Variety (Nov 1932)

Tuesday, November 22» 1932 Pi CT U R E S VARIETY 95 Schedule -which ate designated "no substitute?/' provided, that not morie than, twenty (20%) percent ot the total number of feature motlbn pictures specified In the Schedule, other than the motion pictures of said star or stars, are so designated. The right of rejection conferred on the Exhibitor by this clause 'is In addition to the right of exclusion, provided in Clause Fifteenth hereof. (c) The Distributor warrants that none of said motion pictures are reissues of old negatives, old negatives retltled, or foreign pro- duced by a foreign producer, excepting those speciflcally specified as such Iri the Schedule; and further, that none of said motion pictures contains or ivUl contain-any advertising matter for -which compensation Is received by the Distributor, or any subsidiary or afnilate of the Distributor. Adverlisini Prior to First Run • •NINTH; .(a) K t-he Exhibitor Is granted a. Subsequent run of the said motion pictures the Exhibitor shall not advertise any thereof by any means of advertising prior to or during the exhibition of any one of eald motion, pictures by any other exhibitor having the rlglit to a prior ^n th^tebf and charging admission prices higher than the prices charged for admission to ■ the Exhibitor's theatre, excepting advertising *lnslde the theatre not Intended for removal therefrom by the public, unless the first date of exhibition.hereunder of any.such motion picture shall,be wlthlii ififteen (16) days from the last exhibition date of such prior run. exhibition. In which case the Exhibitor shall have the right to advertise such 'motion picture, provided the Exhibitor does not in any advertising state that the prices charged for admission are or v/iU be less tfian the admission prices charged by the Exhibitor having the first or prior run of such motion picture. Nothing in this clause shall be deemed to prohibit'the Exhibitor from advertising generally all . of said motion pictures as a group, but such general advertising, shall not refer , to. any .one: of said, motion, pictures, during its exhibition by any other exhibitor having the Drst or Immediately prior rUn thereof, . excet)tlng as herein provided. (b) For a breach of the provisions of this clause the Distributor shall have. In addition to all other rights, tHe irlght to exclude from this license any motion picture advertised in violation of the pro- visions hereof by written notice to such effect mailed to the Exhibitor and upon the mailing of such notice the license of such motion picture shall terminate and revert to the Dlstrlbutori unless arbitra- tion Is herein provided for and Immediately upon the receipt of any such notice of exclusion the Exhibitor by written notice given to the Distributor, shall deny breaching any of the provisions of this clause. In which case the .question of fact raised by i9u<:ti denial shall be deternilned by arbitration. Acceptance by Distributor TENTH: tJntil accepted, in writing by an ofQcer of, or any person authorised by . the Distributor, iand notice of acceptance sent to the Exhihltor this instrument shall be deemed only an application for ^ a license under copyright, and may oe withdrawn by the Exhibitor any time before such acceptance.. Unless such notice of acceptance Is sent the E<xhlbltor by mall or telegraph within fifteen (16) days after the date thereof. If the said theatre of the Exhibitor-Is located Ea^t of the Mississippi River, and within thirty (30) days after the date thereof If located west of said river, said application, shall be deemed to have 1)een withdrawn. The deposit by the Distributor of any check, or other consideration given by the Exhibitor at. the time of application as pay- ment for any purpose or the .delivery of a print of any of said motion pictures ^hall not be deemed an acceptance hereof by the Distributor. Chanoes in .Writing ELE'VENTH: This license agreement is complete, and all promises, representations, understandings and agreements In reference thereto have been expressed herein. No . change or modification, hereof shall be binding upon the Distributor unless in writing islgned by an officer of, or any person duly authorized by the Distributor at its niain ofQce In New Tork . City, excepting In an emergency, and only then a change or modlfl-- cation may be consented to In writing, but only by the representative of the Distributor managing the Distributor^ exchange out . of which the t)khlbitor Is served, provided such change or modification does not change or modify the run, and/or protection period, or decrease any rental specified in the Schedule. Ass ignm ent on Sale of Theatre TWELFTH: This llcens6 shall not be assigned by either party without the written consent of the other, pro-irided, that if the Exhibitor sells the said theatre or transfers any interest therein and Is not In default hereunder, the Exhibitor may assign this license to the purchaser «f the theatre or of such Interest without the -written consent of the 'Distributor, but any such assignment shall not be valid or of any •fCect hereunder unless a -written acceptance thereof by the assignee assuming the obligations of the Exhibitor shall be delivered to the Distributor. Any such assignment shall not jrelease the Exhibitor from any liability hereunder Unless such releiase from liability Is consented to by. the Distributor In writing. .Taxes • THIRTEENTH: The Exhibitor shall pay to the Distributor upon demand, any tax, fee or other like charge now and/or hereafter imposed or based upon the delivery and/or the exhibition of