The Film Daily (1928)

THE s^ ^^9^^ DAILV Sunday, May 13, 193 IJ The New Exhibition Contract Analyzec HOW IT COMPARES AND DIFFERS WITH THE OLD The new standard exhibition contract which went into effect generally May 1 has been analyzed by Gabriel L. Hess, counsel of the Hays organization. In the process, comparisons with the now discontinued agreement are made and the differences between the new and the old form pointed out. The concluding portion will appear in an early issue of THE FILM DAILY. Hess's discussion follows: Article first: Warranties in addition to those in the current contract provide that ail additional clauses (which must appear in the schedule) must be approved by the Contract Committee. If any additional clauses which have not the approval of the Contract Committee are added they must appear upon a rider attached to 'he contract, but will be of no effect unless the rider is signed by the exhibitor, nor if their provisions are inconsistent with those of the 22 numbered articles of this contract. Further reference to additional clauses will be made under the heading "Approved Additional Clauses." Article Second: In the current contract and in the new one it is provided that the pictures be exhibited within one year from the first play date, but the new contract permits by agreement written in the schedule a longer or shorter period. For example, in a contract of 52 pictures it may be agreed that two pictures each week shall be exhibited (a period less than one year) provided such agreement is expressed in writing in the schedule. Or in the case of a contract for 40 pictures it may be agreed that one picture shall be exhibited every other Monday commencing (e. g.) on Oct. 1, 1928, necessarily requiring a longer period than one year to complete the showing of all pictures. Such provisions are in respect to exhibition dates and when set forth in the schedule supersede the one year provision. The last sentence of this article is a new provision limiting the right to exhibit the pictures in but one theater. For example, if a contract provides for the exhibition of the pictures for two days at the Strand or Rialto theaters, the pictures may not be shown one day at the Strand and the other day at the Rialto. Each picture may be shown only at one of these theaters for two consecutive days unless in the schedule there is a written provision setting forth an agreement for a different arrangement. In this connection, when two or more theaters are specified 'in one contract, to avoid disputes care should be exercised to provide that the word "or" is always used between the names of the theaters. Neither the word "and" nor a dash ( — ) should be so used. Paragraph (b) of this article is a new provision which excludes from a contract all pictures (excepting those which have been road-shown) which have not been generally released during the releasing season or year specified in this paragraph, unless the exhibitor gives to the distributor written notice within 30 days after the end of the stated re1 leasing season or year that he desires all such pictures delivered to him. If after such notice any cf such pictures are generally released at any time during the following two years they must be delivered to the exhibitor. If they are not generally released within two years from the end of the releasing season specified in the contract they are excluded from the contract and all claims to them are waived by the exhibitor. If the exhibitoi within the 30 days does not give written notice that he desires all such pictures and any of them are thereafter generally released they may be licensed by the distributor to any other exhibitor free of all claims of the exhibitor. If there are. for example, four out 52 pictures which have not been generally released during a releasing season and the exhibitor desires these four pictures, he must give a written notice to such effect but he may not select one or more of the four, he must elect to take all of them or they will be excluded from the contract. For example, if the distributor's releasing season is from Sept. 1, 1928, to Aug. 31, 1929, and 52 pictures have been contracted for and but 48 have been released between those dates, the four that have not been generally released are automatically excluded from the contract unless the exhibitor notifies the distributor before Sept. 30, 1929, that he desires all of the four pictures not so released. Even if such notice is given and any of such pictures are not released by Aug. 31, 1931, they will be deemed excluded from the contract. The provisions of subdivision (b) relate to the period within which the pictures must be released, and have no bearing upon the period referred to in subdivision (a), which is the period within which they must be exhibited. Article Third: This is substantially the same as Article Third of the current contract. Article Fourth: The provisions of this article are exactly the same as the provisions of Article Fourth of the current contract. Article Fifth: This article is the same as Article Sixth of the current contract. (Article Fifth in respect to percentage bookings has been omitted from the numbered articles of the new contract.) Its provisions changed in some respects and with additions appear as one of the "Approved Additional Clauses" which will be commented upon hereafter. Article Sixth: The first two sentences of this article are exactly the