CITE:  169 F. 61
CMON:  March 1909
PLAIN: Harper & Brothers, et al.
DEFND: Kalem Co., et al.
COURT: Circuit Court of Appeals, Second Circuit
DATE:  March 16, 1909

Appeal from the Circuit Court of the United States for the Southern 
District of New York.

  Motion picture, considered as a series of photographs, is copyrightable.
  Multiple scripts of the same story are equally copyrightable.

JUDGE: WARD, Circuit Judge
Before COXE,  WARD, and NOYES, Circuit Judges.


The late Gen. Lew Wallace wrote a story called "Ben Hur", the copyright
of which belongs to the complainants Harper & Bros. The complainants Klaw
& Erlanger caused the story to be dramatized, and Harper & Bros. duly
copyrighted the dramatizaion and thereupon granted Klaw & Erlanger the
sole right of producing the same upon the stage. The defendant the Kalem
Company also employed a writer to read the story, without having any
knowledge of the copyrighted drama, and to write a description of certain
portions of it. It then produced persons and animals, with their
accoutrements, to perform the actions and motions so described. During
this performance a film of celluloid was rapidly moved across the lens
of a high speed camera, on which a series of negative photographs were
taken, from which a positive film suitable for exhibition purposes was
reproduced. These positive photographs were contained on one film, about  
1,000 feet long, which, being driven at great speed across the lens of an  
exhibiting machine, projects all the motions of the original actors and  
animals in succession upon a screen. The defendant advertises this  
film as suitable for giving public exhibitions of the story of Ben Hur,  
and sent advertisements to, among other persons, proprietors of
theatoriums. At least 500 exhibitions have been given in such theatoriums;
an entrance fee being charged. The defendant did not reproduce the  
whole story, but only certain of the more prominent scenes, such as the  
wounding of the Roman procurator, Ben Hur in the galleys, the chariot  
race, and others.  It does not itself give any public or private exhibitions,
but simply sells or licenses the use of the films. A final decree  
granting a perpetual injunction was entered in the court below, from  
which this appeal is taken.

Section 4952, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3406), gives the
author of a book, and his assigns, not only the sole right of printing,
but also the sole right of dramatizing it, and in case of a dramatic
composition the sole right of performing or representing it publicly.
Section 4964 (page 3413) subjects anyone who shall dramatize a  
copyrighted book without the written consent of the proprietor to the  
payment of damages. Section 4966 (page 3415) provides that anyone  
who publicly performs or represents a copyrighted dramatic composition
without the owner's consent shall be liable for damages not less  
than $100 for the first and $50 for every subsequent performance, and  
if his conduct be willful and for profit he shall also on conviction be  
imprisoned for not exceeding one year.

Two questions are raised: First. Did the defendant, by taking this  
series of photographs, dramatize Ben Hur, in violation of Harper &
Bros.' sole right to dramatize the book under section 4952?  Second.  
Is the exhibition of these photographs by means of an exhibiting
machine in theatoriums, where an entrance fee is charged, a public
performance or representation of a dramatic composition, in violation of  
the rights of Harper & Bros., as owners of the copyright of the book  
and of the dramatic composition, and of the rights of Klaw & Erlanger,
as owners of the performing right, under section 4966?  There may  
be several dramatizations of the same story, each capable of being
copyrighted. Harper & Bros., having given Klaw & Erlanger the sole right  
of performing the particular copyrighted drama, can give some one else  
the sole right of performing a different dramatic composition of the
story (Drone on Copyright, p. 597) ; whereas, Klaw & Erlanger, who are  
the owners only of the right publicly to perform the particular
copyrighted drama, have no right to make another dramatization.
Consequently infringing the copyrighted drama is a different thing from  
infringing the owner's right to dramatize the copyrighted book.  

Answering the first question: The series of photographs taken by  
the defendant constitutes a single picture, capable of copyright as such  
(Edison v. Lubin, 122 Fed. 240, 58 C.C.A. 604; American Mutoscope Co.
v. Edison [C.C.] 137 Fed. 262); and as pictures only represent  
the artist's idea of what the author has expressed in words (Parton v.  
Prang, 3 Cliff. 537, Fed. Cas. No. 10,784), they do not infringe a
copyrighted book or drama, and should not as a photograph be enjoined.  
This distinction between infringement of a copyright of a book and of  
the performing rights is like the distinction in respect to an infringement
between perforated music rolls and sheet music discussed in the  
case of White-Smith Co. v. Apollo Co., 209 U.S. 1, 28 Sup. Ct. 319,  
52 L. Ed. 655, where the court said :

  "There is no complaint in this case of the public performances of
  copyrighted music nor is the question involved whether the manufacturers
  of such perforated music rolls, when sold for use in public performances,
  might be held as contributory infringers."