jH*inta of motion pictures and/or upon the sums payable under this license by the ZUilbltor to the Distributor. If under aiiy statute or ordinance any such tax, fee or other like charge is or shall be payable or paid by the Distributor and the exact amount payable hereunder by the Exhibitor is not therein definitely fixed or cannot be exactly determined, then the Exhibitor shall pay such part of any such tax, fee or other like charge paid or payable by the Distributor as shall be fixed in the manner determined by the then President of the American Arbitration Association. Prevention of Performance FOURTEENTH: If the Exhibitor shall be prevented from exhibiting •r the Distributor from delivering any of the said motion pictures for causes beyond their direct control, then this license in respect to each such motion picture shall terminate and revert to the Distributor with- out liability on the part of either party, provided reasonable -written no- tice of such termination and the cause thereof Is given. Option to Exclude if Group Licensed FIFTEENTH: (a) If the total number of feature motion pictures Offered to the Exhibitor by the Distributor, at one time, shall have been Ueensed by the Distributor hereunder, and the rental of each thereof averages less than Four hundred ($400.00) Dollars, or if the rental of •acb is to be computed upon a percentage of the receipts of the Ex- hibitor's theatre, that the rental of each feature motion picture exhib- Sfed at the said theatre during a period of one (1) year prior to the term hereof, shall have averaged less than Four hundred (1400) Dol- iuB, the Exhibitor shall have the right to exclude from this license, trst not to exceed five (5%) percent of the total number of feature motion pictures licensed hereunder: thereafter to further exclude not to exceed Ave (&%) percent of said total number; and/or lastly to further exclude Bot to exceed five (5%) percent of said total number, the aggregate pumber of feature pictures so excluded in no event to exceed fifteen <1B%) percent of the total number, licensed hereunder, provided that the Exhibitor is not in default hereunder and shall have fully compUed with all of the provisions, if any set forth In the Schedule *or the ex hlbltloh of one or more of said feature motion pictures at specified in tervals; and provided further that the Exhibitor shall give to the Dls trlbutor written notice of the Exhibitor's election to exclude any of said feature motion pictures not later than fourteen (14) days before the date or dates fixed for its exhlbltipn hereunder and , at the same time: (1) as to each feature motion picture excluded in the first five percent of the total number so excluded to pay to the Distributor the rental therefor specified In the Schedule; (2) as to each feature motion pic tttre included In the five percent of the total number thereafter so^ex_ ataded to pay to the Distributor one-half of the rental thereof specified the Schedule; and (3) as to each feature motion picture Included In &e five (B%) percent of the totel lastly so excluded there shall be added to the rental of the motion pictures then remaining to be delivered lliereunder an amount at least equal to the aggregate of the rentals of the motion pictures so lastly excluded, apportioned equally to each or ib&ny one or.more tWeof, selected by the Exhibitor, upon notice to such affect given to the Distributor, and the exhibition period specified In the Schedule of any thereof of such motion pictures so selected may b^ at the option of the Exhibitor upon written notice to such effect, rotably extended for such number of days as the rental thereof specl- Sed la the Schedule plus the amount added as herein provided, permits, la computing such number of days fractions of more than one-third •hall be deemed one day. , , ^.^ \ . ». (b) On or before the fifteenth (15th) day after the end of each three (3) months period of the term of this license, the Distributor shall repay to the Exhibitor a sum equal to the amount paid by the Exhibitor to the Distributor as rental of the feature motion plCr tnres first excluded by the Exhibitor as provided in Paragraph (a) of this clause, during such three months period^prpvlded that dur- tag such three months perk)d the Exhibitor shall have exhibited as herein provided, all of the feature motion, pictures, licenced here- ' . under then generally released and 'available for exhibitlori hereunder by the Exhibitor, excepting those. If any, excluded as provided in this clause and shall have paid to the Distributor at the time herein specified the rental of each thereof. (c) For ,tl»e purpose of this clause only, the rental or any pan thereof of etch feature motion picture whloli la tp be computed in whole or In part upon a percentage of the receipts of said tlieatrc, shall be deemed to be that amount or part thereof which Is equal to such percentage of the average daily gross receipts of such the- atre on .each date any feature motion picture distributed by the Distributor was exhibited thereat during the period of ninety (90) days prior to the date of the Exhibitr's written notice to exclude such feature motion picture, or if no feature motion picture dis- tributed by the Distributor was exhibited at such theatre during said ninety (90) days period, then the rental or part thereof shall be deemed to be that amount or part thereof which is equal to such percentage 6t the average daily gross receipts of said theatre dilring the period of thirty (30) operating days immediately prior to the date of said written notice, to exclude such feature motion