Variety (March 1921)

PICTURES Friday, March 11, 1921 PASSION FLOWER" FREED BY COURT AFTER LONG DELAY, TO GO OUT IN APRIL N. Y. Supreme Court Denies Injunction Sought by Author Who Translated *»». Pla*: fTonvSjianish-r-Schen^ Rights. 4) Film Production Held Absolute— Ruling Made Motion Picture Is Not a Performance "in Any Languages- Justice Aspinall, in Analysis, Gives First Definition of "What Is a Picture?" Joieph M. Schenck's "The Pas- sion Flower," starring Norma Tal- madge, which was freed by the New York Supreme Court this week, will be released through Associated First National early In April. Work on the picture, which is said to have cost more than $100,000 to produce, was held up pending the outcome of the court action In which John Gar- rett Underhiil, who translated the stage version of the play from the Spanish of Benavente, sought to re- strain Schenck from using the main title or any other English wording In the picture. With the decision of Judge Aspinall cutting and titling of the feature was resumed and First National this week. said it probably would be released in about SO days. Aside from the fact that a valu- able property was set free by the court decision, the latter is interest- ing from several other angles, one being that "a motion picture play is not a performance in English or any other language." The court gave the first recorded legal analysis of "what Is a motion picture V declaring "its chief char- acteristic Is that It is a performance practically without language. Such words, phrases and short sentences aa are thrown upon the screen at Intervals for purposes of elucida- tion and explanation are not neces- sarily taken from the spoken drama. 4 * History of Controversy. ' The genesis of the Underhlll- Schenck controversy is one of the most interesting that has arisen in .the history of motion picture litiga- tion. The court, in its review, sum- marized it as follows: "The composition in question is a three-act drama, entitled 'La Mal- querida,' the English equivlaent be- ing 'The III-Beloved.' The com- position was duly copyrighted by the author, Benavente, In the year 1914, under the title 'La MalqUerida.' In the year 1917, under written contract, the author granted to the plaintiff (l 'ruler-hill), upon the terms and conditions' therein specified, 'the sole right to translate and adapt Into the English language or to perform or cause to be performed in the said language the drama in three acts, entitled 'La Malquerida.' The plaintiff thereupon prepared an English translation and adopted therefor the title, 'The Passion Flower,' which he claims to have In- vented and devised. "Thereafter, and pursuant to a contract made in January, 1920, be- tween the plaintiff and the defend- ant Herndon (Richard Herndon, who was named as a defendant with Schenck), the latter produced the drama under that name (with Nance O'Neill, now in Boston, as the star) in many of the principal cities of the United States, including about 160 performances ot said drama In the city of New York, and that pub- lic performances of said drama are As a result, In or about February, 1920, an agreement was made be- tween the plaintiff and the defendant Herndon, by which the former as- sumed to transfer to the latter a one- half interest in and to the motion picture rights of the play, 'The Pas- sion Flower,' throughout the world, and Herndon gave to the plaintiff, as part of the consideration, a check for $500. Did id n't Have Screen Rights. "These negotiations were conduct- ed in the belief that the author's approval could be obtained to any disposition of the picture rights by the plaintiff. Subsequently, the check was returned to Herndon on the ground that the plaintiff had been advised that the picture rights of *La Malquerida' had been dis- posed of through an agency in the city of Paris, and that 'therefore the author is not able to make a con- tract concerning them.' "When Herndon learned that the author had transferred the picture rights for the world to one Gonzalez he immediately entered Into nego- tiations with the latter, with the re- sult that in June. 1920. he acquired all Gonzelez's rights under the lat- ter's contract with the author. Sub- sequently. In October, 1920, Hern- don sold and assigned to the defend- ant Schenck the picture rights for a consideration of $25,000. Schenck thereupon began the preparation of a photoplay, In whloh a celebrated actress, Miss Norma Talmadge, was to star, upon a scale that already has involved an expenditure of over $100,000, and will require further and large additional expenditures, and besides has incurred important contractual obligations. Tan con- templated production under the name of 'The Passion Flower* has been widely advertised. This being the situation, the plaintiff seeks in- junctive relief, at before