Coming now to the second question: When the film is put on an exhibiting
machine, which reproduces the action of the actors and animals, we think
it does become a dramatization, and infringes the exclusive right of the
owner of the copyrighted book to dramatize it as well as his right as owner
of the copyrighted drama, and of Klaw & Erlanger's right as owners of the
performing right publicly to produce it. In other words, the artist's idea
of describing by action the story the author has written in words is a
dramatization. It is not necessary that there should be both speech and
action in dramatic performances, although dialogue and action usually
characterize them. Judge Blatchford said on this point, in Daly v. Palmer,
6 Blatchf. 256, Fed. Cas. No. 3,552 :

  "To act, in the sense of the statute, is to represent as real, by
  countenance, voice, or gesture, that which is not real. A character in
  a play who goes through with a series of events on the stage without
  speaking - if such be his part of the play - is none the less an actor
  in it than one who, in addition to motions and gestures, uses his voice.
  A pantomine is a species of theatrical entertainment, in which the
  whole action is represented by gesticulation, without the use of words."

And this court, in the case of Daly v. Webster, 56 Fed. 483, 4 C.C.A. 10,

  "Upon the main point of the case, namely, whether the combination or  
  series of dramatic events (apart from the dialogue) which makes up the
  particular scene or portion of the play claimed to be infringed is a
  dramatic composition, and as such entitled to protection under the
  copyright laws, it is necessary to add but little to the exhaustive
  opinion of Judge Blatchford, reported in Daly v. Palmer, 6 Blatchf. 256,
  Fed. Cas. No. 3,552. The same scene in the same play is elaborately
  discussed by him, and in his conclusion that it is a dramatic composition
  we concur.  In plays of this class the series of events is the only
  composition of any importance. The dialogue is unimportant, and as a work
  of art trivial. The effort of the composer is directed to arranging for
  the stage a series of events so realistically presented, and so worked
  out by the display of feeling or earnestness on the part of the actors,  
  as to produce a corresponding emoticn in the audience, Such a composition,  
  though its success is largely dependent upon what is seen, irrespective
  of the dialogue, is dramatic. It tells a story which is quite as
  intelligible to the spectator as if it had been presented to him in a
  written narrative."

It can hardly be doubted that, if the story were acted without
dialogue, the performance would be a dramatization of the book; and  
we think that, if the motions of the actors and animals were reproduced
by moving pictures, this would be only another form of dramatization.
If the defendant had taken a series of moving pictures of the play as
actually performed by Klaw & Erlanger, the exhibition of them would
certainly be an infringement of the dramatic composition, because it
would tell the story as they tell it, within the decision of
Daly v. Palmer and Daly v. Webster, supra.

It is next objected that the defendant cannot be held as a contributory
infringer, because its films are capable of innocent use; e.g.,  
exhibitions for private amusement. This fact only compels the complainants
to prove that the defendant does promote a guilty use of them. Inasmuch
as it advertises the films as capable of producing a moving  
picture spectacle of Ben Hur, and sends its advertisements to proprietors
of theatoriums with the expectation and hope that they will use  
them for public exhibitions, charging an entrance fee, and inasmuch as  
many of these proprietors have so used them, the defendant is clearly 
guilty of contributory infringement.

Finally, the defendant relies upon section 8, article 1, of the
Constitution, that Congress shall have the power "to promote the progress
of science and useful arts by securing for limited times to authors and  
inventors the exclusive right to their respective writings and discoveries."
It is argued from this that, as these moving pictures only express the
artist's conception of the author's ideas as expressed in the  
words of the copyrighted book or dramatic composition, they cannot  
be said to infringe the author's rights. But the history of the copyright  
law does not justify so narrow a construction of the word "writings".  
The first copyright law of 1790 (Act May 31, 1790, c. 15, 1 Stat. 124),  
included maps and charts as well as books. In 1802 (Act April 29, 1802,  
c. 36, 2 Stat. 171) copyright was extended to engravings, etchings, and  
prints. In 1856 (Act Aug. 18, 1856, c. 169, 11 Stat. 1:38) it was extended  
in the case of copyrighted dramatic compositions to the right of publicly
performing the same. In 1870 (Act July 8, 1870, c. 230, 16 Stat. 212)
it was extended to paintings, drawings, chromos, statues, models,
designs, photographs, and the negatives thereof, and authors were
also allowed to reserve the right to dramatize their works. In 1891
(section 4952, Rev. St. U.S.) authors and their assigns were given  
the exclusive right to dramatize their copyrighted works. The 
construction of the word "writings" to cover these various forms of 
expression, and also to cover the right of giving public performances,
has been acquiesced in for over 50 years. In view of this fact, we have
no difficulty in concluding that moving pictures would be a form of 
expression infringing not the copyrighted book or drama, but infringing  
the author's exclusive right to dramatize his writings and publicly to  
perform such dramatization.

Decree affirmed.