The Law of the
Motion Picture Industry
A Lecture Delivered by
GUSTAVUS A. ROGERS, LL. B]
(OF THE NEW YORK BAR)
At the College of the City of New York
November 28, 1916
NOTE.
In printing this lecture, the author wishes
to take this opportunity to express his ap-
preciation of the kindliness and scholarship
of the Honorable George W. Wickersham,
former Attorney General of the United
States, whose great abilities and sound legal
standards were always a beacon in the first
and early days of the discussion of the law
of the motion picture industry.
The Law of the Motion Picture Industry
A LECTURE
BY
GUSTAVUS A. ROGERS, LL. B.
OF THE NEW YORK BAR
Our justification for discussing the law of the motion pic-
ture industry is that there has come into the civilized world
in the past ten years a medium of expression as revolutionary
and important in its way as the printing-press, the telegraph
and the flying machine ; and, whereas these three inventions
went through years of development and improvement, the
motion picture seems to have sprung, Minerva-like, full
born on the public, with the consequence that there is much
confusion as to the rights of the public and those engaged
in the industry; and a general hurry and bustle among cer-
tain active and honest souls to put some laws on the statute
books without due consideration as to the real necessity for
those laws.
As with Gulliver when he arrived in Lilliputia, the first
thought seems to have been to tie up the industry with laws,
a tendency which I might say characterizes our day, and
which tends to legislation as a substitute for thought.
No one regrets this more than the clear-seeing lawyer, who
realizes that the attempt to cure gastronomic ills by fiat
of government, while appealing to the fiery imagination of
the man on the street, tends to undermine the respect of the
community for all laws, and what is more, it doesn't cure
the dyspeptic.
An interesting analogy might be drawn between the
introduction of the motion picture in our day and the intro-
duction of playing-cards into Europe in the thirteenth cen-
tury. Playing-cards, as we all know, were invented in the
East and were founded on the game of chess, known as the
Four Kings. When they were introduced into Europe they
became so popular with the people that various German
towns passed ordinances, between the years 1400 and 1438,
forbidding their use by the people. In 1440, however, a
concession was made, allowing the people to use playing-
cards on holidays. In England, Parliament passed a law
forbidding their use by common people except on holidays.
In other words, the fact that the people had found some-
thing that amused them was a sign that they had been lured
away from virtue by the devil.
In view of the confusion of public mind, haste of legis-
lative body and hurried decisions by the courts that have
followed the rise of the motion picture industry, it seems
but right that we should take a survey of what is the law,
as it is being applied to this new industry, and what relation
that law has to the fundamental laws and principles, without
which there cannot be built any superstructure that would
seek to take care of new conditions.
What is a motion picture? Professor Hugo Munster-
berg said: "The massive outer world has lost its weight;
it has been freed from place, time and casuality and it has
been clothed in the forms of our own consciousness. The
mind has triumphed over matter and the pictures reel on
with the ease of musical tones. It is a superb enjoyment
which no other art can furnish us."
Coming at a time when the cost of most amusement was
high, the motion picture was at first a plaything, but it is
now accepted as one of the large factors in the history of our
day, with educational and scientific possibilities that had not
been dreamed of. Every day at least ten million people in
the United States go to make up the largest audience and
the largest record of audiences that the world has ever
known.
In a previous lecture, Judge Charles M. Hough, an able
jurist, told you that Commercial Law is composed of cus-
toms of merchants, grafted on the customary law of agri-
cultural and pastoral people the crystallized rules of many
generations of trades all of which is finally accepted by
the courts as general law. He told you, too, that William
Murray, Lord Mansfield, stated most of this law, formu-
lated a system of jurisprudence which was suited to the
English-speaking people, and by his intellectual force se-
cured its acceptance approximately one hundred and fifty
years ago.
But whereas the Commercial Law is the outgrowth of
centuries we find even the beginnings of this law in the
Code of Hammurabi, dug up in Babylon, and evident in the
customs that were accepted even then, 2250 B. C. the law
we are to discuss to-night relates to an industry that has
come suddenly on the world within the last ten years; but
however short the time has been for the law of this industry
to develop, its growth has been rapid; and while to-day the
law may not be quite settled, it nevertheless has passed its
formative period. Perhaps who knows? there may be
a Lord Mansfield in this audience who will so shape the
law, and with such understanding, that the controversies
that are agitating us to-day will be very much things of the
past in another generation.
Touching as the law of this new industry does so many
phases of the general law, we cannot in such a discussion
as we are having to-night expect to do more than bring out
the high lights, and first it may be necessary to go into the
general subject of patents, which at the very outset brought
into the courts those engaged in the motion picture industry.
PATENTS.
The patent phase of the new business produced in the
first years of its development a number of decisions which
were very important at the time, but now have practically
little interest except to the student, because most of those
patents have expired; in fact, the basic patent has been de-
clared invalid by the courts.
Ask the average person who is the inventor of motion
pictures and the reply will be, Thomas A. Edison. Mr.
Edison himself would probably agree that he is the inventor,
but the courts have held otherwise. His claim was asserted
under what is known as the "Edison Film Patent," but was
rejected by our courts as being untenable.*
In one of the cases, Judge Wallace disposed of Mr.
Edison's claim that he was the inventor of the art of taking
still objects and projecting them as moving pictures, or
objects in motion; for, after all, you must understand that
"moving" pictures do not move. What is seen on the screen
is an optical illusion; the eye is led to believe that the objects
are in motion, whereas, in fact, it is the camera and pro-
jecting machine which make them appear to move.
In order to thoroughly understand these decisions, we are
obliged to make reference to what motion pictures are and
the appurtenances for a motion picture exhibition. They
are, first; the camera with which the pictures are taken;
second, the projecting machine with which the film is pro-
jected upon the screen; third, the screen.
The early stages of the industry, although dating back
several years prior to 1907, really begin at that period when
the demand for pictures in this country first became marked.
The result of this demand was that there came upon the
market the productions of about ten American manufac-
turers, all but one or two of whom were manufacturing
their own product, and a few who were importing films from
abroad. There were at that time a number of outstanding
patents upon parts of the camera, as well as upon the strip
film, already referred to as the Edison Film Patent, and
patents upon the component parts of the projecting machine.
The business at that time was conducted in defiance of,
or at least in disregard of, the existing patents. The market
was comparatively open and free until the Spring of 1908,
when the manufacturers divided into rival factions, one
known as the Edison group, who sought protection under
the Edison Film Patent and patents upon the parts of the
camera ; the other, the so-called Biograph group, who sought
protection under patents upon the parts of the projecting
machine.
*See the decision of Mr. Justice Wallace in Edison v. The American Mutascope
Company, 114 Fed. Rep. 926. See also Edison v. American Mutascope & Biograph
Company, 151 Fed. Rep. 767, and Motion Picture Patent Company v. Chicago Film
Exchange, 30 Appeal Cases, District of Columbia, p. 285.
8
FORMATION OF COMBINATION.
The Edison group formed a combination of manufac-
turers, and licenses were issued under the so-called Edison
Film Patent, and the Biograph Company, with their group,
formed a combination under the projecting machine patents.
They immediately started litigation under the patents, each
side seeking to restrain the other. The Edison people were
asserting the invalidity of the projecting machine patents
and belittling the patents on the machine, and the Biograph
group were likewise belittling the Edison patents.
This continued until about the early Fall of 1908> when
the factions came together, and all patents were brought
into a holding company, called the Motion Picture Patents
Company, and a new system was devised, which was there-
after condemned by the Federal Court at the suit of the
Government, as being a combination in restraint of trade
under the Federal Anti-Monopoly Act*
After all the patents had been assigned to the Motion
Picture Patents Company, a complicated system of licensing
under the patents was devised, with license agreements to
the manufacturers, who were known as the "Licensed Manu-
facturers." These manufacturers did business with the
rental companies, or middlemen, who were obliged to agree
that they could deal only wtih theatres or exhibitors who
recognized the validity of the patents, and who would bind
themselves to use exclusively the products of the Licensed
Manufacturers.
With the Eastman Kodak Company an agreement was
made that the entire output of the raw stock, or base film,
upon which the pictures were printed should be supplied by
the said Eastman Kodak Company only to the manufac-
turers in the combination, excepting about three per cent, of
the output, which the Eastman Company was permitted to
distribute for scientific, educational and governmental pur-
poses. With the market in this condition, it may readily be
understood that competition was completely shut off.
*See United States v. Motion Picture Patents Co., opinion of Dickinson, J., Dis-
trict Court of the United States for the Eastern District of Pennsylvania, 225 Fed.
Rep., p. 800.
COMBINATION DECLARED ILLEGAL.
The final step in the combination, as found by the courts,
was that after the manufacturers had succeeded in gather-
ing in the rental companies and tying up the exhibitors, they
formed a sole selling agency of the Licensed Manufacturers,
known as the General Film Company. This company pro-
ceeded to, and did, successfully, absorb or put out of business
all of the then existing rental companies, with the exception
of Mr. William Fox's Company, whose resistance to the
exactions and demands of the Motion Picture Patents Com-
pany and Licensed Manufacturers led to the suit under the
Federal Anti-Trust Law by the Government for the disso-
lution of the combination. This suit resulted in the decision
of Mr. Justice Dickinson, granting judgment in favor of the
United States Government, already referred to.
To those who are interested in this subject, a reference
will be found to the activities of the General Film Company
in the report of Judge Clayton, as Chairman of the Com-
mittee on Judiciary of the United States Senate, in vol. 2,
p. 1,964, of the report of the hearings before that Com-
mittee in the Sixty-third Congress, second session, where he,
speaking for the Committee, said:
"Where the concern making these contracts (the 'tying contract') is
already great and powerful, such as the United Shoe Machinery Company,
the American Tobacco Company and the General Film Company, an exclu-
sive or tying contract, made with local dealers, becomes one of the greatest
agencies and instrumentalities of monopoly ever devised by the brain of
man. It completely shuts out competitors, not only from trade in which
they are already engaged, but from the opportunities to build up trade in
any community where these great and powerful combinations are operating
under this system of practice. By this method and practice the Shoe Ma-
chinery Company has built up a monopoly that owns and controls
the entire output of machinery now being used by all great shoe
manufacturing houses of the United States. No independent manufacturer
of shoe machines has the slightest opportunity to build up any considerable
trade in this country while this condition obtains. If a manufacturer who
has shoe machines of the Shoe Machinery Company were to furnish and
place a machine manufactured by any independent company in his estab-
lishment, the Shoe Machinery Company can, under its contracts, withdraw
all of their machinery from the establishment of the shoe manufacturer and
thereby wreck the business of the manufacturer.
"The General Film Company, by the same method practiced by the Shoe
Machinery Company, under the lease system, has practically destroyed all
competition and acquired a virtual monopoly of all films manufactured and
sold in the United States. When we consider the contracts of sale made
under this system, the result to the consumer, the general public and the local
dealers and his business, it is even worse than under the lease system."
10
As a result of this report, several provisions were in-
serted in the Clayton Law, which amended the Sherman
Anti-Monopoly Law, providing as follows:
"Sec. 2. That it shall be unlawful for any person engaged in com-
merce, in the course of such commerce, either directly or indirectly to dis-
criminate in price between different purchasers of commodities, which com-
modities are sold for use, consumption or resale within the United States or
any territory thereof, or the District of Columbia, or any insular possessions,
or other place under the jurisdiction of the United States, where the effect
of such discrimination may be to substantially lessen competition or tend to
create a monopoly in any line of commerce ; Provided, That nothing herein
contained shall prevent discrimination in price between purchasers of com-
modities on account of differences in the grade, quality or quantity of any
commodity sold, or that makes only due consideration for difference in the
cost of selling or transporting, or discrimination in price in the same or dif-
ferent communities, made in good faith to meet competition ; And provided
further, That nothing herein contained shall prevent persons engaged in
selling goods, wares or merchandise in commerce from selecting their own
customers in bona fide transactions and not in restraint of trade.