stated. "In my opinion the plaintiff never acquired the picture rights to the drama. The grant from the au- thor does not expressly transfer such rights, and the langauge em- ployed Is too restricted to embrace them by implication. The right conferred by the grant Is 'tc trans- late and adapt Into the English lan- gauge, and to perform ( or cause to be performed* in the said lan- guage. • • •• "A motion picture play Is not a performance In the English or in any other language. Its chief char- acteristic Is that It is a performance practically without language. Such words, phrases and short sentences as are thrown upon the screen at intervals for purposes of elucidation and explanation are not necessarily taken from the spoken drama. It seems quite clear to me from the phraseology of the grant by the au- thor to plaintiff that the parties con- templated the presentation of the drama, as translated by the plain- still being given regularly and with tiff, upon the stage by speaking great success. "Both before and after the con- tract of January, 1920, the plaintiff and the defendant Herndon were ne- gotiating for the acquisition by the latter of the motion picture rights. F. P. OFFICERS GO WEST Lasky end Ludvigh Visiting Holly- wood Studio. Jesse L. Lasky, vice-president of F. P.-Lasky, and E. L. Ludvigh, treasurer of the corporation, are at the studio in Hollywood. It is a regular thing in Mr. Lasky's life to hop to the coast plant, but this is the first time Mr. Ludvigh ever has been there, although he has been an officer of the corporation since its foundation. Mixed in with a generally optimis- tic statement about F. P. stars and plans, Mr. Lasky gave out the infor- mation that Betty Compson's first Paramount feature will be "The Fnd of the World," to be released about the first week in September. Miss Compson recently signed a five-year contract with F. I*. actors. "Moreover, the plaintiff does not* seriously contend that he possesses the picture rights to the drama. Claims Title Ownership. "In the prayer of the complaint he does not ask for an injunction to prevent the production of any photoplay, but only for an injunc- tion agahisc th.6 use of th© title. 'The Passion Flower,' and of any lines, captions and titles in the Eng- lish language in connection with any such production. Such also is the language of the order to show cause, and in his brief he urges that even if he has not acquired 'in express terms' the right to make a picture production of the drama 'it Is clear that his sole right to translate and adapt into English tr- ample to prevent any such produc- tion by another.' "The plaintiff's real contention If that he devised or Invented the title, 'The Passion Flower,' for tin spoken drama, and that its appro- priation by the defendants for th« contemplated photoplay is the vio- lation of a right exclusive to him- self, and so constitutes unfair com- petition. It may be here said tha bis claim to be the originator of this title is not substantiated by the records in the copyright office, which disclose that this identical title has been previously adopted by others in connection with both dra- matic and literary compositions; but this is immaterial, for relief in equity lies to the adopter and user of a title, not to the inventor of it. "It must be conceded that the plaintiff first adopted the title* for his spoken drama. But priority of adoption and use alone is not suffi- cient, for the plaintiff has no ex- clusive property right in the name 'Passion Flower.' The drama was not copyrighted under that title, nor was It ever so registered as a trade- mark, name or label. It is the name of a flower. One of the definitions In the Century Dictionary is 'any plant of the genus passlflora.' Any- one may apply the name to a poem, a country estate or a race horse, as fancy dictates. Question of Priority. "To Justify injunctive relief against the wrongful appropriation of a name or title, fanciful in its nature, there must be added to the requirement of priority of adoption the further essential that the title must have been so used as to have acquired a secondary meaning, which identifies it in the public mind with a particular composition, object or thing. "These two essentials create a right akin to a property right which equity will protect against an unauthorized appropriation by another under cir- cumstances that would work a fraud and deceit upon the public to the in- Jury of the complainant. Plaintiff claims that the present situation meets the requirements of the rule. He claims (1) priority of adoption of the title; (2) that by the many per- formances given the title acquired a secondary meaning by which it be- came identified in the public mind with the spoken play, and (3) that the production of the photoplay un- der the same title would diminish the