupply of American films, with the result that the price for them is depreciating in the bid- ding. Oliver Morosco is to make the film version of "The Bird of Paradise." The piece has been a constant re- peater on the spoken stage for 10 years aid has earned a fortune for Richard Wnlton Tully, the author, and part owner of the plav with Morosco. t of Lieutenant Fay plaintiff gained great notoriety and fame, and that the pictures complained of Injured him In his good name and fame. "The film in which it Is claimed plaintiff's name and picture appear in episode 8 of a serial known as the "Eagle's Eye," which consists oC twenty episodes. The film was man- ufactured by Wharton, Inc., a cor- poration situated in Ithaca, N. T. t while the defendant was the dis- tributing agency, having succeeded to the business of M. H. Hoffman, Inc., with whom the original con- tract was made by Wharton, Inc. The defendant, in September, 1918, returned all the films to Wharton, Inc., and ceased distributing the same. "On October 26, 1915, there ap*- peared in the New York Herald a story of plaintiff's connection with the 8th episode referred to in the film, and on the witness stand he admitted that the article was true, and that he furnished the informa- tion to the reporter. In Binns vs. Vitagraph Co. (210 N. Y., 61), relied upon by plaintiff, it was held that the defendant had manufactured a picture, not of an actual current event, but mainly a product of tha 'imagination based, however, largely upon Information relating to an ac- tual occurrence as could be readily obtained, and the court, at page 57, refused to discuss the* question whether a person, firm or corpora- tion would be liable under the stat- ute for making and using a picture of a living person when it is in- cluded in a picture of an actual event in which such person was an actor, and such picture is a mere incident to the actual event por- trayed." In Humiston ▼. Universal Film Mfg. Co. (189 A pp. Div„ 4«7) Mr. Justice Smith says, at page 475: "In the Binns case (210 N. Y., 61) the presentation was not of pictures actually taken at the time of the occurrence of the events, but the film was taken in a studio, with actors dressed for the occasion, in order to present a representation of what might have occurred. It was held to be pure fiction, and not fact, and as such it was held to be with-, in the act, and the exhibition of that' film was enjoined. In that case Judge Chase said in his opinion: 'It would not be within the evil sought to be remedied by that act to con- strue it so as to prohibit the use of the name, portrait or picture of a living person in truthfully recount- ing or portraying an actual current event, as is commonly done in a single issue of a regular newspaper.* The representation of this plaintiff was puhlished in a single set of films, to be distributed at the same time to different parts of the coun- try as a news item. It was inter- esting when first exhibited. The fact that these films were widely dis- tributed, so as to be seen by many people, cannot make the offense any greater than would be the offense in a newspaper with a large circula- tion publishing the same picture or the same names in a single issue. The fact that the picture may have been seen by the same person more than once would not condemn the publication, because a single issue of a newspaper is often seen sev- eral times by the same person. "The exhibitor of these Alms, with the interest of the public in view, is not going to exhibit any news item after the interest in the Item has died out. Tho fact that this publi- cation is so markedly different from the publication which is recognized as the inspiration of the passage of the law in question in itself fur- nishes a strong* probability that it is not within the prohibitive act, and when the right to an injunction and to damages is based upon an act made criminal by the same stat- ute, the law of strict construction should lead us to interpret the act \ in favor of the party charged with! crime. "In view of the publication of the* 1 interview in the New York Herald,; and the testimony of the plaintiffj it Is apparent* that the picture of1 the plaintiff in episode 8 of the serial known as the 'llagla's live' was aj portrayal of actual events. The] complaint must therefore be dis«*j utisaid." . • .