"Sec. 2. That it shall be unlawful for any person engaged in com-
merce, in the course of such commerce, to lease or make a sale or contract
for sale of goods, wares, merchandise, machinery, supplies or other com-
modities, whether patented or unpatented, for use, consumption or resale
within the United States or any territory thereof, of the District of Columbia,
or any insular possession or other place under the jurisdiction of the United
States, or fix a price charged therefor, or discount from, or rebate upon,
such price, on the condition, agreement or understanding that the lessee or
purchaser thereof shall not use or deal in the goods, wares, merchandise,
machinery, supplies or other commodities of a competitor, or competitors of
the lessor or sellor, where the effect of such lease, sale or contract for sale,
or such condition, agreement or understanding may be to substantially lessen
competition or tend to create a monopoly in any line of commerce."
This enactment was the result of a hearing devoted by
the Judiciary Committee of the Senate to the subject of
motion pictures, and for a full discussion reference may be
made to the address of your lecturer before that Committee,
which will be found in the volume containing hearings be-
fore the sub-committees of the Committee of the Judiciary
of the United States during the Sixty-first and Sixty-second
Congress, vol. 1, pp. 470 to 502.*
*See also Mr. Rogers' letter to President Wilson of July 27, 1914, incorporated
in the speech of Senator Crawford, reported in the Congressional Record of July 30,
1914, at p. 14,145.
11
The result of the filing of the petition by the Govern-
ment in the anti-trust suit, and particularly since the decision
of the court, announced in November, 1915, has been that
the market was opened and competition was restored, so
that now it may be said that the opportunity for competition
is fairly free.
This result, however, was not accomplished until there
had been a very interesting clash of judicial opinion on the
question of the right of individuals, working in combination,
to refuse to continue trade relations with another individual
in furtherance of a conspiracy to monopolize trade.
Professor Charles T. Terry, in a lecture before this
College, called your attention to the fact that the law would
not compel a man to deal with another in contractual form,
whether his refusal to deal with the other in the absence of
contractual rights was for any cause or no cause.
When this question came before Mr. Justice Learned
Hand,* whose legal acumen and ability is acknowledged, he
said in part:
"I am by no means willing to agree that if ten manufacturers agree
together to monopolize the function of middlemen, and in pursuance of that
agreement they discontinue selling to existing middlemen and so ruin them,
the middlemen have no relief. It is very well to say that each manufacturer
may refuse to sell to whom he chooses, and so he may, but his right not to
sell is not necessarily so absolute that he can use it as a means of effectu-
ating an illegal purpose."
"That an act is one of a series forbidden as a whole, is an incident often
very relevant legally. If it were not we should never have the element
of intent in crime or torts."
The contra was held by the Circuit Court of Appeals,
reversing Mr. Justice Hand, the opinion being written by
Mr. Justice Lacombe, as follows :
"It is asserted by defendant-appellant that at no time prior to the insti-
tution of this suit was there any contract between it and the complainant,
whereby it had agreed to continue to supply complainant with films of its
manufacture for any period of time. We find nothing in the record to indi-
cate that there was any such contract, and we do not understand that com-
plainant contends that there was.
The Greater New York Film Rental Company v. The Biograph Company, et al..
decided July 12, 1912.
12
"This being so, we are satisfied that if all the facts averred in the bill
were proved at final hearing, and all the inferences of fact which com-
plainant contends for were drawn from the facts thus proved, and that if
upon some theory or other of those suggested it were held by the trial court
that complainant had suffered wrong at the hands of those whom it alleges
conspired to injure its business, and that for such wrong it was entitled to
some relief against the conspirators, or some of them, it could not obtain
specific relief of the sort accorded by this preliminary injunction, viz., a
decree compelling the Biograph Company to sell films to complainant against
that company's wish." (203 Fed. Rep., p. 40.)
With the highest respect for the Circuit Court of Ap-
peals in this District and the Judges who compose it, I be-
lieve that the view of Judge Hand is the correct one. The
view of Mr. Justice Lacombe is that with the exception of
a public service corporation, or a company engaged in public
utilities, one cannot be compelled to have or maintain trade
relations with another. To subscribe to this view would, in
short, be saying that a conspiracy can be successfully carried
on, using so-called lawful means, i. e., the right to refuse
to contract, for the accomplishment of an unlawful end or
purpose, the ruining of a competitor by the persons so com-
bining to refuse to deal with him.
This theory does violence to the generally accepted doc-
trine that a rightful means cannot be used for the purpose of
accomplishing a wrongful end. There is abundant authority
in the books to sustain this proposition. Those who are
interested in the further pursuit of this inquiry will find an
expression of it in the opinion of Mr. Justice Dickinson, al-
ready referred to (203 Fed. Rep., p. 39), in which he says
in part :
"The conspiracy under this statute, i. e., the Federal Anti-Monopoly
Act, as at common law, may have as an element the seeking of an unlawful
end or the employment of unlawful means."
It was also decided in the same case that the fact that
the Patents Company, or the manufacturers, were the own-
ers of patents upon the camera, or parts thereof, upon the
projecting machine, or parts thereof, or in fact upon the
film itself, was no defense to an unlawful conspiracy or a
monopoly creating a restraint of trade. Judge Dickinson
13
stated that the ownership of patents cannot be accepted as
a defense to the charge of unlawful combination.*
The defendants, failing to succeed in their contention in
the Government litigation, that their patents, or alleged
patents, afforded them justification for what would other-
wise be unlawful, made the novel suggestion that motion
pictures as such were not articles in common use and that
they were not the subject of interstate commerce.
The manufacturers asserted that "photo-plays" were
artistic productions "emanating from the brain of the
author," and the "artistic development" of the story by
living actors. Therefore, they argued, it was not a motion
picture film, but in reality the artistic creation, imagination
and development of an author's brain, supplemented by the
acting ability of the principals engaged in the performance
that was the subject matter in dispute.
To understand the importance of this we need only have
reference to the fact that the Federal statue was inended to
deal with articles sent into the channels of interstate com-
merce, and that the Anti-Monopoly or Trust Act of the State
of New York, familiarly called the Donnelly Anti-Trust
Law, (the author of which is Mr. Justice Donnelly, of our
Supreme Court) , which act is now known as Section 340 of
the General Business Law, formerly Chapter 690 of the
Laws of 1899, is intended to cover articles in common use
dealt in intrastate commerce.
The claim made by these defendants found its original
justification in the decision of Mr. Justice Rosalsky, of the
See also Bement v. National Harrow Co., 186 U. S., 70.
Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 154 Fed. Rep., 358.
Indiana Manufacturing Co. v. J. I. Case Machine Co., 154 Fed. Rep., 365.
Goshen Rubber Works v. Single Tube Auto & Bicycle Tire Co., 166 Fed. Rep., 431.
Bauer v. O'Donnell, 229 U. S., 1.
United Shoe Machinery Co. v. La Chatelle, 212 Mass., 467, pp. 480 and 481.
Henry v. Dick Co., 224 U. S., 1, dissenting opinion of Ch. j. White.
Virtue v. Creamery Package Mfg. Co. and ano., 227 U. S.. 6.
Blount Manufacturing Co. v. Yale & Towne Manufacturing Co., 166 Fed. Rep., 555.
Waltham Watch Co. v. Keene, 202 Fed. Rep.. 225.
U. S. v. New Departure Manufacturing Co., 204 Fed. Rep., 107, 114.
International Harvester Co. v. Missouri. 234 U. S., 199, 209.
U. S. v. International Harvester Co., 214 Fed. Rep., 987.
Broomer v. McQuenan, 14 How. (U. S.), 539, 548.
Patterson v. Kentucky, 97 U. S., 501.
Webber v. Virginia, 103 U. S., 344, 347.
National Harrow Co. v. Hench, 83 Fed. Rep.. 36.
National Harrow Co. v. Hench, 84 Fed. Rep., 226.
National Harrow Co. v. Hench, 76 Fed. Rep., 667, 669.
14
Court of General Sessions in a proceeding by The People
directed against the so-called "Theatrical Trust," for vio-
lating our State Anti-Trust Law ; and in a very complete and
thorough opinion* Judge Rosalsky disposed of the con-
tention by holding that plays and dramas were not, under
our State statute, articles or commodities of common use,
and that, however oppressive, the acts of the alleged com-
bination did not come within the definition of our law, and
that, therefore, the defendants had not violated the statute.
This was followed by the decision of Mr. Justice Pendle-
ton, which was affirmed by our Appellate Division, in an
action against Mr. Hammerstein by the Directors of the
Metropolitan Opera House, t under a contract he had
made with them, in which he asserted that the acts of the
managers of the Metropolitan Opera House were a viola-
tion of the Federal Anti-Trust Law, a claim which Mr. Jus-
tice Pendleton denied, saying, with respect to the opera, that
although the troupe would move from one state to another,
carrying scenery and stage appurtenances, that they were
not engaged in interstate commerce. But, whatever the
situation may be with respect to theatricals, or to the opera,
the claim made by the defendants was rejected by Judge
Dickinson. In his opinion he entirely ignored the claim.
But the contention, if at all arguable, was effectually dis-
posed of in the illuminating brief submitted by Mr. Edwin
P. Grosvenor, Assistant United States Attorney General.
In this connection we may briefly refer to a case before
Judge Hough, of our Federal Court in this District always
a reliable authority in which, in determining the relation
of a photo-play to the drama, it was held in Kalem Company
v. Harper Brothers, 222 U. S., 55, that:
"An exhibition of a series of photographs, of persons and things ar-
ranged on films as moving pictures, and so depicting the principal scenes
of an author's work as to tell the story, is a dramatization of such work,
and the person producing such films and offering them for sale, or exhibi-
tion, even if not himself exhibiting them, infringes the copyright of the
author.":):
*People v. Klaw, 55 Misc. Rep., p. 75.
t!62 A. D., 691.
JRevised Stat., Sec. 4,952, as amended by Act of March 3, 1891, Chap. 565; 26 Stat.,
Sec., 1,106.
15
The court ruled that the copyright upon the late General
Lou Wallace's book, "Ben Hur," was infringed by portray-
ing the story upon the motion picture screen. This was the
first case that came into the United States Supreme Court
upon this proposition. The court in disposing of the case
said:*
"It is said that pictures of scenes in a novel may be made and exhibited
without infringing the copyright and that they may be copyrighted them-
selves * * * *. Whether this concession is correct or not, in view of the
fact that they are photographs and a lawful dramatization of the novel,
we need not decide. We will assume that it is. But it does not follow that
the use of motion does not infringe the author's rights. The most innocent
objects, such as the mirror * * * *, may be used for unlawful purposes, and if,
as we have tried to show, moving pictures may be used for dramatizing the
novel, when a photograph is used in that way they are used to infringe a
right which the statute reserves."
What the court had reference to with respect to the mir-
ror illustration was its statement at Page 61 of the same
case. The court said :
"But if a pantomime of Ben Hur would be a dramatization of Ben
Hur, it would be none the less so if it was reflected by mirrors and not by
direct vision of the pictures, as sometimes has been done in order to produce
ghostly or inexplicable effects. The essence of the matter * * * * is not
the mechanical mechanism employed, but that we see the event, or story,
lived. The moving pictures are only less vivid than reflections from a mir-
ror. With the former as with the latter, our visual impression what we
see is caused by the real pantomime or reel men through the medium of
mechanical forces, and that the machinery is different and more complex.
How it would be if the illusion of men were produced from paintings instead
of from photographs of the real things, may be left open until the question
shall arise."
It may therefore seem that the question has not been
definitely determined as to whether a photo-play is really "a
commodity" or whether as such it comes under the jurisdic-
tion of the Federal Anti-Monopoly Law. I am, however,
of the opinion that whenever it will become important to
effectually dispose of the question, that it will be found that
there is no difference between the photo-play and the cellu-
loid record which is used upon the phonograph, or the pic-
ture postal-card. For, after all, what is sent in commerce
is a strip, or strips, of film, contained in rolls of approxi-
mately a thousand feet each. On these are still photographs
that are commercially useful when put into a projecting
machine and ground out to portray the story on the screen,
Page 62 (222 U. S.)
16
in the same manner as the phonograph record is put upon
the machine for the purpose of reproducing the musical
sounds or matter contained on the record.