financial returns from the spoken play to his great injury. This, the plaintiff claims, entitles him to In- voke the doctrine of unfair compe- tition. "It has been said that this doc- trine rests upon the principle 'of common business Integrity,' and iltMJt the gist of the action 'la not the harmless use of the particular words and symbols, but the appropriation of a competitor's business to his In- Jury.' The law is similar to that relating to trade marks. It Is based primarily upon the theory that no one may, by the use of names, signs, symbols or marks, perpetrate a fraud upon the public by Inducing the be- lief that his buslnesss, goods or prod- uct Is that of another. "In my opinion the plaintiff Is not entitled to invoke the doctrine. The copyright law secures to an author the exclusive right to drama- tization, and this Includes the right tw produce the drama or composi- tion as a spoken play and as a pic- ture play, thede distinct rights being originally united in the author or composer. In the "present case, however, the grant from the author to the plaintiff transferred only the rights of the former in the spoken play. Whatever rights may have been acquired by the defendants by subsequent transfers from the au- thor and his transferees, the plain- tiff baa the undoubted right to translate and perform as a spoken play. But the plaintiff, in exercis- ing his admitted right In this re- spect, discarded the title of the au- thor and substituted his own. adopt- ing the name 'The Passion Flower.' Tendency to Deceive. "In my opinion the plaintiff's act in this respect had i tendency to deceive the theatregoing public* for the reason that the public would not generally know that the spoken drama, produced under the title The Passion Flower.' depicted the same plot, characters and scenes is the copyrighted drama 'La Mai- luerlda.' "The plaintiff nskf equity to com- pel the defendants to produce this photoplay under the title which he discarded or under some other title. The direct result If relief of. this character would be to deceive the publio as to the identity, in plot, characters and scenes, of the spoken play with the picture play. In my opinion ethe publio is entitled to just such knowledge, and any applica- tion for relief in equity which in- volves the deception of the public in this respect does not commend itself to this court, K equity will enjoin, as it frequently does, the production of a photoplay under the same title as the spoken play be- cause of the diversity of author- ship, plot, characters and scenes, it will not compel the adoption of a different title for the photoplay when the authorship, plot, charac- ters and scenes are Identical. The ground upon which equity should Intervene In the one case and refuse to intervene in the other is the same. "To prevent any semblance of de- ception upon the public equity will grant or withhold the relief sought as the occasion may require. In the present case it seems to me that the relief which plaintiff asks would tend to deceive the public into the belief that a picture play presented under the title 'La Malquerida' or some other title was not the drama produced under the title of 'The Passion Flower.' Plaintiff com- plains of the possible injury result- ing .from the competition that would arise between the spoken drama and the picture play about to be pro- duced by the defendant. That such competition may result from the simultaneous production of a spoken play and a picture play is recog- nized, and protection has been fre- quently afforded a plantlff against a defendant who threatened to ap- propriate, wrongfully, the title of a spoken play and give it to a pro- posed picture play, different in plot, characters, scenes and authorship. Usually, in such cases, it will be found that the entire right of dramatization was in the plaintiff. Many such cases are cited in Froh- lich on Motion Pictures (beginning on page 413). In the present case, however, the plaintiff never acquired the picture rights, and the theory of his action is* not the protection of any rights secured under the copyright. No Language Right Involved* "Plaintiff further contends that the grant to him of the right to translate and adapt into the Eng- lish language negatives the right of the defendants to produce the pro- posed picture play. "I do not agree with this conten- tion. If I am correel In the view that the plaintiff acquired* the rights to the spoken play only, the grant of the right to translate must be construed as limited to the require- ments of the spoken play. More- over, the defendant Schenck dis- claims any intention of appropriat- ing plaintiff's translation, but claims that he is making a motion picture production from the ori- ginal play. "The plaintiff claims in point 5 of his brief that, even if he did not acquire the right In express terms to make a motion picture production of the play, his 'sole right' to trans- late and adapt into English Is suffi- cient to prevent any such produc- tion by another (citing Manners v. Morosco. 