Year book of motion pictures (1925)

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The Ruben case has not perhaps satisfactorily expounded this legal principle, but the case is now on appeal, and it is possible that the Appellate Term may render a decision that will clarity the law on this subject with respect to motion picture productions, for we all know that the loss of an hour or two in the taking of a stupendous feature picture may amount to many thousands of dollars, and the absence of an artist from the cast for that short period would be equivalent to the absence from work for a much longer period in any other line of occupation. There should be something clear on this situation and it may be that the Ruben case will furnish the vehicle, Tt should be watched with interest in the appeal courts. The So-called Music Tax on Theaters The fight waged by the American Society of Composers. Authors and Publishers to compel motion picture theaters, as well as proprietors of other forms of entertainment, to refrain from pub licly performing for profit copyrighted music without licenses, has been quite successful, and a number of decisions in various parts of the country have fortified the Society in its contention. In Philadelphia, about thirty cases bad been brought against as many proprietors of motion picture theaters, and these had been sent to Special Master Walter C. Douglass, for the purpose of taking evidence. The Special Master reported in favor of the plaintiffs (music publishers belonging to the Society), and recommended an iniunc tion, and awarded $250.00 minimum damage in each case, besides counsel fee of $150.00 and the costs of the hearing. The recommendations of the Special Master were affirmed by Judge Thompson of the Federal Court in Philadelphia, and it costs the exhibitors in Philadelphia roughlv about $20,000.00 to find out that they had no right to play copyrighted music without obtaining licenses therefor. A number of similar cases were tried in Missouri this Spring, and Judge Valkenburgh handed down a decison similar to Judge Thompson's decision and a'so awarded damages and costs against each defendant, the minimum damage being $250 00 in each case. In an action in Boston, brought by a member of the American Society for infringement. Judge Low^ell found the proprietor of a dance hall guilty of infringement and awarded $250.00 minimum damage. In an action in South Carolina, Judge Cochrane found the owner of a motion picture theater liable for infringement and awarded $250.00 and $100.00 counsel fee and costs against him. It is manifest that the exclusive rights of copyright proprietors cannot be infringed by owners of motion picture theaters, and that the Courts throughout the country are uniform in their decisions. . i The Radio Situation This year sees the completion of the first skirm ish between the radio industry and copyright proprietors. The radio industry having suddenly assumed gigantic proportions, has seen fit to laydo wn the gauntlet to authors, composers and publishers, and to maintain that it has the right to transmit or broadcast anything it choses over a microphone, without regard to copyrieht protection. The radio industry claims that the copyright law as worded does not prevent broadcasting. The struggle was a bitter one and was waged throughout the year in every form Early this Spring, the radio industry had a bill iniroduced into the Senate, known as the "Dill Pill." which proposed to amend the Copyright Act so as to make broadcasting exempt from the operation of the Act. Hearings were held before the Patent Committee on this bill and the representatives of the music industry, which was primarily affected, appeared before the Committee. After the Committee heard all of the parties and read all the voluminous briefs and documents submitted, it refused to pass the bill out of Committee at this time. A similar bill was introduced about the same lime in the House of Representatives, and hearings were again held before the Committee of that House and the bill never saw daylight. The broadcasters, however, have not given up the fight. In Cincinnati, J. H. Remick & Co., a member of the American Society, brought a suit against the Automobile Acessories Co., claiming infringe nient of one of its numbers by broadcasting. The defendant thereupon moved to dismiss the complaint, and Judge Hickenlooper decided that radio broadcasting was not per se an infringement of the plaintiff's performing rights, and he threw out the complaint. An appeal has now been taken and is on file and should come up about the middle of December, in the Circuit Court of Appeals. Sixth Circuit. The decision of that court will be watched with great interest as it means everything to the authors, composers and publishers of the country. Another angle of that fight has been waged in New York City. Here, Remick commenced an action against the General Electric Company, claiming an infringement and asked for a temporary injunction. Judge Knox held that while he would not grant a temporary injunction in this particular case, nevertheless, broadcasting could constitute an infringement. This case was complicated by the fact that the broadcasting had been done from the General Electric Company studio at Schenectady, which had wired in on a microphone at the Hotel Kenmare, at Albany. The defendant claimed that it had a written license or permission to play the particular composition which was claimed to be infringed, and for that reason, the court held that there might be a doubt as to the plaintiff's right to recover; but the court intimated strongly that with this question out of the case, there certainly could be such a thing as infringement by the broadcasters, so that the decision was not altogether against the authors, composers and publishers. There are now two decisions in favor of the author, to wit — Judge Lynch's decision which came down last year in the Bamberger case, and Judge Knox's decision, and there is one decision in favor of the broadcaster, Judge Hickenlooper's decision. The law will soon be clarified on that subject. HOUSE GROSSMAN & VORHAUS By A. John Elder In a review of the legal decisions of the year 1924, of importance to the Film Industry, reference must again be made to the case of Underbill vs. Schenck and others, commonly known as "The Passion Flower" case, mention of which was made by Mr. William Seabury in his learned article appearing in the Film Year Book of 1924. This case which had been having the attention of the Courts for two years and had already been the subject of careful scrutiny and enlightened opinions by the Supreme Court and the Appellate Division, was finally passed upon by the Court of Appeals and a lengthy opinion rendered by Mr. Justice Cardoza, which is of vital importance in the motion picture industry. The facts of that case in so far as they are essential for our present purpose, are as follows : The plaintiff Underbill, has purchased the dramatic rights to a certain play hv Jacinto Bena vente, and after such purchase Underhill entered into a contract with the defendant Herndon whereby Herndon was permitted to enjoy the dramatic rights upon a royalty arrangement with Underhill. Subsequently. Hern_don, without the consent of Underhill, entered into a contract for the motion picture rights to the play, which contract the Courts held could not be entered into without the consent of Mr. Underhill since the exhibition of the motion picture would com pete unfairly with the dramatic production, and cause a loss to Mr. Underhill. the owner of the rights to the latter and could therefore be restrained by him. The Court of Appeals sustained the injunction but in fixing the extent of the plaintiff's recovery adopted a measure of compensation radically different fro tnthat adopted by the lower Courts. The lower Courts in adhering to the rule passed by the United States Supreme Court 615