Or, perhaps, using the analogy of a book or novel. What
is sent in commerce is really not the author's imagination,
or the result of his brain work, but a number of pages
bound together for the purpose of commercial sale of an
article of commerce ; to wit, a book, and upon this proposi-
tion the courts have already held that a book, or set of
books, even though copyrighted, may be the subject of a
monopoly, or combination, in restraint of trade, and that
it is no answer to the prosecution under the Anti-Monopoly
Law to say that books are copyrighted.*
Much of what here has been said is important only as giv-
ing a brief historical review of the industry. It relates
largely to the patent phases of the situation and the rights
asserted under the patents. We will refer now to another
situation.
RESTRICTION OF USE OF FILM ILLEGAL.
There is now pending and undetermined in the Supreme
Court of the United States an action entitled "Motion Pic-
ture Patents Company, petitioner, v. The Universal Film
Manufacturing Company, and others, defendants," for a
review of a decision of the United States Circuit Court of
Appeals for the Second Circuit, reported in 235 Fed. Rep.,
p. 398, decided June 15, 1916, which affirmed the decision of
Judge Hough in the same case, dismissing a bill in equity
filed by the Patents Company, who had claimed that there
was an infringement of the patent on a part of the project-
ing machine in using thereon motion picture film other than
that designated by the patentee.
The Patents Company, in taking over a patent known
as the Latham Loop Patent, had agreed that any projecting
machine containing the Loop Patent was to be sold under an
agreement that the purchaser of the machine would only use
it to show picture film designated as Reissue Patent No.
*See Straus v. American Publishers Association 231 U. S., 222, reversing the same
case in our Court of Appeals, 193 N. Y., 496.
17
12,192; that is, the Edison Film Patent. The petitioner
asserted that the owner of the machine had exhibited on same
film other than that designated by the Patents Company.
This condition was held to be violative of the Federal Anti-
Trust Statute and therefore unenforcible, the court refus-
ing to follow the opinion in the so-called "Mimeograph
Case" of Dick v. Henry, 224 U. S., 1, and asserting that
under the doctrine of Bauer v. O'Donnell, 229 U. S., 1 (The
Sanatogen Case), the manufacturer of the machine could
not control the use of the machine after a sale there-
of, any more than the owner of a patented article
could fix the price thereon after he had licensed the manu-
facturer thereof to make and sell it and put the article into
commerce.*
In the original opinion of the Circuit Court of Appeals,
Mr. Justice Augustus M. Hand discussed the decision re-
lating to the phonograph and Victor Talking Machinef
which is now upon appeal to the United States Supreme
Court.
If the Supreme Court of the United States should sus-
tain the decision of our Circuit Court of Appeals, it will
be the settled law that owners of patents upon parts of the
projecting machine cannot designate what film may or may
not be used upon the projecting machine, and that the pur-
chaser thereof, having bought and paid for the machine,
may use upon it such film as he may see fit to use.
Apropos of the patent phase of the question, a point
was argued on behalf of the United States in the Govern-
ment suit, to the effect that while the negative of the film
may or may not be subject to a patent, the positive print,
that which is commercially used, is not covered by the patent.
The argument to support this was based on the claims made
in the patent. Judge Wallace, in his opinion already re-
ferred to, said:
"The patent in suit pertains merely to that branch of the art which
consists of the production of suitable negatives."
See the decision of the Circuit Court of Appeals in the same case on a petition
for rehearing, which was decided on August 4, 1916, and reported in 235 Fed. Rep.,
p. 401.
tSee Victor Talking Machine Company v. Strauss, 230 Fed. Rep., 449.
18
And later, in the same opinion, he said:
"He (Mr. Edison) was not the first inventor of apparatus capable of
producing suitable negatives."
At no place in the patent claims, said the counsel for the
Government, is there any reference to the positive print.
The description is only of the negative film. Hence
he argued that there was a similarity between the production
of the positive films from the print made from the negative
and the use of the so-called "arrot" dredger used in the man-
ufacture of enamel-ware, which was the subject of investi-
gation by the United States Supreme Court in the Bathtub
Trust suit. Concerning this Mr. Justice Dickinson said in
his opinion:
"As a conclusion to the whole discussion, we deem the bath-tub case to be
decisive of the principle contended for by the United States * * * *. We
would feel constrained, on the authority of this case alone to find that the
agreements and acts of the defendants in the present case went far beyond
what was necessary to protect the use of the patents. * * *"
In this discussion of monopoly, patents and copyright, we
are in a legal way establishing our industry, or in other
words, showing that it is entitled to be treated equally with
other industries. Through these decisions we know now
that the industry has the same rights as other industries, and
despite its more or less vagabondish beginnings, money in-
vested in it, time devoted to it and the persons engaged in
it, are entitled to the same protection as those engaged in
other industries.
PREJUDICE AGAINST MOTION PICTURE
EXHIBITIONS.
For, and this is a point that in discussing the new law,
a law for this new industry, we are very apt to forget : That
the moving picture industry does not come into court in the
beginning entirely free of that historical prejudice that all
Anglo-Saxon law has had for generations regarding any-
thing pertaining to the theatre.
The Anglo-Saxon law was derived from the Roman law,
and the Romans, under the Greek influence, where the actor
was a person of distinction, regarded the theatre as their
noblest institution. Yet the Anglo-Saxons wrote into their
statutes this provision, passed by the House of Parliament
in 1597:
19
"All persons that be, or offer themselves to be proctors, patent gatherers,
or collectors for gaols, prisons, or hospitals, or fencers, bearwards, common
players of interludes, or minstrels wandering abroad (other than players
of interludes belonging to any baron of this realm, or any other person of
greater degree, to be authorized to play under the hand and seal of such
baron or personage), all jugglers, tinkers, pedlars and petty chapmen wan-
dering abroad, etc., shall be adjudged and deemed rogues, vagabonds and
sturdy beggars and punished as such."
Strange as it may seem, that law is still on the statute
books of England, and while it is no longer operative, the
feeling that the actor's was not a regular business did not
disappear in England until a great innovation was under-
taken, not through the passing of any statute or act of Par-
liament, but through the knighting of an actor, Henry
Irving.
It is prejudice such as this against the actor showing it-
self in everything connected with the theatre, that goes
sometimes to confuse those who have not fully grasped the
fundamental principles of law, and who have not felt to the
full what Walter Pater calls "the aesthetic charm of clear
thought." It was nothing more than prejudice that for
years blocked the Workmen's Compensation Act; it was
prejudice that declared you could not regulate the hours of
labor, and recently we have seen a "revolutionary" consti-
tutional amendment adopted, after a hundred years acces-
sion to the Federalist prejudice against popular election of
Senators, on the ground that the common people should not
be trusted too much with a voice in their government.
Our new industry is now properly open to all who have
the money to invest, with this difference : That here again
the old-time prejudice is found, born of the primitive condi-
tions and the religious prejudice that attended the first years
and the incubating period of the modern theatre in England.
As in every industry where the profits are apparently large
and the opportunity for unfair dealing is lucrative, the un-
scrupulous endeavored to assume unto themselves the profits
which justly belonged to another. This brings us to a con-
sideration of the subject of unfair competition.
UNFAIR COMPETITION.
Under this may be included the violation of an author's
or producer's copyright, to which some reference has al-
20
ready been made, or the simulating or pirating of a popular
photo-play, or scenario, to which I have briefly alluded.
In this connection I call attention to the fact that mere
similarity of title, or of theme, or theory, is not of itself
violative of the author's or producer's rights, even though
he be first in the field.
As in the matter of trade names, the rule is that the use
of similar trade names cannot be enjoined, unless fanciful
and original. Thus, if a man were to use the name "Ameri-
can Girl," or "Merry Christmas," or "Bohemian," to desig-
nate the name of his company, or motion picture corpora-
tion, these names, not being fanciful or original, could not be
subject to be restrained.*
It has been held to be unfair dealing for a photo-
play company to grant to another exclusive right to produce
moving picture films and thereafter to grant a right to an-
other to exhibit them.f
When the author has given a contract to another for the
exclusive right to produce a play, it is a violation of his con-
tract to permit another to produce his play by moving pic-
tures, and this is true although the contracting parties did
not contemplate a moving picture production of the play,
because then impossible. J
In this connection a claim was made that since the con-
tract for the production of the drama on the stage with
living actors, provided it was to be shown only in first-class
theatres and in a first-class manner, the parties did not con-
template that the author reserve to himself the right to pro-
duce it in a second-class theatre or in a second-class manner.
In the light of the large production of motion picture plays,
such as "Intolerance," "Birth of a Nation," "Civilization,"
"A Daughter of the Gods," etc., in the first-class theatres in
New York, such a reservation would not be regarded but
as humorous.
*Wolff Brothers Company v. Hamilton Shoe Company, 165 Fed. Rep., 413; Writ
of Certiorari denied, 241 U. S., 215.
Florence Manufacturing Company v. Dowd, 178 Fed. Rep., 73; reversing S. C.,
171 Fed. Rep., 122.
American Brewing Company v. Bienville Brewery, 153 Fed. Rep., 615.
tLasky Feature Play Company v. Celebrated Players Film Company, 214 Fed.
Rep., 861.
tSee Frohman v. Fitch, 164 A. D., 231.
21
TRADE MARKS.
Each country of course has its own trade mark law and
they differ materially from each other. Frequently the trade
mark or name is a valuable asset. For this reason they are
frequently registered as such. In the South American
countries there has been much confusion as to trade names
and trade marks of film companies, for it seems there that
the first user gets the right, no matter how extensively and
favorably the name may be known in other countries. An
illustration of South American law on the subject of registra-
tion is that of Ecuador. The office of registration is known
as the Ministrode Asciendo Quito. The registration is for
twenty years, but it may be renewed for periods of fifteen
years. There are stipulated fees for original registration
and renewal. The right to the trade mark is vested in the
individual first registering it and no legal proceedings can be
instituted before registration of the trade mark to prevent
actual or intended infringement. This is substantially the
law in Argentine, Brazil, Paraguay, Uruguay and Peru.
COPYRIGHT LAW.
The Copyright Law finds its origin in the Federal Con-
stitution, which provides as follows :
"Art 1, sec. 8, subd. 8.
"To promote the Progress of Science and Useful Arts, by securing for
limited times to Authors and Inventors the exclusive right to their respec-
tive writings and discoveries."
Congress, in pursuance of this power conferred by the
Constitution, has devised the copyright laws. Therefore,
most of the cases to which we will refer are those contain-
ing the expression of the Federal Court upon the subject;
but there will, of course, be found authorities in the state
courts covering the copyright phase, which pronouncements
of state courts are not based upon or under the copyright
law, but because of the copyright law.
Of course, copyright of the motion picture was not pro-
vided for by the original copyright statute, and it was not
until the year 1909 that the Federal courts recognized that
on account of the growth of this industry that copyright
22
laws were necessary. Accordingly, the copyright statute was
amended to include motion pictures.*
It was the amendment of August 24, 1912, that first gave
motion picture plays a place in the Copyright Law, but be-
fore that time, by a decision in Edison v. Lubin, 122 Fed.
Rep., p. 240, it was adjudicated that motion pictures were
copyrightable under the law as photographs.
In construing the word "author," under section 2 of the
Copyright Law, the Federal Court, in Gaumont v. Hatch,
208 Fed. Rep., p. 378, held that the person or company who
produced a photo-play was an author within the meaning
of the copyright statute.
I have already called attention to the fact that the United
States Supreme Court has held that for the purpose of the
Copyright Law motion picture photo-plays are considered
dramas. t
The title of a motion picture play as such cannot be
copyrighted. There is abundant authority which sustains
this proposition with respect to motion picture plays, or
scenarios.
What may be copyrighted is the story, or as it is called
in the trade, the scenario, and this copyright protects the
story the same as a copyright upon a play or a book, but it
does not protect an author from attack, or give him a mon-
opoly upon a theme or a subject which is not original to the
play or story itself. For instance, in a case that was before
the courts, where the play or story was written around the
subject of the theory of "destiny;" the mere fact that an
author conceived the idea of writing a play concerning des-
tiny did not give him the exclusive right, because he had a
copyright, over another person who later also conceived the
idea of a story based upon destiny. The reason for this, as
*See Copyright Act of March 4, 1909, as amended by the Act of August 24, 1912,
Section 4.
tHarper Brothers v. Kalem Company, 222 U. S., p. 55.
jSelig Polyscope Co. v. Unicorn Film Service Corp.. affecting the title of "The
Rosary"; opinion by Mr. Justice Cohalan, N. Y. Sup. Ct.. reported in Law Journal
of September 16, 1916, at p. 1,856.
