Harrison's Reports (1928-1928)

180 HARRISON’S REPORTS N ovember 10, 1928 distributor knows months before the expiration of the contract whether he is going to make them or not, he should be required to inform the exhibitor of it at least sixty days before the expiration of the contract; or the exhibitor should be given the right to accept or reject these pictures within ten days after notice of availability is sent to him. Thus the burden should be made to rest, as it should, on the shoulders of the producer-distributor, and not on those of the exhibitor. As said before, the exhibitor hasn’t the facilities of sending letters — at least not as many facilities as the distributor. To the exhibitor, writing a letter is an effort — it is a day’s work; whereas it is a relaxation to the distributor, who has but to dictate it. Besides, unless the distributor is made to send the notice of non-production of a picture at least sixty days before the life of the exhibitor’s contract expires, a chance for fraud is given to the producer-distributor. If he should make the picture towards the expiring days of the bulk of his contracts, if the picture should turn out to be excellent, the distributor could hold the picture back and take a chance with the exhibitors’ forgetting to send their notices of either acceptance or cancellation. Similarly the clause that relieves the distributor from the obligation of delivering pictures not released within two years should be eliminated, giving the exhibitor the right to accept or reject such pictures at any time. Since the distributor does not guarantee production or delivery of contracted pictures, the exhibitor should at least have the right to require delivery if the picture should be produced. Sixth Clause: This clause guarantees the exhibitor his “protection” or “run,” but it does not provide with penalty in case the distributor violated it. The damages are always uncertain and difficult of computation. I know of a case upstate (New York) where a distributor violated the protection of an exhibitor, who paid $750 for the picture, and the exchangemenarbitrators, although they acknowledged the breach of the contract, offered to award the exhibitor one dollar damages. The exhibitors, of course, deadlocked the board, and the seventh arbitrator awarded fair damages to the exhibitor. There should be a provision in it to penalize the distributor three times the amount of the rental. This clause provides also that the protection period shall run from the last day of the exhibition of the previous run. Suppose that you play the pictures, say, fifteen days after the first-run exhibitor, and a particular picture turned out to be so good that the first-run exhibitor keeps running it three or four weeks. You have no way to force the exchange to deliver that picture to you until after the first-run exhibitor milked your locality dry. The protection should be computed from the first day of the run. EDITOR’S NOTE: While the provisions of zone protection are not unsatisfactory, you should be careful to define the area of the protection by geographical limits instead of by theatres so as to avoid the possibility of confusion. State, for example, “The East side of Street,” or “The North,” or “The South,” as the case may be; do not mention only the name of the street, for an award may be decided against you if a theatre should happen to be located on the opposite side of the street, away from your theatre, by making it possible for the distributor to assert that that theatre is not included in the boundary of your zone. Such a thing has happened in this city. Seventh Clause: This seems to be a satisfactory clause, but exhibitors should be warned that in order for them to take advantage of its provisions they should (1) use the same carrier as is used by the exchange, and (2) to be sure to get a receipt so that in case the print is lost while being returned to the exchange they may comply with the provisions of the contract. Those that ship film by parcel post should request for the green tags, which can be obtained for one cent. Instructions will be given them by the postmasters as to how to use them. They may obtain also a receipt by insuring the parcel for the minimum insurance fee, which is five cents. Eighth Clause: This clause provides for the manner whereby pictures may be play-dated. The last sentence of paragraph (1) reads as follows: “Such notice [the play-date availability notice] shall be of no effect unless prints of such photoplay are in the exchange of the Distributor from which the exhibitor is served.” The first paragraph of the 18th Clause has a prize joker in the expression “delays in production.” A new joker has now been added. It is acts such as these that make one doubt the sincerity of the producers. When they sell you pictures of certain run they certainly know whether they will have prints in the exchange or not. By telling you, then, “We shall deliver the pictures we sell you provided we have prints in the exchange” is insincere and even fraudulent. Why are they not honest about it and frame the clause to read something like: “We sell you these pictures but we reserve the right to let you have them whenever we please?” It would mean the same thing and would tell what they really have in their mind. This reservation should he eliminated. There is another thing that is wrong with this clause; it does not provide when the distributor shall mail the notice of availability. There have been arguments on both sides in this question but it is doubtful if any hard and fast rule can be imposed on the distributors. The only fair way would he to let the arbitration board determine when a “reasonable time" has elapsed after a picture has been delivered to the exchange so that the exchange may be compelled to give the exhibitor a play-date availability notice. If the producer-distributors should think that arbitration is a fine medium to settle disputes with, they should not object to submitting this question to arbitration. Another provision that this clause should contain is the compelling of the exchange to give notice of availability simultaneously to all exhibitors that have bought equal-run pictures. This will make it impossible for the exchange to favor one second-run exhibitor over another. Tenth Clause: This is a substitution clause, which has been put into the contract as a result of the Trade Practice Conference last year. It is clear and protects the exhibitor, except in case where the distributor sells a picture merely by title and gives no other descriptive matter. It has been the practice of some distributors to sell mere titles, and when they produced the pictures and these turned out to be good withheld them and delivered something else in their places. The exhibitor should be protected against such fraud by providing that where the picture is sold by title, that title is the whole thing; and that any change of it to be considered a change is the story. Twelfth Clause: Paragraph (2) of this clause obligates the exhibitor to buy all advertising accessories from or through the distributor. In view of the fact that the producers combined to write this contract, this provision is of doubtful legality. Remember that a distributor has the right to impose any conditions in the sale of his product when such conditions do not break the laws of the land; but when two or more producers combine to impose the same conditions on the buyer, then the matter differs. The Sherman AntiTrust Law may say that they cannot do it without conspiring in restraint of trade. I doubt if the producers would dare enforce this provision. Sixteenth Clause: The first paragraph of this clause deals with the case in which an exhibitor is prevented from performing the contract. The present provision is that the time of the contract shall be extended unless the delay is of more than three months’ duration. But in case the exhibitor has no picture booked beforehand for the time of the delay, he is not relieved of any part of the contract. There should be a provision to entitle the exhibitor to a pro rata reduction in the number of pictures which he is required to accept. The second paragraph of this clause deals with distribution delays. The old contract provided that if the delay was of more than three months’ duration either party might cancel. This was found subject to abuse by the distributors, who might purposely delay a picture in order to cancel contracts. Since the distributor is not obligated to produce and must deliver only if he produces, the exhibitor should be given the exclusive option to cancel in case of a delay of more than three months beyond the life of the contract. Eighteenth Clause: This clause refers to arbitration and it will be discussed in a forthcoming article.