Year book of motion pictures (1925)

in the case of Morosco vs. Manners, held thai the owner of rights to a dramatic production is not at liberty to produce the same play in motion pictures without the consent of the author, and that furthermore, the auhor who has licensed a dramatic reproduction is himself under a disability to produce the play in motion pictures since in doing so he competes unfairly with the owner of the rights to the dramatic production The lower Couyt thereupon awarded to the nlaintiff all profit which the latter . received by virtue of the motion picture contract. Justice Cardoza in his very able opinion in the Court of Appeals, reaffirmed the propriety of the holding in Morosco vs. Manners, putting Underbill and Herndon in the position of author and owner, respectively. Since both Underbill and Hemdon were interested in the dramatic production and neither could produce the play in motion pic tures without the consent of the other, it was improper to award to the plaintiff all the profits from the motion picture contract received by Herndon and since the parties were engaged in a joint yenture for the purposes of the dramatic production, the joint venture was to be deemed to survive and continue in respect to the motion picture income. This income was to be treated as any other income to the joint venture and distributed in accordance with the terms of the joint venture contract theretofore existing between the plaintiff and the defendant for the use of the dramatic production and the direction of the lower Courts that all profit derived by Herndon was to lie paid over to Mr. Underbill was in error. Simonton vs. Gordon Another interesting decision of the year may be found in the case of Simonton vs. Gordon, et al., 297 Federal Reported 625, in which case Federal District Judge Winslow held that the play "White Cargo" was not an infringement of the copyright of a book entitled "Hel's Play ground," though many similarities could be found between the book and the play. The decision is interesting because of the hard and fast rules framed by Mr. Justice Winslow for the purpose of determining what constitutes an infringement of copyright. "The test of infringement," said Mr. Justice Winslow (p. 626). "where it is alleged in such cases, is whether the association and grouping of these characters and incidents is such as to make a new conception or novel ar-angement. so as to warrant the inference that the subject-matter and local color are responsible for the supnosed similar ity, or whether, on the other hand, the conception of the author seeking protection has in fact been appropriated by the alleged infringer. As was well said bv Tudge Maver in Stevenson vs Harris (D. C). 238 Fed. 432, at page 436: "It will never do to hold that, because an inci dent here or there is used in the later production which was used in another relation and situation in the former copvrisdited book or play, therefore the later production infringes the copyright of the former." The foregoing expressions will reveal that whether or not a play infringes upon a book is properly a quest'on of fact to be de'ermined upon an examination of each case and the fact that a play may contain incidents simi'ar to thosf in a book previously published and copyrighted does not necessarily constitute an infrinrement. Justice Winslow, however, does not stop with the foregoing but proceeds in his opinion with the fol'owinp' statement certain to be a source of further litigation in these cases: "hut the question is whether the writer of the play has used tV"» work of thp author of the book without any independent work himself." Surely it cannot be contended that this should be the r.ole test of whether or not a play infringes upon a copyrighted hook for any such ruling rather than serving as a deterrent to unlawful infringement will pn far toward encouraging same. Should a plagarizer of plot, scenes and characters be permitted to use the property of another merely because he has done some little work on It's own account? The law in dealing with chattels does not protect the converter who has intentionally confused his chattels with those of another, and a plagiarizer should be given no greater protection. Independent work may be a fact in detrmming whether or not there has been an infringement hut certanly it must not be the sde and absolute test, for thert is hardly an infringement even when intentional which is not accompanied by some independent wcrl: on the part of the infringer. WILLIAM KLEIN A number of judicial opinions have been handed down by our New York courts during the year 1924 which. affecting the theatrical and motion picture industries as they do, are worthy of incurring the interest and study by both. To dwell upon all of thtse would entail passing beyond the proper limits of this article and I shall merely attempt to analyze the more important and interesting adjudications of the past year. Perhaps the most important decision in recent years affecting the movement of theatrical properties in transit was that in the case of the Winter Garden Co. against The Globe & Rutgers Fire Insurance Co. This case finally and definitelydecided the rights of theatrical managers under the ordinary form of policy which for years had been used to insure theatrical property against the ordinary risks of travel. Had the Insurance Company been successful in its defense, theatrical managers would have been forced to revolutionize their method of transportation of theatrical prop erties or else conduct their business without the benefit of insurance. The suit arose out of an insurance policy in which the Globe & Rutgers Fire Insurance Co., insured the Winter Garden Co. on the scenery, costume and theatrical properties used in the production known as "The Passing Show of 1921." against loss by fire, collision, etc. While this policy was still in effect the properties used in "The Passing Show'' were destroyed by fire en route for Toronto to Montreal, Canada, over the Grand Trunk Railway. The Winter Garden Co. proceeded to file its claim and asked to be indemnified under the terms of the policy. After some delay, the Insurance Company refused to pay. It based its refusal on the ground that the Winter Garden Co. had violated an essential term of the policy and had thereby forfeited its right to indemnity. The clause of the policy of which the Insurance Company alleged a violation was the following p ovision : "The assured may accent without prejudice to this insurance the ordinary bills of lading issued by the carrier but it is agreed that the assured shall not enter into any special agreement with the carrier releasing them from their common law or statutory liability." The Winter Garden Co. denied that it had violated this provision and brought suit on the policy in the United States District Court for the Southern District of New York. The case was bitterly contested by both sides before Judge Learned Hand, one of the ablest Judges on the Federal Bench. The plaintiff was represented by William Klein. The plaintiff showed that it carried its theatrical properties by special baggage trains because this was the only practical method of carying such properties wi*h a road show and that this method of transportation was the customary and usual one in the theatrical trade. It further showed that in connection with these movements it became necessary to sign agreements with the Railroad Companies releasing them from liability bevond the sum of $2,500.00 The Insurance Company declared that these agreements were in violation of the provision of the policy forbidding special agreements releasing the carrier. Against this the Winter Garden Co., contended, and successfully, that this release of the carrier was an integral part of the ordinary bill of ladings used by all Railroads for special baggage cars and that Railroads would not supply special baggage cars unless such an agreement was signed. It further showed that under the terms of the Interstate Commerce Act. it would be unlawful for the carrier to supply special baggage cars upon any other terms. In 616