Haroer v. Raynolds, 67 Fed. Rep., 004, 905, affecting the right to the story
"Trilby."
23
stated by the court, is that the theme, or theory, was outside
of the play.*
Similarly, another case cited by Judge Mayer, held that
the owner of a copyrighted play, based upon the story of
hypnotic influence, was not entitled to deprive others from
using a like situation.!
Judge Mayer, citing authorities to sustain his position,
said:
"Since both stories devolved their idea from a common source, the com-
plainant had no case."
A motion picture play has been held to be a "writing"
within the language of the Federal Constitution. In Edison
v. Lubin, 122 Fed. Rep., p. 240, the Court, following the
decision in a case affecting a copyrighted photograph of
Oscar Wilde which Sarony, the photographer, had pro-
duced:); so held, and in the case of the American Music
Company v. Edison Manufacturing Company, 137 Fed.
Rep., 265, a motion picture was held to be a writing. The
Court said:
"It is a writing within the constitutional sense and the proper subject
of a copyright."
The common law rights of the producer of motion pic-
ture plays, not copyrighted, was before our Court in Uni-
versal Film Mfg. Company v. Copperman. The opinion
will be found in full at 218 Fed. Rep., 577. It affirmed the
decision of Judge Hough in the lower court, who said :
"There was an analogy between the production of a motion picture
play and a dramatic performance, and that it made no difference if the play
was mechanically produced."
Quoting Judge Hough, the Court said:
"If there is no film, there is no play, and unless the film is projected
upon a screen, the film is worthless. The value of the film depends entirely
upon the popularity of the play."
The Circuit Court of Appeals in the same case said that
the producer of a motion picture play had the common law
rights of property in the intellectual conception of the sce-
* See opinion of U. S. District Court, Judge Mayer, in Vernon v. Shubert. 220 Fed.
Rep., 694.
tSee Bachman v. Belasco, 224 Fed. Rep., p. 815.
JBorrow-Giles Lithographing Company v. Sarony, 111 U. S., p. 53.
24
nario of the play expressed in words, and the intellectual con-
ception of the photo-play expressed in actions. Continuing,
the Court said:
"When the producer sold a positive film, which was the only means
of performing the play, it conferred the performing rights upon the pur-
chaser and his assign. That no one by virtue of that sale would have ac-
quired the right to re-enact the play and take a negative of it, or make, if
that could be done, a new negative from the positive film."
The Court later said:
"That would be inconsistent with the producer's common law property
in the photo-play, and that the mere performing right which it had con-
ferred upon the owner of the film, he exercises a performing right by one
or by many purchasers of positive films would be entirely consistent with the
producer's common law property in the play itself."
A review of this case was denied by the Supreme Court
on December 14, 1914.
A corporation may be an author of a motion picture
play, and within the copyright act, section 62, the word
"author" is sufficiently comprehensive to include a corpora-
tion as well as a natural person.*
WHAT MAY BE COPYRIGHTED UNDER THE
COPYRIGHT ACT.
1 A Scenario.
2 The Picture.
In practice it is very common for the producer to first
copyright the scenario, or story, of the plot, and then after
production send the reels of pictures themselves to the copy-
right office for registry.
Here we might properly consider the rights of foreign
authors under our copyright law, if time permitted, and the
rights of the owners of dramatic plays, by license or agree-
ment from the author as to the exhibition thereof of photo-
plays. The law on this subject is not entirely clear; the con-
flict of decision cannot be duly reconciled and time will
not permit me to do more than make a passing reference
that there is such a situation.
"See Gaumont Company v. Hatch, 208 Fed. Rep., p. 381.
25
CENSORSHIP.
There is a movement for a National Censor, and in
some States a State Censor has already been provided for.
There is no more need for a censorship for a film than there
is for the printing press, and if you are going to censor the
one, you must certainly censor the other; and if ever the
time when a censorship of either the press or the film should
be an accepted and universal fact in this country, then the
principles of democratic government are no longer part of
our abiding faith. There has never been a censor of the
theatre in this country, so that in those States in which the
movement against free expression has succeeded in putting
on the statute books a censor for the motion pictures, an
innovation has been undertaken, which would be very splen-
did if it were not for the fact that in a very short time even
these States will find that there is nothing for the censor to
do nothing that he would dare do that the police power
has not always been ready and able to do.
In England there has always been more or less censor-
ship, although during the period of the most active censor-
ship, the period of The Restoration, the plays were more im-
moral than at any other time. Coleman, the dramatist,
acted as censor, and his plays were as immoral as the worst
plays of his day.
When the photo-play came into existence, there was
naturally a rush to include under the censorship any new
form of entertainment or drama. As Messrs. Fowell and
Palmer have pointed out in their interesting monograph on
English censorship : "There wa v s nothing that stirred the
reform element so much as the thought that the English
populace were enjoying themselves," and the fact that the
populace had taken the cinematograph to its bosom, without
reserve and with enthusiasm, was sufficient reason to the
reform element to believe that there was something the
matter with the cinematograph.
The first attack was made on the ground that the Sunday
law was being violated, and this was followed by a charge
26
that inasmuch as these pictures were exhibited in the dark,
darkness was an evil, as it tended to encourage sexual im-
morality. In fact, this was the situation in our own city
and State, for in December, 1908, at a public hearing,
(Mayor McClellan's report of which will be found in a
volume in the Mayor's office, entitled "Hearing on Moving
Picture Shows, December 23, 1908,") eminent clergymen,
educators and public spirited citizens of national repute
argued for the abolition of the motion picture theatre on
practically the same grounds. Some of these men are now
the strongest advocates of the motion picture theatre as a
neighborhood center for the dissemination of education,
learning and culture.
The lecturer appeared before the Mayor at that hear-
ing, and some of the assertions I then made as to the future
of this industry were regarded as extremely humorous; in
fact, I stood almost alone except for the moral support of
Commodore J. Stuart Blackton, of the Vitagraph Com-
pany, and we were regarded as being iconoclasts. As a re-
sult of this hearing, the Mayor cancelled the license of every
motion picture theatre in the City of New York, numbering
about 600, but his action was declared by the court to be
arbitrary, capricious and whimsical, and his act was enjoined
and restrained.*
After the Sunday objection, the attack in England was
on the films themselves, and several cases were brought to
court. A feature was made of the fact that boy offenders
were taught to steal by seeing feats of great burglary on the
cinematograph. This led to a hue and cry for a censor-
ship, leading one cynical observer to ask the question where
the other burglars of the past few thousand years had
learned their business before the invention of the cinemato-
graph. Finally a censor was appointed, Mr. G. A. Redford,
and the spirit with which he undertook the job may be
judged from the lists of things which, on his inauguration,
he promised to keep off the films :
"No cremations.
See Wm. Fox v. McClellan, 62 Misc., 100.
27
"No final, tear-compelling scenes at funerals, such as lowering the body
into the grave, and so on.
"No scenes representing murder, sudden death, or suicide.
"No 'faked' representations of disasters by sea or land or air.
"No mixed bathing. No 'compromising situations.' No cock fights, no
dog fights, and nothing where unnecessary cruelty is brought in, either to
man or beast.
"All Biblical scenes to be watched very carefully particularly anything
from the New Testament.
"No Sovereigns, Judges, Ministers, or such high officials of the land to
be treated in an unbecoming or ridiculous manner, and no living individual
to be lampooned."
Naturally, in France, where the arts are understood and
appreciated, one expects to find sanity in the discussion
of this matter of censorship. The only restraint upon a per-
formance at a theatre is exercised by the police authorities,
who may prosecute a manager if it is considered there is
anything in the play that tends to endanger public order or
is inclined to be prejudicial to public morals.
In a little book by E. Kress, entitled "Pour Ouvrir un
Cinema," the legal formalities are explained, and there we
learn that after a very acrimonious debate in the Chamber
of Deputies, between M. Breton and M. G. Berry, it was
decided that the motion picture would not be classed with
theatrical exhibitions, and that their entire regulation came
under the head of the Department of Police. In other
words, instead of the motion picture, as it would have under
the old law, coming under the Department of the Minister
of the Interior, it was regarded as a "spectacle of curiosity,"
and as such simply regulated by the police code under the
arret of Messidor, in the year eight of the Republic and by
the Municipal Law of Paris in the year 1884, Article 97.
A state censorship existed in France up to 1908, but the
only censorship that exists now is that of the police authori-
ties, who may prosecute a manager if they consider that the
photo-play may endanger public order or if prejudicial to
public morals. And, incidentally, I should like to call your
attention to just what is happening, i. e., that as state censor-
ship of the theatre has lessened in popularity in Europe, and
has gradually tended to abolition, the idea seems to have
grown up in America that it is something this free govern-
ment should take up.
28
LAWS OF EUROPE.
On account of the war it has not been easy to collect
facts as to the laws in Europe, but I give herewith a brief
synopsis of the attitude toward censorship of many Euro-
pean countries up to that time. For the major part of the
summary I am indebted to the report of the Joint Com-
mittee of the House of Lords and the House of Commons,
appointed in 1909 to investigate for Parliament the ques-
tion of censorship :
Belgium: There is no state censorship of plays. The
municipal authorities are responsible for the preservation
of order in a theatre, and have the right to prevent a per-
formance of any play which, in their opinion, might be likely
to arouse public feeling.
Denmark: A license from the Ministry of Justice is
required for the giving of theatrical performances. The
license is granted on condition that the plays produced are
first submitted to a censor, appointed by the Minister of
Justice, from whose decision there is an appeal to the Min-
istry. In Copenhagen it is also the censor's duty to super-
vise performances at music halls, etc., and no song or other
kind of entertainment, including cinematograph representa-
tions, may be given unless the censor has approved of it
before productions. In the Provinces the duties of the
censor, with regard to the control of the music halls, etc.,
are discharged by the police.
Holland: The control of theatrical and other perform-
ances is vested in the Burgomaster of every town by Article
188 of the Municipal Law of 1851. His duty is to watch
against anything which is in conflict with public order and
decency.
Italy: The control of theatrical and other public per-
formances is regulated by a Statute passed in the year 1889.
No public performance of any kind may be given unless the
leave of the Public Security Authorities have been obtained.
This department is responsible for the safety, etc., of the
public in all places of entertainment. In addition to this, no
29
opera or stage play of any kind may be produced without
the approval first obtained of the Prefect of the Province
in which it is to be performed. The Prefect may withhold
his consent to any performance upon the grounds of morality
or public order. There is an appeal from his decision to
the Minister of the Interior.
Portugal: The censorship of all public performances
is vested in the Civil Governor who, in the outlying town-
ships of his district, delegates his powers to his subordinates.
In Lisbon the general powers of the Civil Governor are dele-
gated to the Civil Police, to a branch of which body, viz.,
the Administrative Police, belong the censorship of theatri-
cal performances. The head of that body is practically the
censor of stage plays.
Spain: The representatives of theatrical companies
must supply the Civil Governor, or the Mayor, in towns
other than provisional capitols, with two copies of every
dramatic work which is to be preformed for the first time.
Such copies must be signed by the authors or by representa-
tives of the company, and must be in the hands of the au-
thorities on the same day, and at the same hour, on which
the play is to be performed. When, in the opinion of the
authorities, the performance of a dramatic work involves
committing any offense included in the Penal Code, it is at
once denounced to a competent court, to which are sent the
copies of the play which have been deposited with the Civil
Governor. The performance of the play is at once sus-
pended until the decision of the Court of Justice has been
given.
Sweden: There is no longer any State Censorship of
plays, but anyone who wishes to give a dramatic, musical or
other public performance, is obliged to notify the local police
of his intention. No special permission, however, from the
police authorities is usually necessary for giving dramatic
or musical performances.
Saxony: A distinction is made between the Royal
Theatre and the theatres under private control. In the
former a censorship is exercised over stage plays by an
30
official called the Dramaturg; in the latter the control is in
the hands of the police. The police censorship is conferred
upon a high judicial officer, whose duty it is to examine every
new play with regard to its moral, political or religious ten-
dency.