lilcture. (d) In computing said percentages of the total ,number of fear ture motion pictures fractions of less than bne-lmlf shall be dis- regarded. (e) Upon the failure "or refusal of the Exhibitor'to fully and completely comply with each and evei*y condition hereinabove in this c;ia,use specified and upon Svhlch the Exhibitor is granted the right to exdudia any of the feature motion pictures licensed here- under, such right, to exclude any feature motion picture and there- after to exclude from this license additional feature motion plc- . turesi shall thereupon forthwith terminate and shall not again be granted hereunder during the term hereof. < ' - (f) Upon the exclusion of each of the feature pnotion pictures permitted by the provisions of this Clause the run and protection period, if aily, granted the' Exhibitor in respect thereto shall be deemed -waived by the Exhibitor and the license thereof shall there- upon terminate and revert to the Distributor. First Run Exhibitions SIXTEENTH: (a) If the Exhibitor is granted a first run of the said motion pictures, the Exhibitor shall exhibit each of the feature motion pictures excepting those described In Paragraph (d) of this Clause within the period hegihnihg with the date, scheduled and an- nounced by the Dlstrlbuttor for the general release of each feature niio- tlon picture in the territory wherein is located the exchange'of the Dis- tributor out of -which the Exhibitor Is served and ending one'hundred and twenty (120) days thereafter, . notwithstanding any provision of Clause Sixth hereof to the contrary. If the first ejchlbltlon dat<B of any of the said motloin pictures shall occur on'a date later than ninety (90) days after its scheduled and announced general release date, then the period of protection of such motion picture shall be reduced so as to expire one hundred and twenty (120) days after said scheduled date of Its general release. If the Exhibitor is granted a first run of' the said motion pictures and the: Exhibitor fails to exhibit any feature motion pldture within said period of one hundred and twenty (120) days, the grant'of the said first run, and the protection period In respect thereof shall be deemed waived by the Exhibitor, and the license fee as to such feature motion picture shall thereupon forthwith become due and pay- able to the Distilbutor, with the right-to the Exhibitor to exhibit-such feature motion picture as hereinafter In Paragraph (e) of . this Clause provided. Second Run Exhibitions «. (b) If the Eixhibltor Is granted a second run of the said motion pictures and any other exhibitor having been granted the first run thereof immediately prior to such second run fails to exhibit any ^ of the feature motion pictures, excepting those described In Para- ' graph (d) of this Clause within the said period of one hundred and twenty (120) days specified in Paragraph (a) of this Clause, the Exhibitor shall exhibit each such feature motion picture -within.the period beginning with the date of the explriatlon of the said one hundred and twenty (120) days period and fending fourteen (14) days thereafter, notwithstanding any provision of .Clause Sixth hereof to the contrary. If the Exhibitor is granted a second run ot the said motion pictures and the Exhibitor falls to exhibit any feature motion .picture within said fourteen (14) days, period the grant of such second run and,the protection period If. any In re- spect thereof shall be deemed waived by . the Exhibitor and the license fee as to such feature m.otion picture shall thereupon forth- with become due and payable to the Distributor, with the. right to the Hxhibltor- to exhibit such feature motion picture as hereinafter in Paragraph (e) of this Clause provided. Subsequent Runs Exhibitions (c) If the. Exhibitor is granted a run subsequent to a second run of the said motion pictures and any pther exhibitor having been granted the second run thereof Immediately prior to.such sub- sequent run falls to exhibit any of the feature motion pictures, ex- cepting those described In Paragraph (d) of this Clause within the said petiod of fourteen (14) days specified In Paragraph (b) of this Clause the Exhibitor shall exhibit each feature motion picture within the period beginning with the date of the expiration of the said fourteen day period iand ending seven (7) days thereafter, not- -wlthstandlng any provision of Clause Sixth hereof to the contrary. If the Exhibitor is granted a ruii subsequent to a second run of the said motion pictures and the Exhibitor fails to exhibit any feature, motion picture within said seven (7) day period, the grant of such subsequent run and the protection period If any in respect thereof shall be deemed.waived.by the Exhibitor and the license fee as to such .feature motion picture shall thereupon forthwith become due and .payable to the Distributor with the right to the Exhibitor to exhilbit such feature motiop picture as hereinafter in Paragraph (e) of this Clause provided. Extended Runs (d) Any . of the motion pictures which shall have been exhibited at any theatre In the said territory for more than one show week prior to the run granted the Exhibitor shall be excepted from the pro- visions of this Clause and of Paragraph (b) of Clause Fourth. Exhibition Aftor Revocation of Run and Protection (e) Upon the waiver of the grant of the run and/or the protection period of any feature motion picture as provided In Paragraphs (a), (b) or (o) of this Clause, the Exhibitor upon payment of the sum or sums payable hereunder, as provided in this Clause for the license to exhibit such feature