same as the first two sentences of Article Seventh of the current contract excepting the word "last" has been substituted for the word "first," thus providing that the period of protection shall be calculated from the last day instead of from the first day of the exhibition period contracted for. If therefore 14 days' protection is granted and the last day of the exhibition of a picture is Sept. 10, the protection period ends at midnight on Sept. 24. The remainder of this article is new matter and provides that if protection is given against one or more theaters and from the grant of protection it can be reasonably inferred that it was the intention of the distributor to grant protection against all theaters in the immediate neighborhood or vicinity of the exhibitor's theater, then unless a contrary intent is expressed in the schedule the protection granted will be held to cover any theater that is opened in such neighborhood or vicinity after the date of the contract. This applies to new theaters as well as closed theaters which are reopened, provided, of course, the intention to cover new and reopened theaters can be gathered from the protection provision in the schedule. Therefore if it is intended that a new or reopened theater is not to be included in protection, it should be so specifically stated in the schedule. Article Seventh: This article is a consolidation of Articles Eighth and Tenth of the current contract slightly amended and with new matter. By the addition of the words "suitable for exhibition" the distributor is obligated to deliver prints in a condition which can be said to be reasonably suitable for exhibition. The time of delivery of prints has been more definitely fixed, making it incumbent upon the distributor to ascertain from the carrier to whom delivery is made if the carrier's time schedule followed in the usual and ordinary course of business permits the delivery of prints at the exhibitor's theater or the place where such theater is located at least one hour before the usual time the exhibitor opens his theater. If the carrier's time schedule will not permit of delivery to be made at such time then delivery to the carrier must be made by the distributor in sufficient time so that delivery can be made by the carrier at least one hour before the exhibitor's usual opening time. The provision in the current contract (Article Tenth) requiring the exhibitor who claims damages because of the failure or delay of a prior exhibitor in forwarding a print to assert such claim against such delaying exhibitor has been omitted. Such claim may now be made by the exhibitor directly against the distributor. In this connection see Subdivision 2 of Rule V of the Rules of Arbitration which has been added to the rules giving the dis tributor the right to require the Board of Arbitration to bring the offending exhibitor before the Board of Arbitration and make him a party to the same arbitration proceeding in which is involved the claim of the exhibitor against the distributor. And also providing that if the offending exhibitor is found at fault, the Board of Arbitration is obligated to make an award against the offending exhibitor in favor of the distributor at the same time that the award against the distributor is made in favor of the complaining exhibitor. Article Eighth: The provisions of this article are the same as Article Ninth of the current contract, excepting that they have been rearranged with a view of making them easier to understand. A new and important addition is that which makes a notice of availability ineffectual unless a print of the photoplay for which an available date is fixed in the notice' is in the exchange out of which the exhibitor is served at the time the notice is mailed to the exhibitor. For example, if a notice of availability is mailed to an exhibitor on Oct. 1 fixing Oct. 15 as the date upon which a picture will be available and a print of such picture does not arrive from the laboratory, or from another exchange, or other place from which released prints are shipped to an exchange in the usual and ordinary course of business until Oct. 10. it would be necessary on or after Oct. 10 to mail a new notice of availability to such exhibitor and the first available date that can be fixed in the new notice, provided it is mailed on Oct. 10 is Oct. 25. To avoid rendering a notice of availability ineffective, such notice should not be mailed until prints are in the exchange. In the paragraph of this article which provides for the designation by the distributor of play dates if the exhibitor fails to select them within the 14 day period after the mailing of a notice of availability a new provision has been added which fixes the beginning of the period of protection, if any granted, as the 15th day — instead of the 30th day — of the 30 day period of availability. For example, under a contract providing for a three day run and 30 days' protection, if a notice of availability is mailed Jan. 1 fixing Jan. 15 as the date of availability, the exhibitor may before Jan. 15 select dates within the 30 day period beginning Jan. 15. If the exhibitor fails to so select dates the distributor can designate dates at any time by mailing 14 days' notice of such dates. If the distributor then designates Feb. 15, 16 and 17, the period of protection begins on Jan. 30 and ends March 1, cutting down the exhibitor's protection form March 19, which he would