Duchy of Baden: The regulations of theatres and the
control over theatrical and other public performances, ex-
cept in the Grand Ducal Theatre and the National Theatre
at Mannheim, which are controlled by an official censor,
are vested in the police, who have power to suppress any
performance calculated to give offense or produce disorder.
Kingdom of Bavaria: Since February, 1808, an advi-
sory Censorship Council has been established at Munich in
connection with the Directorate of Police. This Council
consists of five members, namely, an author, an artist, a lin-
guist, a schoolmaster and a physician. The Council gives
notice to the police, either verbally or in writing, when it is
in doubt as to the desirability of allowing the production of
any dramatic work. This system is purely local at present.
In Russia there is no censorship from the point of view
of morality. The regulation of the theatre and the cine-
matograph is in most places under the control of what is
known as the Upravlenve po dyelam pechati (Regulator
of Public Printing) and this gentleman is also the regu-
lator of the press, his business being to see that no political
or religious matters are discussed on the stage or shown on
the screen. As Dr. Rosenthal, a Russian authority, recently
remarked: "Russia is not interested in the question of vice;
the people are not yet educated enough to know much about
vice ; when they have achieved a higher state of civilization,
then it will be necessary to regulate their morals."
In Austria, immediately after the reactionary period of
1848, censorship was decreed which permitted the censor to
forbid whatever he disliked, whether it was particular
words, scenes or the whole play. As the result of the prohi-
bition of censors, noteworthy plays, as Max Halbe's Jugend
and Gerhard Hauptmann's Weavers and Ernest von Wil-
31
denbruch's Herlnrich-drama, were prohibited, and a strenu-
ous movement arose in Austria against the censorship, but
made practically little headway.
Interesting, because of the unusual progressive quality
of all the New Zealand legislation, and doubly interesting
because it is the only law that I have been able to obtain
from Australia, is the New Zealand Law, which has per-
haps an additional interest in that we find that it was passed
on the seventh day of August, and that the only other two
laws passed by the General Assembly in New Zealand on
that same day was a law that related to the conduct and the
part being played by New Zealand in the great European
war, and a law for encouraging the fruit growing industry
in New Zealand. The law is interesting in full on account
of the terseness and the clarity of the language. It is en-
titled: "An Act to Provide for the Censoring of Cinemato-
graph Films."
BE IT ENACTED by the General Assembly of New Zealand, in Par-
liament assembled, and by the authority of the same, as follows:
1. This Act may be cited as the Cinematograph-film Censorship Act,
1916.
2. On and after the first day of October, 1916, it shall not be lawful to
exhibit any cinematograph-film unless it has been approved in the manner
hereinafter provided.
3. (1) There shall be appointed from time to time, by the Governor,
such fit persons as the Governor deems necessary as censors of cinemato-
graph-films, who shall hold office during the Governor's pleasure.
(2) The provisions of the Public Service Act, 1912, shall not apply
to persons so appointed.
4. (1) It shall be the duty of every person so appointed to examine every
cinematograph-film submitted to him for approval.
(2) Such approval shall be signified by a certificate in the pre-
scribed form.
(3) Such approval shall not be given in the case of any film which,
in the opinion of the censor, depicts any matter that is against public order
and decency, or the exhibition of which for any other reason is, in the
opinion of the censor, undesirable in the public interest.
(4) Such approval may be given generally, or may be given subject
to a condition that the film shall be exhibited only to a specified class or
classes of persons.
(5) There shall be a right of appeal from every decision of a censor
under this Act to such person or persons, and in such manner and subject
to such conditions, as may be prescribed by regulations under this Act.
5. A film to which any matter has been added after it has been approved
by the censor shall be again submitted for approval, and until it has been
been approved again, shall be deemed not to have been approved.
32
6. There shall be payable for every film submitted for approval under
this Act such fees as are prescribed.
7. (1) Every person who exhibits any film in contravention of this Act
is liable to a fine not exceeding fifty pounds, and the film may be ordered by
the convicting board to be forfeited to the Crown.
(2) Any film so forfeited shall be dealt with in such manner as the
Minister of Internal Affairs directs.
8. The Governor may, from time to time, by order in Council, make
such regulations as he deems necessary to give effect to this Act.
In the latest edition of "Recopil acion de Leyes V sales
de la Republica Argentina I have been unable to find any
general law dealing with the moving picture industry, or
the question of censorship. In the matter of South Ameri-
can Law, the latest reports that we have in this country,
both from Chile and from Venezuela, are from 1914.
Neither the Recopilacion de Leyes y decretos of Venezuela
or Chile, up to 1914, show that there was any legislation put
upon the books.
The Civil Code of Japan (the latest copy of which I
have been able to find in this country is for 1909) makes
naturally no mention of the cinematograph. We know his-
torically, however, that up to the latter half of this century
there was an even deeper prejudice in Japan against the
theatre than there was in England, actors being regarded as
outcasts and theatres as places in which no gentleman should
be seen, and only as places that were fit for the lower classes.
No Samurai ever entered the theatre up to the latter half of
the last century, and the broadening theatre movement did
not receive official sanction until 1879, when President
Grant, on his visit to Japan, visited one of the leading
theatres of Tokio. Naturally we can understand that there
would be little desire to censor theatres when the upper
class did not even go near them.
When we come to the laws of this country, it is inter-
esting to note that only eight of the States have placed on
the statute books a law that would in any way permit the
film to be censored. In the State of Pennsylvania a Board
of Censors has been appointed, the Board consisting of three
residents and citizens of Pennsylvania, two males and one
female, well qualified in education and experience to act
33
as censors under this Act. One male member of the Board
shall be Chairman, the female member shall be Vice-chair-
man, and one member (male) shall be secretary. They
shall be appointed by the Governor for terms of three years.
Those first appointed under this Act shall be appointed for
three years, two years and one year, respectively, their
respective tertns to be designated by the Governor.
Section 6, of the Pennsylvania Act, declares that "The
Board shall examine or supervise the examination of all
films, reels or views to be exhibited or used in Pennsylvania,
and shall disapprove such as are sacriligious, obscene, in-
decent or immoral, and such as tend, in the judgment of the
Board, to debase or corrupt morals. This section shall not
apply to announcement or advertising slides."
In Kansas, Laws of 1913, Chapter 294, Page 504, the
law states that "It shall be unlawful for any person, firm or
corporation to exhibit or use any moving picture film, or
reel, unless the said film, or reel, shall have been examined
and approved."
It also states, Section 2, that it shall be his duty "to
examine all moving picture films, or reels, intended for
exhibition in this State, and approve such as he shall find
to be moral and instructive, and to withhold approval from
such films, or reels, as tend to debase or corrupt morals."
This statute was passed upon by the United States Supreme
Court and declared to be constitutional.*
In Ohio it is declared to be the duty of the Board of
Censors "to examine and censor all motion picture films to
be publicly exhibited in the State of Ohio * * *. Only such
films as are, in the judgment and discretion of the Board of
Censors, a certificate showing approval or rejection of such
film shall be issued to the party submitting it. When a
film is passed and approved by the Board of Censors, such
film shall be given an approval number, which shall be
shown on the certificate issued by the said Board of Censors
to be the party submitting the film." This statute has also
*See Mutual Film Corporation v. Kansas, 236 U. S., 248.
34
been before the United States Supreme Court for construc-
tion on a claim of violation of constitutional rights, but the
statute was held to be constitutional.*
In the other States in which there are laws, such as
Michigan, Florida, Louisiana, Alabama, Massachusetts,
Maine and Connecticut, the law pertains only to the sanitary
and fire regulations, and looks to no more than the building
operations so as to insure the safety of the patrons. In
Louisiana, however, in 1914, a law was passed which per-
mitted "any city, town or village, from and after the pro-
mulgation of this Act, through its proper legislative branch
* * * * to adopt any ordinance or law for the regula-
tion, by censorship, of moving picture theatres and shows,
nickelodians, theatoriums, penny, five and ten cent arcades,
and all places of amusement showing, operating or display-
ing motion pictures for which an admission is charged or
has been made."
I made reference to two opinions in the United States
Supreme Court holding that censorship laws in Kansas and
Ohio were declared to be constitutional. I do not wish,
however, to be understood as admitting the soundness of
these decisions. On the contrary, I claim and shall present-
ly attempt to demonstrate that they are clearly wrong in
principle.
There has been introduced in Congress a bill by Mr.
Hughesf, creating a Federal Board of Censors of motion
pictures, the basis of which is the regulation of commodities
passing through interstate channels. One of the provisions
of the bill is that the censors are empowered to reject, among
other things, photo-plays which have a tendency to incite
crime.
Of course this provision is absolutely unnecessary. It is
fully covered by both Federal and State statutes. Assuming
that the picture shown is one that would incite to murder,
the people who are responsible would, under both State and
*See Mutual Film Corporation v. Ohio Industrial Commission, 236 U. S., 230.
t House of Representatives Bill 456, December 6, 1915, referred to the Committee
on Education.
35
Federal legislation, be guilty of homicide. If guilty, would
you first punish them under the Federal statute by a year's
imprisonment provided for in the Censorship Act and then
execute them under the State statute for murder ? Or would
you first execute them for the murder, under the State stat-
ute, and then punish them by imprisonment under the Fed-
eral statute ?
Continuing this situation, let us imagine that the State
authorities first intervene, and after a conviction execute the
individual, or individuals, for homicide. An interesting
contest would arise as to whether the body should be turned
over to the family for interment, or whether it should be
surrendered to the Federal authorities for prosecution under
the censorship statute, and for imprisonment if the corpse
be found guilty.
Let us analyze for a moment what the legal effect of
censorship on photo-plays would be. The proprietor of a
newspaper in the United States, in the interest of public
welfare, desires to print a cartoon of a man or group of
public characters. This he may do freely, subjecting him-
self only to penal or civil laws of the community in which
the publication is made. Under a system of censorship,
assuming that the same proprietor of the newspaper is also
the owner of a film producing company, or the proprietor of
a motion picture theatre, if he desires to throw upon the
screen exactly the same cartoon as appeared in his news-
paper, he must first obtain the permission of the censor to
do so.
So, too, a man or a person interested in promulgating a
theory, or engaged in a propaganda that requires local ad-
vertising, may do so freely upon the mere payment of the
newspaper charges. Desiring to advertise the same matter
upon the screen, he must first obtain the permission of the
censor to do so; and non constat, it may follow that although
the newspaper published the printed matter, without offense
against the crminal laws, or even against the civil laws of the
community, the censor prohibits and inhibits the same mat-
ter from being advertised upon the screen.
36
I might dilate further on the subject, but I think I have
done so sufficiently to establish the fact that when the last
word is heard, it will be that it is unconstitutional to restrict
or deprive an individual of the right of free expression.
To prevent free expression of thought, whether in the
press or on the screen, would be to create a situation similar
to the one which made the American Colonists rebel and led
Thomas Jefferson to say: "I would rather live in a country
where there are newspapers and no government than live in
a country where there is government and no newspapers."
I now come to the consideration of the decision of the
United States Supreme Court, reviewing the constitution-
ality of the statutes of Ohio and Kansas. I have said that
I disagree with those decisions on principle, and I assert that
censorship of motion pictures is absolutely and unqualifiedly
in defiance of the spirit, and subversive of the letter of the
constitution.
For aside from the question as to whether censorship is
violative of the Fourteenth Amendment, it is not constitu-
tional because there is no express provision for it in the Con-
stitution, unless it be found in the Commerce Clause.
It is interesting, if not refreshing, to observe that the
ground upon which censorship of motion pictures is urged
is, that under the Commerce Clause of the Federal Consti-
tution, power is found to regulate the shipment, sale and
use of motion pictures traveling in interstate commerce.
Because of this constitutional provision, it is assumed that the
censorship may be exercised. This, to my mind, is straining
the constitutional provision beyond all limits.
It is conceded that a censorship of the press is violative
of the spirit and the letter of the Constitution. It follows
that if there is an analogy between the screen and the press,
as I have indicated earlier in this lecture, despite the declara-
tion of the United States Supreme Court to the contrary,
that censorship of matter, projected or portrayed upon the
screen is likewise unconstitutional.