motion picture, shall have the right to exhibit the same hereunder upon a date or dates not in conflict with any run and/or protection period granted or hereafter granted to other exhibitors, upon written request mailed or delivered to the Distributor -within sixty (60) days after the last date upon which such feature motion picture should have been exhibited by the Exhibitor as provided in this Clause. Falling to make such request within said period of sixty (60) days the license to exhibit such feature motion picture granted hereunder shall terminate and revert to the Distributor. If the provisions of this Clause shall .In anywise' be In conflict with the provisions of any other license: agreement made and entered into by the Distributor with any other exhibitor prior to September 1, 1933, the provisions of this Clause shall be deemed to be subordi- nate and subject to the provisions of such other license agreement. Pictures not Generally Released SEVENTEENTH: If any of the said motion pictures described in the Schedule shall not be generally released by the Distributor for dis- tribution In the United States during the period beginning............... and ending.... each such motion picture, but not to exceed a total of five thereof, shall be excluded from this license, upon written notice to such effect given to the Exhibitor by the Distributor prior to fifteen (16) days before the end of said period, unless the Exhibitor shall give written notice to the Distributor not later than thirty (30) days after the end of said period that the Exhibitor elects to exhibit hereunder all such motion pictures if generally released during the year immediately followihg the end of said period. If such notice of election is given as aforesaid the Distributor shall deliver and the Exhibitor shall exhibit each of such motion^ pictures upon the terms and conditions of this license, excepting that any thereof which are not so generally released within th'e said following year shall also be excepted and excluded from this license. In such case the Distributor may ex- hibit and licei»«e for exhibition each of such motion pictures so excluded when and where desh-ed by the Distributor, and all claims of the Ex- hibitor in respect thereof are hereby expressly waived and the Dis- tributor released and discharged therefrom by the Exhibitor EIGHTEENTH: If the Exhibitor shall fall or refuse to pay the rental of any such motion pictures as provided in this license, or to furnish statemMits of tho -woelpts of iaaid theatre, if any are required hereunder .{Continued on page 36) ' UGHTMAN MAY RESIGN AS MPTOAPRES Chiange In the leadership of the Motion Picture Theatre Owners of America now seems cex'taln shortly after the first of the year. For spme tlnie M. A. Lightman has threatened to resign. Now that his program for the: organization ia hear completion, it is expected either he will retain the title and be more or less inactive with a personal rep- resentative doing most of the trav- eling, or a successor will be named. Several leaders of exhibitor uiilts are how named as Lightman's suc- cessor. Most likely Is reported to be Lewln Pizor, head of the Phila- delphia aggregation. Lightman has over 26 of his own theatres In Memphis which require a lot of the time he has been giving gratuitously to organization work. In many of the tiips which he has made Lightman has defrayed all ex- penses out of his own pocket. Publix-RKO Sew-Up Angle For Texas Keyst . A plan has been offered to do sec- tlonalize the BKO operation of th«. former Hoblitzelle houses in Texas with certain Paramount - Publis houses how operated by Boh O'Don- nell and Bill Jenkins. It's an operating pool and film booking pool. There . are around 12 to 14 .'or more Paramount houses that might be involved and six RKO theatres In the several Texas keys. Loew's in Houston would remain as is and la not in the deal. The idea is to' reclassify the houses Involved on an A, B, C run basis, with the best house among both sides in a particular territory being graded the A or first run spot, and so forth, without distinction as to company ownership. "What seems to be worrying !RK0 is whether the rents could also be. adjusted. It Is likely that under the sectlonallzlng a hous* now operat- ing an an RKO first run might be- come a B house under the pool, but the fixed overhead would stick pretty nearly 'as at present.. Only remedy proposed for the rent prob- lems is that the circuits assume sonib of the rental for the biggest houses. RKO holds a 26-year lease on the Hoblitzelle houses. If the combi- nation deal goes through Karl Hob* lltzelle will again return to the the* atre business. Contract Angles (Continued from page 34) . an exhibitor adjudged of a major contractual Violation. If anything, tr figures that the distrlb is more severely penalized since it costs money to get contracts and such a ruling would' make it easy for an exhib to stage a run-out. As an al- ternative U suggested that the dls^ trlb be allowed to increase protec- tion over such an exhib. This point was answered by the fact that,the industry as a whole would not want to do business with a dishonorable exhib and that the moral equation would be far strong-^ er in the long run. Last minute corrections In the contract were also seen at flr^t as constituting a possible obstruction to general exhib approval at the mass meetings. This Impression was arrested yesterday when the claim was made that all exhibitor repre- sentatives sitting in on the confer^ cnces had approved of the correc- tions, mostly changes of one and two words in phraslngs.