Harrison's Reports (1944)

204 HARRISON'S REPORTS December 16, 1944 "In that way, some of the affiliates were born. In summarizing various deals of this character the district court said, each of these agreements not to compete with Crescent or its affiliates in other towns extended far beyond the protection of the business being sold, and demonstrated a clear intention to monopolize theatre operation wherever they or their affiliates secured a foothold. "The same type of warfare was waged with franchise contracts with certain major distributors covering a term of years. These gave the defendants important exclusive film licensing agreements. Their details varies, but generally they gave the defendant exhibitors the right to first-run exhibit of all feature pictures which they chose to select in their designated towns. Clearances over the same or nearby towns were provided, i.e., a time lag was established between the showing by the defendant exhibitors and a subsequent showing by others. The opportunity of competitors to obtain feature pictures for subsequent-runs was further curtailed by repeat provisions which gave the defendant exhibitors the option of showing the pictures in their theatres a second time. In reviewing one of these franchise agreements the district court concluded, the repeat-run clause in the franchise was completely effective in preventing the sale of a second-run of any Paramount features to any opposition theatre. "We are now told, however, that the independents were eliminated by the normal processes of competition; that their theatres were less attractive; that their service was inferior; that they were not as efficient business men as the defendants. We may assume that if a single exhibitor launched such a plan of economic warfare he would not run afoul of the Sherman Act. But the vice of this undertaking was the combination of several exhibitors in a plan of concerted action. They had unity of purpose and unity of action. They pooled their buying power for a common end. It will not do to analogize this to a case where purchasing power is pooled so that the buyers may obtain more favorable terms. The plan here was to crush competition and to build a circuit for the exhibitors. The district court found that some of the distributors were co-conspirators on certain phases of the program. But we can put that circumstance to one side and not stop to inquire whether the findings are adequate on that phase of the case. For it is immaterial whether the distributors technically were or were not members of the conspiracy. The showing of motion pictures is of course a local affair. But action by a combination of exhibitors to obtain an agreement with a distributor whereby commerce with a competing exhibitor is suppressed or restrained is a conspiracy in restraint of trade and a conspiracy to monopolize a part of the trade or commerce among the states, each of which is prohibited by the Sherman Act. "The exhibitors, however, claim that the findings against them on the facts must fall because of improper evidence. The evidence to which this objection is directed consists of letters or reports written by employees of certain of the major distributors to other employees or officers in the same company stating reasons why the distributor was discriminating against independents in favor of defendants. The United States asserts that these letters or reports were declarations of one conspirator in furtherance of the common objective and therefore admissable as evidence against all. And it is argued that it makes no difference that these distributors were dismissed out of the case since they were charged with being co-conspirators and since the findings are with certain exceptions adequate to support the charge. We do not come to that question. The other evidence established the position of the distributors in their relations to the theatres involved, what the distributors in fact did, the combination of the defendants, the character and extent of their buying power, and how it was in fact used. This other evidence was sufficient to establish the restraints of trade and monopolistic practices; the purpose, character, and the extent of the combination are inferable from it alone. Thus even if error be assumed in the introduction of the letters and reports the burden of showing prejudice has not been sustained." Being the first industry case to reach the Supreme Court in which divestiture of theatre holdings was a main issue, the independent exhibitors may well rejoice in the knowledge that the highest court in the land looks favorably upon theatre divorcement as a remedy when the facts justify such action. There can be no doubt that the decision will have an important bearing, not only on the pending anti-trust cases, but also on the future dealings between the distributors and the larger circuits in that they will have to curtail and even cease their predatory practices aimed at squeezing out the independent exhibitor. THE PRODUCERS SHOULD HAVE REGARD FOR THE PUBLIC'S SENTIMENTS Mr. Harold Heffcrnan, Hollywood correspondent of the Detroit ?iews and of the North American Newspaper Alliance, wrote the following in his November 27 column: "Behind the movie headlines: When Joel McCrea rebelled at killing off his best friend in a piece of movie fiction at Paramount a couple of weeks ago, neither he nor the studio looked for such substantial support of his stand by fans throughout the country. Letters have been pouring in assuring McCrea that he is on the right track. And now Joel is more determined than ever that a revise writing job must be done on 'The Virginian,' so that his cattle-rustling pal — his name was Steve in Owen Wister's novel — will be treated to some other form of justice rather than hanging from a tree. "The McCrea protest was extremely interesting in view of overnight type reversals on the part of many Hollywood heroes noted for their fine, brave, kindly deeds and nothing else. Charles Boyer is known to be slightly aghast at the tone of the letters he's received since his 82-minute persecution of Ingrid Bergman in 'Gaslight.' Fred MacMurray is being soundly spanked in his mail these days for entering into a murderous plot with Barbara Stanwyck via the popular 'Double Indemnity." Fred says he will think long and hard before doing any more celluloid dirt. "In view of these kickbacks, Ray Milland is now apprehensive about the reception he'll receive in 'The Lost Weekend.' In that one Ray plays a psychopathic drunk and is anything but a sympathetic character. . . ." This is not the first time that the public has expressed its disapproval of villainous parts taken by its screen idols. The late Tom Mix, in all the pictures that he made, had never been seen to take a drink at a bar or anywhere else. Whenever he entered a saloon, he would order a glass of milk. He knew the effect, not only upon his popularity, but also upon the minds of the young, who were his chief supporters. Harry Carey was induced by the late Irving Thalberg to play the villain in "The Trail of '98." That part broke the hearts of Carey's young followers, as they expressed themselves in letters to him. It took him years to live down that part and today Harry Carey will not take a villainous part if he were offered a truckful of gold. The popularity of George Bancroft was killed by two pictures in which he played villainous parts. George Raft refused to take the chief character's part in "Temple Drake" (William Faulkner's "Sanctuary") and was suspended by Paramount, until Harrison's Reports took up his case and he was reinstated. Jack LaRue took that part and, as a result, the popularity he had gained as the priest in "Farewell to Arms" was destroyed. Mr. Heffernan mentions that Ray Milland is worrying about the reception that the public will give him as the psychopathic drunk in "The Lost Weekend." Milland has cause to worry, for excessive drinking has been looked upon by the public with disfavor. The producers should give a little more thought to the sentiments of the picture-goers; they enjoy the heroic illusions built up by their screen idols, and many of them become keenly disappointed when these illusions are destroyed by unsympathetic parts. When a producer receives one hundred letters from fans expressing their disapproval of either excessive drinking, or some other objectionable performance, he should not assume that there are no more than one hundred indignant patrons; such a number is infinitestimal as compared with the number of those who object but who do not make their objections heard.