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ARBITRATION IN MOTION PICTURE INDUSTRY 655
practice the three-day requirement was not enforced, for many pictures were shipped C. 0. D. and even on open account, and usually it was only when dealing with an irresponsible exhibitor who did not pay his rentals that it was evoked.
Article 8 provided in detail for the method of determination of play dates. The chief criticism of this article arose over the relationship between first-, second-, and subsequent-run distributors. Most contracts with subsequent-run exhibitors did not provide for actual play dates.
It is clear that under the provisions of the 1928 Standard Exhibition Contract subsequent-run exhibitors have no right to secure the delivery of motion pictures for which they have contracted unless definite playing dates are specified in the contracts. The great majority of contracts with subsequent-run exhibitors do not specify any definite playing dates for the pictures. Such contracts generally provide for the exhibition of a certain number of pictures per week or per month when available. The availability of these pictures for the subsequent-run exhibitors depends entirely upon the dates of their exhibition by the prior-run exhibitors . . . Every distributor naturally desires to have his contracts played out as rapidly as possible. The difficulties experienced by subsequent-run exhibitors in securing play dates are occasioned by delays in the exhibition of the pictures by the prior-run exhibitors, so that the pictures do not become available for the subsequent-run exhibitors. Of course, such difficulties are not occasioned by any disinclination of the distributors to have the pictures played and paid for by the subsequent-run exhibitors when they are available. The absence from the contract of any provision whereby subsequent-run exhibitors can force pictures to be played or released by prior-run exhibitors, so that they shall be available to the subsequent-run exhibitors, prevents the subsequent-run exhibitors from having any control whatsoever over their play dates and over the arrangement of their programs.13
The defendants' testimony before the government disclosed that neither the contract nor the usual method of procedure specified any definite time after general release for mailing notices of availability; also that availability depended not only upon the possession of the print by a local exchange, but in particular upon the numerous variables, mentioned heretofore, that constituted the right of subsequent exhibition. It was further testified that any exhibitor, regardless of sequence, could resort to arbitration to force action on delinquent notices of availability despite the
"Government Brief, pp. 94-95.