Motion Picture News (Mar-Apr 1923)

March i J , 1923 1261 Fox Copyright Case Goes to Supreme Court Question of Succession of Dramatic Rights on Carleton Poems Involves Important Issue THE action of Fox Film Corporation to sustain its claim to the exclusive rights to present in dramatic form an adaptation of Will Carleton's poems, "'Over the Hill to the Poorhouse " and " Over the Hill from the Poorhouse," now rests in the hands of the Justices of the Supreme Court of the United States. The ultimate disposal of this case by the highest judiciary tribunal of the country is being awaited with interest by the film industry, as the ruling will set an important precedent for all similar copyright controversies involving dramatic and screen rights, in the future. Under the present copyright law of the United States the privilege of copyright endures for a period of twenty-eight years. Provision is made in the law for a renewal of the copyright privilege for an additional fourteen years, the requirement being that the application for renewal be filed within the year prior to the expiration of the original copyright term. The law further provides that in the event of the death of the copyright proprietor his widow or children may apply for the renewal within the specified period; and that in the absence of widow or children, the copyright proprietor may delegate in his will to his executor or next of kin the power to apply for renewal, application to be made, in each instance, within the year prior to the expiration of the preceding copyright term. Now arises an important question : Suppose the copyright proprietor dies prior to the year within which application for a renewal of the copyright may be made, can the executor (assuming that the proprietor is not survived by widow or children) apply for and secure a renewal of the copyright privilege? That, basically, is the issue involved in the case of the Fox Film Corporation now awaiting decision by the Supreme Court of the United States. Two courts have already decreed that the executor, under circumstances such as have just been described, does not enjoy the right to secure a renewal of the copyright. The reasoning advanced by the two courts in support of their decision is briefly this: the right of an executor to make an application for renewal exists only when the privilege of obtaining a renewal was existent in the testatorauthor at the moment of decease ; secondly, as the original copyright proprietor does not possess the right to apply for renewal until within the year prior to the expiration of the preceding copyright term (as provided in the law), hence it follows that if he (the copyright proprietor) dies before such year is reached his executor is left devoid of the right to make application for renewal. This has been the decision handed down by the Eastern District Court of New York and affirmed by the Circuit Court of Appeals in Fox Film's action against Frederick M. Knowles, Joseph Klein, Joseph Morris, et al. Fox charges these parties with infringement of the dramatic copyright to " Over the Hill to the Poorhouse " and " Over the Hill from the Poorhouse," alleging that they have given public performances of a play, based upon the aforementioned poems, in violation of its ownership of the dramatic rights. The District Court dismissed Fox's bill of complaint, embodying this charge against Knowles, Klein Morris, et al. ; and when the case was later appealed to the Circuit Court this latter court N. Y. Times Critic Signed for Post by Universal JAMES O. SPEARING, motion-picture editor of the New York Times, is to be given the opportunity of putting into practice at a film studio the ideals and principles which he has enunciated for the past five years as photoplay critic of the Times. Carl Laemmle, president of Universal Pictures, has engaged Mr. Spearing for an important post in the scenario and editing departments of the Universal organization. Mr. Spearing will leave New York Times in two weeks and go directiy to Universal City where Homer A. Boushey, production manager, has important work already mapped out for him in the scenario and editing departments. affirmed the District Court's decree. Fox Film Corporation next filed an appeal from the decisions of the lower courts in the United States Supreme Court, obtaining from this body a writ of certiorari to the Circuit Court of Appeals. Here the case rests for the present. The history of the copyrights upon these two poems is an interesting one and enters vitally into a judicial consideration of the case. Saul E. Roger's, counsel for the Fox Film Corporation, in the petitioner's brief to the Supreme Court, traces the history of the copyrights, in part, as follows: " Prior to 1873 Will Carleton was the author of a collection of poems, among which was one entitled ' Over the Hill to the Poor House ' and another, ' Over the Hill from the Poor House' (Rec. page 1, fol. 3). Carleton assigned his interest in the poems and collection, together with the right to secure copyrights thereon to Harper & Bro., publishers. On February 21, 1873, said assignees duly copyrighted said collection of poems and published the same under the title of ' Farm Ballads' (Rec. p. 2, fols. 3-5). " The original copyright procured by Harper & Bro. expired in 1901. The author properly procured a renewal thereof from 1901 to 1915. The author died in 1912 without a widow or children, leaving as his executor and sole legatee one Norman E. Goodrich. The executor duly qualified and as such executor, within a year prior to the expiration of Will Carleton's copyright in 1915, duly made his application for a renewal thereof, and the Register of Copyrights registered such renewal from 1915 to 1929. By operation of law the said executor, who was also the sole legatee, received the benefit of such further renewal copyright, and when he died on July 27, 1915, he had the absolute right to bequeath by will his property, which included the said renewal, to his widow, Alice L. Goodrich, from whom the petitioner received its title to the dramatic copyright by an assignment dulv executed on October 26, 1920" The " petitioner " mentioned in the preceding paragraph as receiving the dramatic copyright from Alice L. Goodrich is the Fox Film Corporation. Mr. Rogers thus traces the succession of rights under the copyright privilege from Will Carleton's sale of the poems to Harper Bros, down to the u assignment " of the dramatic rights to Fox Film. The whole case hinges, of course, on the death in 1912 of Will Carleton, prior to the year (1915) within which Carleton would have enjoyed the right to secure a renewal of his copyright, if alive. Did Norman Goodrich, as Carleton's legatee and in view of the circumstances, actually enjoy the legal right to make application for a renewal of the copyright in 1915, and in turn did his wife really possess by inheritance the dramatic rights on Carleton's poems which she " assigned " to the Fox Film Corporation in 1920? Disagreeing with the District Court and Circuit Court, which have already answered in the negative, Mr. Rogers declares that the copyright law, properly interpreted, contains no such restrictions or conditions upon the right to renew as have been advanced by the two lower courts. Mr. Rogers further asserts that the legislative intent of the framers of the present copyright law — as shown by written testimony in the official records of Congress— was to bestow, in the order mentioned, upon the widow, children, executor, and next of k in of the deceased copyright proprietor all the renewal rights enjoyed by him and irrespective of the time of the proprietor's demise. Mr. Rogers also points out that unless the Supreme Court reverses the ruling of the lower courts in the present case the rights of the widow or children of the deceased proprietor will be seriously challenged. He indicates that the widow and children — as far as renewal rights are concerned — are placed in the same general category as the executor. Hence, he adds, if the Supreme Court affirms the decision of the lower courts it will logically follow that widow or children of the deceased copyright holder will be unable to secure a renewal of the copyright unless the author happens to die within the year prior to the expiration of the copyright term. In other words, Mr. Rogers concludes, the renewal rights of the proprietor's widow and children (and executor as well) will be made wholly dependent upon an accident. Such an interpretation of the law is and would be wholly at variance with the recorded intent of those responsible for the present copyright law, Mr. Rogers contends. Francis Hugo to Promote No nTheatrical Field Another step has been taken in the promotion of religious and educational motion pictures. This week Francis M. Hugo, formerly Secretary of State of New York, was appointed chairman of the board of directors and chairman of the executive committee of the National Motion Pictures, Inc., which is headed by Harry Levey. Mr. Hugo is planning as his first work the formation of a committee of 100, which will include persons prominent in the church and school fields, with whom he will confer with a view to building up adequate production and distribution facilities for the supply of films to churches and schools. Later Mr. Hugo plans to establish a representative of the organization in each of the forty-eight states of the Union. These representatives will handle the non-theatrical problems in their respective states.