have had under the protection clause of his contract had he not failed or refused to select dates. The following illustrations cover all the provisions for the designation of play dates: Oct. 1 Distributor mails notice of availability. Oct. 15 Is the earliest available date that can be designated because at least 15 days' notice must be given. Oct. 15 Is the last day for the exhibitor to give dates in writing to distributor because he has 14 days to do so after receiving the availability notice. Oct. 15 to Nov. 15 This is the period from which the exhibitor must select dates because he has a 30 day period from the availability date, (Oct. 15,) within which to select dates. If a date selected by the exhibitor is not open to him, he must immediately choose another date within the same 30 day period. If he does not do so, the distributor has the right to designate it for him. Nov. 15 Is the date which the exhibitor selects but he is informed it is not open for him. He then fails to choose another date within the same 30 day period. Nov. 29 to Dec. 29 The distributor may then designate any date within this period. (Nov. 29 is at least two weeks from the date first chosen by the exhibitor (Nov. 15) and Dec. 29 is six weeks from that date). The distributor is limited by these two dates. The first one is not earlier than two weeks and the second is not more than six weeks from the date chosen by the exhibitor. When the distributor thus selects a date for the exhibitor, he must give 14 days' written notice to the exhibitor. If the original date chosen by the ( hibitor is not open to him and he sele< another date within the same 30 day peri but no other date is open, then the exhibit can choose the date. Nov. 29 to Dec. 29 The exhibitor may select any date within this period. (Nov. 29, in the example, is at least two weeks distant from the last day of the 30 day period (Nov. 15) and Dec. 29 is six weeks from the last day of that period). The exhibitor IS limited by these two dates, the one not earlier than two weeks, the other not more than six weeks from the last day of the 30 day period. The exhibitor must exercise this right to choose his date immediately after learning that no other dates are open to him during the same 30 day period. Nov. 29 to Dec. 29 If the exhibitor does not exercise this right immediately, the distributor may designate a date within the same period by giving the exhibitor 14 days' notice Dffll 1 in writing of such date. If after the original mailing of the avail bility notice the exhibitor does not with the 14 days given him select any dates t distributor may then at any time thereaft designate the dates. Oct. 29 Is the earliest date that -the distributor may then designate. The ex k f« hibitor had up to Oct. 15 to choose a" date. Having failed to do so. the dis-' tributor may on that day select a da1~ by giving 14 days' written notice of date selected. The only limitation is that the distributor must not designate a day which is before the first availability date (Oct. IS). When the e.xhibitor fails to select datif te( after the notice of availability has been sei rw to him, the distributor in assigning dates fl subject to the following limitation: Nov. 30 If another exhibitor has S "run" immediately ahead of the exhibitor and has played the picture, the distributor must assign a date within 45 days after the availability date first given. In this example, the availability date is Oct. 15. Nov. 30, which is 45 days later, is therefore the last date which may be assigned by the distributor. 'r itts icon! ) liav exac e a Am City title Signs pDai to assign dates because the exhibitor b ignored the availability notice, the prott tion period in the contract is affected follows: OCCl Jst Itt it Assuming Exhibitor X has seven dayi protection over Exhibitor Y, Oct. 15 to Nov. 15 Is the 30 day period during whicB X may chose a date. He fails or refuses to do so Nov. 15 Is the date that the distributor may and does assign. Nov. 16 Is the first date that Ex' hibitor Y may play. Even though X has seven days' protection over 7, Y can play the next day after X plays. For the following reasons: X's protection is computed from the 15th day of the 30 day period (Oct. IS W to Nov. 15). The 15th day is Oct. 30. fcient Counting seven days' protection from { Oct. 30 makes the last day of protec ,, tion Nov. 6. If X plays the picture on •Jl I Nov. 15, Y may therefore play it on the very next day. The protection period Ifn of X expired Nov. 6 enabling Y tol play on Nov. 16. Ralp' ihDc tkir latta It his I time If in computing the ISth day as above j" ma *eliict( illustrated X's protection period expired on Nov. 22, then Y could play beginning on Nov. 23. It should be kept in mind, however, 8 typf that only the protection period is affected by the failure or refusal of an i, exhibitor to choose dates. "The "run" ItjUa is not affected. In other words, X has | not lest the right to play ahead of Y. He has merely lost the right to have full advantage of his protection period. However, an exhibitor loses both his run as well as his protection if he fails or refuses to pick up the print of a picture on the date assigned to him by the distributor. Article Ninth: This article is the san as Article Eleventh of the current contra with the following changes and additions: The sum of "four cents" per foot at I GarJ (Continued on Page 12) la 'km tiair h 1\V, six I for] ^ sin srin