252 U. S., 317-325, 326). That was a suit to restrain the pro- duction of a motion picture Play In violation of the copyright of the complainant, who was the author. The suit involved the question of infringement. But in point 1 of plaintiff's brief he distinctly states that he 'does not complain of any infringement of copyright,' but that this lawsuit Is brought to test mere- ly the title to literary property and 'not an Invasion or piracy of that property.' If the suit were to pre- vent the production of a photoplay because of infringement of rights secured by the copyright, then the suit should have been begun in the federal courts; but if the purpose of the suit be, as plaintiff asserts to prevent the use of the title. "The Passion Flower." on the theory of unfair competition, I am of tin- opinion that for the reasons stated the plaintiff has shown nothing en- titling him to relief in equity. Mo- tion for a preliminary injunction denied " SAYS 18 OF 20 PICTURES LOST HOI George Beban Asserts Publio Is to Blame Chicago, March I. George Beban, appearing person* ally at the Riviera with his film, "One Man in a Million," is making pie&a for ctea.iv ptetures, but not ! from the producers' end. He is ask- ing the publio to patronise clean pictures, putting up to the patrons the responsibility for highly spiced, immoral and even indecent exhibits. He, explains that the producers have no purpose in exploiting sex, except to get the money; and that these get the money because the people buy them. He said that 10 picture companies recently compared notes on 20 features entirely devoid of sex problems, scant dress and suggestiveness. Of the 20, only 13 had been released, and of the 18 but I had paid for themselves. The others were financial failures. CAPT. COLLINS FAST Brisk Race With Inaugural News Films Cutting the train time between Washington and New York in less . than half, Captain Claude R. Col- lins of the New York City Air Po- lice and President of the Aviator's Club, won the commercial race which was staged immediately after the Inauguration ceremonies last Friday, in bringing a film and news- paper plates from Boiling Field at' Washington, to a landing space in West Hoboken. N. J., in 2 hours I and 35 minutes, beating three other planes making the same flight by more than half an hour. Captain Collins delivered his consignment before 5 o'clock, while the first pic* tures of the Inaugural, sent by train, reached New York at 0:10 on the ' Congressional Limited. While Captain Collins landed here with the Selsnick News film a I half hour before the rival concern, i Pathe, received theirs, Pathe was the first to distribute in its assigned theatres in New York that evening, delivering the pictures into the' houses at 8 o'clock with Selsnick' following an hour later. The lost time was made up by Pathe In the developing plant at Jersey City. Captain Collins recently announced his entry in the contest for the $100,000 Ince trophy offered for the first successful flight across the Pa* cific ocean from California to Japan. His engagement vo Lila Lee, the film actress, was also lately made public The Pathe people claim a record for swift recording of publio events, KANE'S MAE MURRAY FILMS Star To Do Four Features For Associated Exhibitors. The first announcement of Associ*. ated Exhibitors since its reorgan*: izatlon with Arthur 8. Kane as chairman of the executive commit* tee deals with contracts just made for four special features starring Mae Murray. They will be made in the East, the first to start in work immedi- ately at the Amsterdam studios, The enterprise is understood to have the financial backing of middle western capital, among the pro* motors being Boyd Gurley, known as a newspaper publisher in that section. The pictures will be directed by Robert Z. Leonard. Leyford Gates, author of several novels and plays. Is associated with Gurley In the ven- ture. Associated Exhibitors will handle the distribution. "FAITH HEALER" It is announced by paramount that "The Faith Healer," a George Melford production, will go Into the Criterion, New York, for a run be- ginninj Sunday. It will succeed "Buried Treasure," in which Marlon Davies Is starred, the run of the Utter havlr.g been extended a week beyond Its original booking because of its drawing strength. This makes four weeks for the Davies attraction. "Hurled Treasure" will play over the Keith time, opening at Moss' P.roadwa/ next week. Williams to Make Chester Comedies. Lbs Angeles. March 9. Harry Williams, a Fox comedy director for several years, has sign- ed with C, L Chester to produce ••omedies.