If power is to be found under the Constitution to censor
motion pictures because the reels are sent in the channels of
37
interstate commerce, traveling from State to State, the news-
papers of to-day are likewise sent through the mail from
State to State, (both by mail and the express), so that if the
Commerce Clause permits the censorship of films, because
the reels are sent by mail or express through the States, such
continuous acts would, upon the same principle, permit the
establishment of a censorship over newspapers transmitted
in interstate commerce.
It is very well to say that Congress has passed laws
which have been declared constitutional, regulating the sale
and use of food, drugs, liquors and other commodities which
travel in interstate commerce, but Congress there was deal-
ing with an article, the use or abuse of which was inherently
dangerous to the life, health and well being of the com-
munity.
The motion picture reel as such, however, contains no
such inherent danger. The excuse offered, (and I use the
term "excuse" advisedly) is that the effect of the portrayal
of a scene upon a screen may have an effect upon the mind of
the spectator. But here again, if this be the effect, then the
State statute, or State regulations, will condemn the quality
of the picture and the offender would be subjected to prose-
cution under the criminal law.
The situation is not so apparent with food, drugs and
liquors passing in interstate commerce, because all the States
have not established pure health and pure food laws. In
addition, the use of food, drugs and drink affects the physical
well being of the citizen of the State and of the Nation as
such. If the far-fetched argument may be used, that the
physical well being of the man who is subject to call to the
duty of his country, to the colors and the flag, is the ground
for the legislation, it can be answered that it is not essential
for a man to be high-minded morally to be a good soldier,
whereas it is quite essential that he shall be physically sound
for military service.
38
CENSORSHIP IN HISTORY.
The very form of government under which we live, that
is, a democracy of a kind that has never existed anywhere
else in the world, because all ancient democracies (Greek,
Roman and those of the Middle Ages, etc.) were
democratic only to a limited number of people. The very
democracy under which we live, as I have said, grew out of
the question of censorship.
During the administration of John Adams, it will be
recalled that in a moment of political madness there were
passed two laws, known as the Alien and Sedition Laws.
The Sedition Law gave the President the power to sum-
marily punish anyone who criticised the Government in
print, and to regulate the press in so far as criticism of the
Government, or any member of the administration, was
concerned.
Despite the fact that back of this measure, when it was
passed, was John Adams and the brains of the Federalist
Party; despite the fact that at the time the Government was
new and young, and the press was supposed to be particu-
larly licentious and extreme, so widespread was the indig-
nation that Adams was defeated for the Presidency in 1800.
The Federalist Party practically passed out of existence;
Thomas Jefferson became President of the United States,
and the Jeffersonian Democratic Party, pledged to an un-
censored press, came into control almost unanimously.
That was the only time in the history of these United
States that there was ever a serious attempt to harness or
censor the press, and the response of the American people
was such, and so emphatic, that no one has ever again
thought of making a similar attempt to violate either the
letter or the spirit of the first amendment to the Constitu-
tion, which declared that "Congress shall make no law re-
specting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech or of
the press."
In this connection I might make reference to the fact
that in our own State our Legislature last year passed a law
39
creating a Board of Censors of motion pictures, which was
vetoed by the Governor; not on the ground that it was viola-
tive of the Federal or State Constitution, but because Fed-
eral censorship was "coming anyway" and State censorship
was therefore unnecessary. And this despite the fact that
in our State Constitution there will be found a provision, in
Section 3, which is almost similar in language to that of the
Federal Constitution, the provision of the State Constitution
being as follows :
"Section 3. Every citizen may freely speak, write and publish his sen-
timents on all subjects, being responsible for the abuse of that right, and no
law shall be passed to restrain or abridge the liberty of speech or of the
press."
Now, of course, when the State Constitution speaks of
giving the man the inalienable right to make and publish
his sentiments on all subjects, it was never intended that if
a new invention was placed upon the market for publication
that it will be constitutional to prevent him from using it
merely because it was new. The deaf mute, of course, can-
not "speak freely," but if he is educated and is physically
able he may of course "write," but the State Constitution
also gives him the right to publish his sentiments on all
subjects.
How can it be said that it will be constitutional to pre-
vent him from publishing on the screen, whether he be a
mute or a speaking man, that which he desires to advertise
or portray or give expression to? When, mark you, our
State Constitution says that "no law shall be passed to re-
strain or abridge the liberty of speech or of the press."
It is evident, of course, that the framers of the Consti-
tution never intended that a man who could not speak freely
should be deprived of a means of expression, mechanically,
if you will, for that would be treating him differently from
the man more favored, who is in possession of all his physi-
cal powers.
One of the most vicious features of censorship is that it
vests a discretion in the censor which, like discretionary
powers vested in public officers, is subject to the capricious
and whimsical actions of the officials. Let me call your at-
40
tention to the fact that if the producer or the management,
in exhibiting a photo-play, violated a penal statute and was
brought to court, the defendant when arraigned in court,
would be entitled to all the benefits and safeguards in the
proceedings provided for in a criminal proceeding; first, the
presumption of innocence ; second, that the defendant must be
proved guilty beyond a reasonable doubt; third, the consti-
tutional right of a jury trial except in cases of a mis-
demeanor.
These essentials are, of course, not applicable upon a
review of a case by a censor, and thus there is substituted,
in place of well grounded principles of law, the taste and
judgment of the censor. To illustrate the point further:
Assuming that we had Federal censorship in this country,
in addition to the censorship which obtains in the States
under their statute laws, a condition of this kind would be
conceivable. The censor of the State of Pennsylvania
passes a picture as being fit for exhibition in his State. The
moment that film is put in transit for the State of Ohio, and
put on exhibition within a mile or two of the State line, the
Federal censor steps in and declares that, in his opinion, the
film is not a proper one to be shown.
This statement emphasizes the point that I desire to
make, that the moment the Federal or State authorities un-
dertake to determine in advance that the photo-play cannot
be shown, instead of allowing it to be shown at the risk of a
prosecution for violating the penal law, what really occurs
is that individual taste and judgment on the part of the
various censors in the various States, and of the Federal
censor, is submitted in place of principles of law, which have
stood as bulwarks through centuries.
I have called attention to the presumption of innocence ;
of the necessity for proof beyond a reasonable doubt and
the right to a jury trial.
See how completely the scene shifts where censorship
obtains. In the first instance the producer after being al-
lowed to show the film is brought to trial; he may stand
mute with the burden on the prosecution, and if a prima facie
41
case is made out, all the defendant need do is to create a
reasonable doubt as to his guilt. However, when the censor
attacks him, he is not only prevented from showing the film,
but when he comes to court he must assume the burden, after
having spent perhaps several hundred, or thousands, or as
much as a million dollars, (as some of the recent produc-
tions have cost) of establishing that he has a good and
proper film.
Even this is not sufficient, because, even though he may
establish this he must go a step further. He must assume
the burden of satisfying the court that the censor has acted
arbitrarily, whimsically or capriciously; all of the presump-
tions, however, being in favor of the censor having per-
formed his public duty honestly, faithfully and efficiently.
And the defendant meets with this almost unsurmountable
obstacle, that the court will unfavorably hold, as is demon-
strated by actual cases in the books, that the court will not
substitute its discretion for that of an officer, permitted
under the law, to exercise his discretion. The court may
very properly turn to counsel and say that whatever the
opinion of the court may be upon the subject it cannot, in
the absence of fraud or oppression, assume to exercise the
duties of the official censor, for he is presumed to be an ex-
pert upon the subject, whereas the judge is not.
INDIRECT CENSORSHIP.
(I) In our own City of New York, as perhaps in other
cities in our country and various places throughout the
world, there has grown up an indirect censorship. The
licensing board of theatres have either arbitrarily or under
the guise of law, assumed the right to supervise the quality
and substance of a picture that is to be shown. Thus, Mr.
George H. Bell, License Commissioner of the City of New
York, although under the statute having no power to censor
photo-plays any more than he has the right to censor dra-
matic performances by living actors, compels the producers
of photo-plays to submit to him, in advance of the exhibition
42
thereof, (although he claims it is pure "suggestion,") for
his decision as to what shall or what shall not be eliminated
from the photo-play as shown him.
Of course he has a method of enforcing his "suggestion"
by cancelling the license of the theatre at which a photo-
play is shown which he has not endorsed. For example,
within the last two years a photo-play was shown at one of
the largest and best known theatres in the city, dealing with
a story of war conditions abroad. The License Commis-
sioner, to whom the picture was shown in advance, refused
to approve it, claiming that it violated the President's proc-
lamation of neutrality; and this without any suggestion on
the part of the Federal authorities. Accordingly, when the
picture was shown at the theatre, it was claimed that the
License Commissioner had threatened to revoke the license
of the theatre unless the photo-play was immediately with-
drawn.
Whereupon the producer of the photo-play sought re-
lief in the Supreme Court of our city, and in an ably writ-
ten opinion by Mr. Justice Whittaker,* he enjoined the
License Commissioner from interfering with the photo-play,
holding that it was not within his power to exercise this in-
direct form of censorship. Despite that decision, however,
the practice of this indirect censorship still continues.
(II) There is another form of indirect censorship which
is voluntarily submitted to. There is a board, known as
"The National Board of Review," (formerly known as
National Board of Censorship) composed of educators,
public spirited citizens, clergymen, publicists, etc. This body
receives from the manufacturer, in advance of the exhibi-
tion, the photo-play, and while having no power by law to
censor the picture, directs and suggests eliminations, or in
some cases refuses to pass a picture. Frequently you have
seen upon the screen the designation "Passed by the Na-
tional Board of Review," or previously, National Board of
Censorship. It is to this situation that that designation has
reference.
See Life Photo Company v. Bell, 90 Misc., 469.
43
There can be no ground for Federal Censorship under
the police power of the Federal Government, for it is ex-
tremely doubtful if the Federal Government, as such, has
police power. The attempt to evade clear provisions of the
statutes and constitutions of the States, up to this time, has
been jealously guarded, and whenever the question has been
presented as to the exercise of police power in the Federal
Government, it has been stoutly resisted by the State govern-
ments.
TARIFF ACT CENSORSHIP PROVISION.
A reference to censorship is also found in the Tariff
Act. In the Act of October 3, 1913, Compiled Statutes,
1913, Section 5291, Being Chapter 1638, Statutes 114, it
is thus provided in Subsection 380, of Section 1, of the said
Tariff Act of 1913, reference to which will be found in
Webber v. Fried, (355 Fed. Rep., 355, at page 356), that
a duty is imposed on photographic film positives imported
for use in connection with moving pictures, or the exhibition
thereof, with the provision that films so imported may be
subjected to such censorship as the Secretary of the Treas-
ury may impose, but up to this time, as was the situation
when the Webber case was presented in the Federal Court,
the power given to the Secretary of the Treasury has not
been exercised by him, and so far as research has developed,
there are no censorship regulations by the Secretary of the
Treasury. This, of course, would have reference only to
the importation of films, which may or may not be covered
by the constitutional provisions.
SUNDAY LEGISLATION AND DECISIONS.
A statement as to the law in this State, regarding the
operation of a motion picture on Sunday, is not easy.
When the motion picture theatres first appeared in this
State, in 1907 and 1908, there was considerable agitation
against these places being operated on Sunday. The dra-
matic theatres were operated under what is called "A The-
atrical License," issued by the Police Commissioner, where-
44
as the motion picture theatres were operated under what is
known as "A Common Show License," issued through the
Mayor's office.
The State statute prohibited the giving of Sunday per-
formances in theatres, of the kind defined in the statute.
Of course when this law was passed, motion pictures were
unknown, so that obviously this class of theatres could not
come within the statute nor the charter provision which fol-
lowed the statute.*
The only other section of the Penal Law which might
be applicable is that pertaining to public sports and public
exhibitions on Sunday, f
There is nothing in the Constitution of the State which
prohibits the transaction of business on Sunday. It is our
Penal Law which recognizes Sunday as a religious and a
rest day, and this is covered by Section 2,140 of the Penal
Law, formerly Section 259 of the Penal Code, which reads
as follows :
"The first day of the week being, by general consent, set apart for rest
and religious uses, the law prohibits the doing on that day of certain acts
hereinafter specifically mentioned, which are serious interruptions of the
repose and religious liberty of the community."
