Harrison's Reports (1928-1928)

Eateved as secoad-oi&ss matter January 4, 1921, at the post office at New York, New York, under the act of March 3, 1879, Harrison’s Reports Y early Subscription Rates : United States $10.00 TJ. S. Insular Possessions 12.00 Canada and Mexico.. 12.00 England and New Zealand 14.50 Other Foreign Countries 16.50 25c. a Copy 1440 BROADWAY New York, N. Y. A Motion Picture Reviewing Service by a Former Exhibitor Devoted Exclusively to the Interests of Exhibitors Its Editorial Policy: No Problem Too Big for Its Editorial Columns, if It is to Benefit the Exhibitor. Published W eekly by P. S. HARRISON Editor and Publisher Established July 1, 1919 Tel. : Pennsylvania 7649 Cable Address : Harreports (Bentley Code) A REVIEWING SERVICE FREE FROM THE INFLUENCE OF FILM ADVERTISING Vol. X SATURDAY, JUNE 23, 1928 No. 25 An Analysis of the 1927-28 Substitutions---No. 2 (Continued, from last week) Last week I informed you that I would print the second part of the article “Two-Dollar ‘Hits’ and ‘Flops’ ” this week. But in order to clean up the substitution analysis of every company’s product, I am again compelled to postpone that article until I finish the substitutions. Since the appearance of last week’s article, which dealt with substitutions, I have received some letters from exhibitors asking me to define their rights in the matter of substitutions. Some of them asked me if, when I say that "It is a clear story substitution,” they can refuse to accept such picture without violating their contract. My answer is this : The foundation of a picture is the story or the author, whichever is given with the title at the time of the sale of that particular picture ; or the theme, if sufficient facts are given to determine the nature of it. When that story, or the author, is changed, the foundation is removed. In other words, the picture is no longer what you bought. For this reason, you have a perfect right to refuse it without breaching your contract. ( If the picture was part of a star or director series with no stories, then the star or the director sold is the foundation.) The other question is this : When an exhibitor has given to the exchange play-dates thinking that it is the picture he bought and then he reads in Harrison’s Reports that such a picture is a substitute, has such exhibitor the right to cancel the dates and refuse the picture ? My answer is that he has a perfect right to do so, for this reason : When he was notified by the exchange that play-dates for that picture were available, he, thinking that that picture was contained in his contract, gave the exchange play-dates in good faith. Later he discovered that the picture was not what he had contracted for, and decided that he did not want it. Remember that, where a substitution is concerned, there is no contract in existence. The exchange, therefore, cannot force an exhibitor to accept something he did not contract for. Before starting on the remainder of the substitutions, let me define how you should proceed in the matter of substitutions : When you read in these pages that a particular picture is a substitute, if the title is the same, you may undertake to prove that it is a substitute ; but if the title has been changed, then it will be up to the exchange to prove that it is not a substitute. Accordingly, in case you are haled before the board of arbitration for failing to give the exchange playdates, your procedure should be as follows : (A) If the title of the substitute is the same as the title contained in the contract : The exchange writes you demanding play-dates. You write back and say that it is a substitute, and therefore you don’t want the picture. The exchange refers the matter to the Film Board of Trade. The Secretary of the Board sends you a notice that the exchange has entered a complaint against you for failing to accept a particular picture, demanding your answer. You answer that the picture is a substitute and therefore you do not want it. The Secretary writes hack and asks you to appear before the board of arbitration on a certain date when your case will be heard. You write back and ask the secretary to demand of the distributor to present at the hearing: (1) A copy of his Annual Announcement, whether in the form of a trade paper insert or a Campaign Book published by his Home Office. (2) A complete set of the company’s Work Sheets. (3) A press-sheet for that particular picture; and (4) anything you think it is necessary for you to establish your claim. In the meantime, write to this office and get a photastatic copy of the Work Sheet. Suppose when you appear before the board, you find that the exchange has failed to present these documents, either through the negligence of the' film board secretary or through the unwillingness of the exchange to present such records, then you should protest, demanding, first, the postponement of the case ; secondly, the subpoenaing of these records by the board of arbitration (the arbitration board has a right, by law, to subpoena such records. When the exchange manager refuses to present them, he is in contempt of court. The arbitration board can, in such an event, make an application to the Supreme Court to certify his guilt and to prescribe the punishment.) When the title of the substitute picture is the same as that contained in the contract, I said “you may” undertake to prove that it is a substitute ; but you are not obligated to do so. Remember that, as an elementary point of law, the burden of proof rests always with the plaintiff. In civil cases, the courts always so charge as a matter of routine. But I chose to suggest to you to attempt, in such cases, to prove that it is a substitute only because I feel that in this manner you afford to your interests a greater measure of protection. If you so choose, you and your counsel may fold your hands and let the exchangemen prove that the picture is not a substitute. All you and your counsel have to do is to ask questions. In case the arbitration board refuses to act, then it should be clear to you that such board is “packed,” and it will be suicide for you to remain until the case is finally disposed of. Leave, and take the following steps : First, write to this office ; I may be able to get the Home Office of the distributor to take action at this end, to prevent an injustice. Should the Home Office refuse to act, then it will be up to you to enter a complaint, either with the district attorney of your exchange city or with the attorney general of your state, on the ground that through false advertising they are trying to compel you to accept something you did not originally buy. It may even be necessary for you to take court action. According to CAHILL’S CONSOLIDATED LAWS OF NEW YORK, 1926, you are entitled to take such action on two grounds : first, because of evident partiality of the arbitrators ; and, secondly, because the arbitrators, in refusing to subpoena the records to postpone the hearing until such records are presented, are guilty of misconduct. (B) In case the title of the substitute picture has been changed, then the burden of proof rests upon the exchange. In other words, it is up to the exchange to prove to the arbitrators that the picture it is delivering is the picture you bought. And it cannot do that, because of the proof I have printed in these columns for your benefit. In case the board of arbitration should show partiality to the exchange and, despite your arguments and your proof that the picture is a substitute, renders a decision against you, you still have the right to go to the district attorney, or to the attorney general of your state, to enter a complaint on the ground of false advertising. You may also notify this office so that I may take whatever steps I can to protect your interests. The exchanges have their Home Offices. I want to be your Home Office, where you can tell your troubles and be sure to get a hearing. This paper is devoted to your interests heart and soul. Let me have your complaint. Be sure that you are right in your facts, for unless you are right you weaken me when you ask me to defend a wrong case. But when you are right, this paper will go all the way for you. Metro-Goldwyn-Mayer Substitutions TIM McCOY SERIES: The pictures of this star, six in number (Nos. 844, 845, 846, 847, 848, and 849) were sold as a star series. They are being delivered, therefore, as they were sold. ( Continued on Last Page)