Then comes the sections declaring that Sabbath breaking
is a violation of the prohibition, the punishment for Sab-
bath breaking, and finally, a definition of the prohibited acts
on the Sabbath.
Therefore, it is to be observed, that only those things
are prohibited which are specifically legislated against.
Having in mind the fact that when this section of the
Penal Law was passed, motion pictures were unknown, the
general language employed was not intended to cover this
class of entertainment, so the attempt has at times been
made to establish whether or not so much of the language
as was employed, was sufficiently specific to include the
motion picture theatre.
The attempt to close the motion picture theatres on Sun-
*See Section 2,152 of the Penal Law, formerly Section 277 of the Penal Code; see
also Section 67 of the Greater New York Charter, as amended by the Ordinance of
the Board of Aldermen, passed in 1908.
tSection 2,145 of the Penal Law, formerly Section 265 of the Penal Code.
45
day, resulted in the decision of the People v. Hemleb, in
the Second Department of the Appellate Division,* in which
Mr. Justice Gaynor, writing for the court, Judges Jenks
and Woodward concurring, and Judges Hooker and Rich
dissenting, held that the giving of a motion picture show
was not legislated against under the statute and was there-
fore not illegal.
This was substantially the view of Justice Greenbaum,
in Eden Musee Company v. Bingham, 58 Misc., 644, and
Mr. Justice Davis, in the Supreme Court, First Depart-
ment, in habeas corpus proceedings, but our Appellate Di-
vision in the First Department, in the cases of the Eden
Musee Company v. Bingham, (125 App. Div., 780), Sus-
keind v. Bingham (125 App. Div., 787), and Keith v.
Bingham (125 App. Div., 791), refused to pass directly
upon the question when the matter was there presented.
Judge Pound, at Buffalo, held that it was illegal.f
Judge Foote, in the Supreme Court at Rochester held that
the giving of a motion picture show on Sunday was illegal.
Judge Carr, at Brooklyn, held that it was legal.!
Recently the Appellate Division of the Third Depart-
ment, through four of the judges, the fifth judge dissenting,
held that despite previous decisions, the giving of a motion
picture show on Sunday was illegal.
In Hamlin, as Commissioner, versus Bender, decided by
the Appellate Division, in the Fourth Department, May 24,
1916, there is a per curiam opinion, likewise holding it
illegal, the Court said: "We think no useful purpose will
be served by a further discussion here of the questions so
fully considered in the opinion below (92 Misc., 16). The
authorities are in conflict, and the questions can only be
settled by the court of last resort. We agree with the con-
*See People v. Hemleb, 137 App. Div 356.
t See United Vaudeville Company v. Zella, 58 Misc., 16.
jSee People, etc., v. Finn, 57 Misc., page 659.
See People of the State of New York ex rel. Leroy H. Bender, relator-
respondent v. Joseph Joyce and Tames Keith, Chief of Police; opinion by Mr. Justice
Lyon, concurred in by Judges Kellogg, Howard and Cochrane, Judge Woodward dis-
senting.
46
elusions reached by the Trial Court, and do not concur in
the views which prevail in People vs. Hemleb, 127 A. D.,
356"
Therefore, while I am not prepared to say just what the
law in our State is upon the subject, because of conflicting
opinions, nevertheless it would appear that within the terri-
torial limits of the Greater City of New York it is perfectly
legal to give a motion picture show on Sunday; but when
you travel forty or fifty miles north of the city line, under
the recent decision of the Appellate Division of the Third
Department, it is illegal. Traveling forty or fifty miles
north from Albany, it is legal, but traveling the same dis-
tance northwesterly it would be illegal.
Of course our Court of Appeals has not yet given ex-
pression of its views upon the subject, but I believe that
when the decision is given, it will be held that it is not illegal
to give a motion picture show on Sunday.
Before the pronouncement of the Appellate Division of
the Third Department, an atmosphere had been created
favorable to the exhibition of motion pictures throughout
the country, for the effect of the earlier decisions in this
State, in 1908 and 1909, declaring the Sunday exhibitions
of motion pictures to be legal, was felt throughout the entire
country. Even where there had been previous ordinances,
laws and decisions, declaring Sunday exhibitions illegal,
these either became dead letters or were rescinded, so
that it might be said that public exhibitions on Sunday are
recognized as legal as a result of these earlier decisions, and
this as a result of what Judge Gaynor said was the highest
kind of law public opinion.
I had prided myself on the fact that in this State I was
able to have an humble part in shaping the law so that, ex-
cept in a few of the rural communities, it was established
that giving a motion picture show on Sunday was legal.
The recent decision referred to disturbs that situation and
a new argument becomes necessary. I have already referred
to the fact that before the advent of motion picture
theatres, and exhibitions of photo-plays therein, theatres in
47
this State were licensed under the "Theatrical Law" and
were amenable to the then provisions of the Penal Code,
Section 277, now Section 2,152. For those who are inter-
ested in the language of that statute (relating to prohibition
against Sunday performances), it reads in part as follows:
"The performance of any tragedy, comedy, opera, ballet, farce, negro
minstrelsy, negro or other dancing, wrestling, boxing * * * * sparring con-
test, trial of strength, or any part or parts therein, or any circus, equestrian,
or dramatic performance or exercise, or any performance or exercise of
juggling, acrobats, club performers or rope dancers, on the first day of the
week is prohibited."
The Section has specific reference to a performance by
living persons, or in other words, a performance of the
written drama; or a performance of the stage.
The only other Section applicable therefore, if any, is
that which is now known as 2145 of the Penal Law, former-
ly 265 of the Penal Code. That Section reads as follows:
"All shooting, hunting, fishing, playing, horse-racing, gaming, or other
public sports, exercises or shows, upon the first day of the week, and all
noise disturbing the peace of the day are prohibited."
This statute is derived from one of the earliest laws in
the history of the State. The first enactment was on Febru-
ary 23, 1788, Chapter 42 of the Laws of that year, under
a statute entitled "An Act for Suppressing Immorality,"
and it prohibited traveling, servile laboring, or working,
shooting, fishing, playing, hunting or frequenting tippling
houses, or any unlawful past-times by any person of the
State, on the first day of the week, called Sunday. It is in-
teresting to note that persons under the age of fourteen
years were exempted from the provision of this statute, from
which it might be inferred that it was perhaps legal for a
youngster under fourteen to frequent a tippling house or en-
gage in unlawful exercises or pastimes.
The penalty for violation of the statute was that the of-
fender forfeit and pay to the use of the city, or town, the
sum of six shillings. If he showed, cried, or exposed goods
for sale, except small meat, milk and fish before nine o'clock
in the morning, he would forfeit the goods so shown, cried
or exposed, for the use of the poor of the city, or town,
where the offense was committed.
48
It was further provided that if any person should be
found shooting, fishing, playing, hunting or going to or
coming from any market, or landing with cart, wagon or
sled on Sunday, it should be lawful for the constable, or
other citizen, to stop that person and hold him until the
next day and then take him to a Justice of the Peace, to be
dealt with according to the law; but there was a proviso
that any person going to or returning from church, or place
of worship, within the distance of twenty miles, or going to
call a physician, surgeon or midwife, or carrying mail to or
from a post-office or going express, by order of a public
officer, should not be considered as traveling within the
meaning of the Act. From which it may be inferred that a
person living more than twenty miles from a church was
prevented from going to church on a Sunday. If he re-
quired the services of a physician, surgeon or midwife, he
could not go after one if his habitation was more than
twenty miles from where a physician, surgeon or midwife
resided.
This idea was probably borrowed from the old Rab-
binical law, which forbids a devout Jew from traveling
more than a certain distance on Sabbath, which is consider-
ably lessened from the distance which he may travel on the
Day of Atonement. So, after all, the straphanger in the
subway should be happy that he did not live in 1788, amen-
able to the Sunday laws.
This remained the law of our State until 1813, without
change and it was then adopted and went into the Revised
Statutes of 1813, with the addition of the word "gaming."
When the Penal Code was adopted in 1881, there was sub-
stituted for the words "or any unlawful exercises or past-
times," the phrase "or other public sports, exercises or
shows." In 1883, by Chapter 358 of the Laws of that
^year, the word "pastimes" was omitted, so the doing of
"pastimes" is not now prohibited on Sunday.
And this remained the law until the Penal Law was
adopted as part of the Consolidated Laws of this State,
which became a law March 12, 1909, when the exact phrase-
49
ology was incorporated. The language of the statute is
important, particularly in view of the well-reasoned opinion
of the Appellate Division of the Second Department. It
established that the law, as drafted under a familiar rule of
interpretation, ejusdem generis, that the Legislature could
not have contemplated or had in mind motion picture shows,
because it.was not of the general character of the prohibited
shows or public sports provided for in the statute.
The Appellate Division of the Third Department, how-
ever, thus disposes of the question. Says the Court:
"There is but a single question to be decided on this ap-
peal, and that is, what did the Legislature mean when it
wrote in the statute, following the prohibition against shoot-
ing, hunting, fishing, playing, horse-racing, gaming, the
words 'other public sports, exercises or shows' ? Did it in-
tend to prohibit exhibitions in the nature of the ordinary
motion picture show? It would seem clear that the answer
to that question must be in the affirmative."
This is logic that I am unable to follow. The Court
declares the intentions of the Legislature to be clear, al-
though a number of judges in this State, of practically equal
and co-ordinate jurisdiction, exceeding greatly by number
the four judges who concurred in the opinion that it was
"clear," take an entirely different view.
Let us for a moment, therefore, analyze the situation.
Now, of course, under the rule of ejusdem generis, it has
almost invariably been held that in construing the scope of
such general words as "other public sports, exercises or
shows," it is necessary to consider the specific prohibitions
that precede the above quoted words of general description;
and where words of specific prohibition are followed by
language of general description, the latter is to be consid-
ered as being co-ordinate with the particular or specific pro-
hibition. So that, under this rule, the words "or other pub-
lic sports" must be read in conjunction with the specific acts
prohibited, viz. : shooting, hunting, fishing, playing, horse-
racing, gaming, which, by the language of the statute, were
prohibited only in public. Thus it has been logically argued
50
by Mr. Justice Greenbaum, in the Eden Musee case, that the
intention of the Legislature was to prohibit outdoor exhi-
bitions and performances which were attendant with noise
and offense to the community, and therefore within the inhi-
bition of being serious interruptions of the repose of the day,
because openly and publicly conducted outdoors.
There can be no indication that the Legislature legis-
lated against motion picture shows, for I have already
shown that the language of the statute has been almost simi-
lar as far back as 1788. Coming down to more recent times,
when the Code was adopted in 1881 by the Legislature, it
cannot be fairly asserted that the Legislature intended in
that year to prohibit the kind of performance which would
first become known commercially twenty-six years in the
future (1907). The Legislature could not have intended,
in the language implied, that motion picture shows were to
be prohibited, for however astute the legislator who drew
the Act, or those voting in favor of it, their imagination,
powerful as it might have been, never dreamed of motion
pictures. To emphasize the point, let us recall the well-
known rule : that you may not read into a penal statute by
implication that which the penal statute does not in express
terms prohibit. Otherwise a man would be subjecting him-
self to a violation of the criminal law without knowing that
he was violating the law from a reading of the statute. It
is for this reason that even where statutes are under review
by the Court, affecting civil rights, that the Courts may
look to the debates of the legislatures, or in the Congress,
for the purpose of determining what the legislature intended
to legislate about or against.
It is safe to assume that if there had been any debate
on the adoption of the language implied in the statute, no-
where would there be found reference to the possibility of
a moving picture exhibition on Sunday. You could not say
that the legislation prohibiting a balloon ascension on Sun-
day, before the advent of aeroplanes, contemplated an in-
hibition of a commercial trip of an aeroplane on Sunday,
many years after the enactment of the statute.
si
Again: When our Penal Law was made part of the
Consolidated Laws of our State, in 1909, the Legislature,
with full knowledge at the time that motion picture exhi-
bitions were then openly and publicly given on Sunday, with
knowledge presumed in the Legislature of the decisions of
the Courts at that time, accepted the statute as it thereto-
fore existed under the Penal Code. The Legislature was
aware that the provisions of this statute were held by the
highest court to be non-violative of the Sabbath Law, and
it is presumed, intended to leave the law as it had been ad-
judicated by the court.
And this is what Judge Pound, now of our Court of
Appeals, twice said in two cases before him at Special Term :
"It now seems to be established that the Penal Law of the State of New
York does not prohibit the exhibition of moving pictures on Sunday ; and
that the municipality cannot, independent of express legislative authority, by
ordinance compel and enforce Sunday closing of moving picture shows * * *;
the Legislature alone may command how Sunday may be kept."*
"Seven years of inaction by the Legislature since this decisionf was
rendered, suggests an acceptance of the ruling by a majority of the people,
or of their representatives. Among earthly powers, the Legislature alone
may command how Sunday may be kept. It is the sole judge of acts to be
prohibited."
It is very well for those who seek to hold that the statute
is broad enough to prohibit motion picture shows on Sun-
day to say that if the law, as found, is wrong, relief should
be had with the Legislature rather than the courts, but this
is only begging the question. Since we are dealing with the
Penal Law, it would be fairer if those who want Sunday
opening prohibited would petition the Legislature to amend
the law so that there would be an express clause, making
moving pictures on Sunday illegal.
In nearly every state of the Union, where the question
came before the court on the right to operate a motion pic-
ture show on Sunday, it has been held that it was not a vio-
lation of a statute similar to the one we have in our State.
Thus, in the State of Texas, ex parte Lingsenfelter, 33
Amer. and Eng. Ann. Cases, 763, for having conducted a
motion picture theatre in April, 1911, to which admission
*Klinger v. Ryan, 153 Supp., 937.
tPeople v. Rand, 154 Supp., 293.
52
was charged, the defendant was convicted in the lower
court, but on appeal the conviction was reversed, the court
saying, construing the term Penal Code, as follows :
"The exhibition of moving pictures on Sunday, and the charge of admis-
sion fee therefor, not being prohibited by Article 199 of the Penal Code, or
any other Article of the Penal Code of the State of Texas, the conviction of
the applicant in the Corporation Court is without authority and unlawful."
Article 199 of the Penal Code of Texas, referred to in
the opinion, reads as follows :
"Article 199. Any proprietor of any place of public amusement, or the
agent or employe of any such person, who shall permit his place of public
amusement to be open for the purpose of public amusement on Sunday, shall
be fined not less than $20, nor more than $50. The term "place of amuse-
ment" shall be construed to mean circuses, theatres, variety theatres and such
other amusements as are exhibited and for which an admission fee is
charged."
This statute is even broader than our own, but the Court,
in applying the rule of ejusdem generis, said :
"What are we to understand by the general term 'and such other amuse-
ments as are exhibited ****'? Clearly, we think, amusements of a like
or similar character. This seems to have been the construction given to sim-
ilar statutes by many courts."
In the State of Idaho, under a statute almost identical
with ours, it was held not to be a violation of the law to
have a motion picture exhibition on Sunday.* The statute
of that State reads as follows:
"It shall be unlawful for any person, or persons, to keep open on Sun-
day, any theatre, playhouse, dance-house, race-track, merry-go-round, circus,
or show, concert, saloon, billiard or pool-room, bowling alley, variety hall or
any such place of public amusement."
In the State of Montana, under a similar statute to ours,,
in Section 8,369 of the Revised Codes, it was held that a
moving picture exhibition on Sunday was not illegal.f The
defendant was convicted in a court for violation of the
statute, in that he exhibited motion pictures accompanied
by piano selections and vocal music. On appeal the Court
said:
"The operation of a motion picture show on Sunday, in which the picture
shows were of clean and moral character, were approved by a general board
of censors located in another State, and were accompanied by piano selec-
tions and vocal music, is not violative of the Revised Code, Section 8,369,.
See in re Hull, 18 Idaho, 475.
tSee State v. Penny, 42 Montana, 118.
S3
making every person who on Sunday, the first day of the week, keeps open
or maintains or aids in opening or maintaining any theatre, playhouse, dance-
house, race-track, gambling-house, concert saloon, or variety hall, guilty of a
misdemeanor."
That statute reads as follows :
"Every person who, on Sunday, the first day of the week, keeps open or
maintains or aids in opening or maintaining any theatre, playhouse, dance-
house, race-track, gambling-house, concert saloon or variety hall, is guilty
of a misdemeanor."
It was similarly held, under the statute of the State of
Mississippi, which reads as follows :
"Section 1,368. If any person shall engage in, show forth, exhibit, act,
represent, perform, or cause to be shown forth, acted, represented, or per-
formed, any interludes, farces, or plays of any kind, or any games, tricks,
ball-playing of any kind, juggling, sleight of hand, or feats of dexterity,
agility of body, or any bear baiting or any bull fighting, horse racing or cock
fighting, or any such like show, or exhibit whatsoever on Sunday, every
person so offending shall be fined not more than $50."
Adjudicated cases in Kansas and Missouri, under simi-
lar statutes, declared it not a violation of the law to give a
motion picture show on Sunday. In Kansas, construing
their statute, the court held in State v. Prather, 79 Kansas,
513, that playing baseball on Sunday would not violate the
law. The statute in that State reads as follows :
"Every person who shall be convicted of horse-racing, cock-fighting, or
playing at cards, or games of any kind, on the first day of the week, com-
monly called Sunday, shall be deemed guilty of a misdemeanor and fined
not exceeding fifty dollars."
In Misosuri it was similarly held, regarding a game of
baseball, that it was not a violation of their statute (ex parte
Joseph Neet, 157 Missouri, 527). There the Court said,
construing Section 2,242 of the Revised Statutes of Mis-
souri :
"That there was no law of the State which prevents the playing of
baseball on Sunday."
The Missouri statute reads as follows:
"Every person who shall be convicted of horse-racing, cock-fighting, or
playing cards or games of any kind, on the first day of the week, commonly
called Sunday, shall be deemed guilty of a misdemeanor and fined not ex-
ceeding $50."
In fact, in a number of the western and southern States,
there is no statutory inhibition against Sunday theatricals
or Sunday moving picture exhibitions. Thus, in Arizona,
the acts forbidden on Sunday do not include theatrical
amusements, sports or exhibitions of any kind. All that is
54
prohibited on Sunday is the opening of public offices and
the exercise of judicial function, and their act becomes ef-
fective as late as September, 1901.
Under the statutes of Arkansas, there is likewise no
prohibition. What is there forbidden is horse-racing, cock-
fighting and gambling.
In Alabama all that is forbidden on Sunday is the play-
ing of base-ball. There seems to be no prohibition against
any other form of amusement.
In Florida amusement shows, or exhibitions, are not
specifically prohibited by the statute.
In the neighboring State of Connecticut, their statute
legislates against concerts of music, dancing, or other public
diversions on Sunday, but makes no specific reference to
theatres, theatrical exhibitions or moving picture shows.
These references to the state statutes and decisions may
be multiplied, but enough has been given to indicate the
general tendency.
INJUNCTIONS DETERMINED THE LAW.
It is interesting to note that most of the litigation affect-
ing this industry was determined by injunction proceedings,
and it was through the agency of the special writ of injunc-
tion (which is rarely granted excepting in clearly defined
cases) that relief was afforded to the person, or persons, in
the industry when recourse to the courts was necessary.
This is not only interesting but is a commentary on the
haste with which things are done in our day and age, par-
ticularly when affecting a new industry. It is obvious that
the mere fact that there were injunction proceedings, shows
that exigencies arose which required the immediate inter-
ference of the court by this extraordinary and seldom re-
sorted to process, in order to conserve the rights of the in-
dustry or to prevent threatened ruin and destruction.
This also presents another aspect, that since these mat-
ters were largely disposed of by preliminary hearing, with-
out the formal taking of testimony and the right to cross-
55
examine, the principles and doctrines have not been care-
fully evolved, and certainly errors must have crept in. To
illustrate: In the early stages of the industry, the Sunday
aspect arose, usually through attempts of the police to sum-
marily close motion picture theatres on Sunday, so that it
was necessary to rush to court for relief, with the conse-
quent necessity for speedy decision. Since a speedy decision
was required, the court necessarily was obliged to limit the
argument and papers such as the exigency of the case war-
ranted.
Another illustration: In the early stages of the indus-
try, in our own City of New York, the then Mayor, Mc-
Clellan, on the evening preceding Christmas, issued an order
for the wholesale revocation of licenses of every moving
picture theatre in New York, and directing that they be
immediately closed, with instructions to the Police Commis-
sioner to enforce this order. This was a big question and
involved the decision as to whether the Mayor of the city
had either the right or the privilege, by a stroke of the pen,
to practically cripple the industry, not only affecting the
theatres and the many thousands of employes engaged there-
in, but the producers of the pictures, whose market was
found in the theatres through the exhibition of the films;
also the thousands who were engaged in the manufacture of
the films, as well as those manufacturing the material for
the making of the pictures, the cameras and the projecting
machines.
Of course there was necessity for haste. Here again
the extraordinary writ of injunction was resorted to, and
Mr. Justice Blackmar's decision (Fox v. McClellan supra)
was that the action of the Mayor was capricious, whimsical
and without legal grounds, his action rescinded and the
Mayor enjoined.
Another illustration: I have referred to the acts of the
so-called "Motion Picture Trust" and their claim of the
right of refusing to deal in their commodity with the rental
companies. Here again the question was presented by in-
junction, for when there was refusal to deliver their pro-
56
ductions to the Greater New York Film Rental Company,
instantly the necessity for action arose. There was a rush
to the court to enjoin the manufacturers from immediately
carrying out their threat, as a result of which there stands
upon the books to-day a reversal by the Circuit Court of
Appeals of the decision of Judge Learned Hand, to which
I have referred, and which I contend is wrong in principle,
in a proceeding where no oral testimony was taken, no cross-
examination of witnesses, the decision being based merely
upon affidavits or papers presented upon the application for
preliminary injunction.
The copyright, unfair competition and infringement as-
pect presents the same anomoly. Usually these matters are
disposed of on informal hearing. A picture is advertised
for exhibition without the consent of the person holding the
copyright, who rushes into court for an application of in-
junction to restrain the exhibitor from using a pirated or
simulated version of his story. There is no time for a de-
liberate hearing, and the questions involved in the case are
usually disposed of by the judge after almost ex parte read-
ing of the complainants' and defendants' papers.
Obviously, the photo-play, in States where censorship
has been established, is received by the censor shortly in ad-
vance of the advertised day of its production or exhibition.
The decision of the censor may be speedy or delayed as the
case may be. Usually it comes within a few hours before the
advertised release date. If the decision is adverse, the pro-
ducers are necessarily required to hasten into court for re-
lief by injunction. Since thousands of theatres throughout
the country are waiting for the delivery of the film, and
their audiences by advertisements are expecting to see it
shown, there must be speedy action and speedy decision.
Hence, the extraordinary writ of injunction is resorted to,
with the same necessity for speedy decision and the same
lack of opportunity for carefully written opinions, as I have
previously pointed out.
The question may be asked as to what is the remedy for
this. My answer is that if we will get away from the idea,
57
expressed in the opening portion of this lecture, that the
legal Lilliputians shall not tie with the red-tape of legisla-
tion an industry, particularly one in its formative period
without deliberate hearings and action, in a large measure
these results will be avoided.
In the first place, public officials who intend to take action
with respect to the Sunday proposition, should not do so
except by first making application to the court with the right
of hearing of the persons to be affected. In this way the
opportunity is afforded to all those engaged in the industry
to prepare in advance for an adverse decision and to regu-
late their conduct accordingly.
In the matter of copyright, unfair competition and in-
fringement, the law may be so moulded that the person, or
persons, intending to release or exhibit a photo-play, should
give notice by advertising, a sufficient time in advance of
his or their intention so to do ; the statute further providing
that within a certain stipulated number of days, application
may be made to the court, by the person injured, for such
relief as the situation requires; and further providing that
no preliminary injunction shall be issued unless the applica-
tion shall be made within the stipulated time, which should
be such time in advance of the first exhibition as would give
the court opportunity for careful inquiry and decision.
The other abuses, if they be such of which I complain,
could similarly be regulated, either by statute or rules of
court.
Naturally, such a review as we have made
to-night must be cursory and even here and there disjointed.
At the same time I hope that enough has been said to encour-
age research and study of this most fascinating subject.
58
