157 N.Y.S. 1028 | N.Y. App. Div. | 1916
The plaintiff, claiming to own the literary rights as well as the performing rights in a dramatization of Alexander Dumas’ novel “ The Count of Monte Cristo,” by Charles Fechter, brought this suit in equity to enjoin the defendant from producing or exhibiting, or distributing for production and exhibition on the stage or in any theatre or place of amusement, any motion picture films containing in whole or in part any of the scenes, incidents, plot or story of said novel as so dramatized, or any simulated or colorable imitation or adaptation thereof.
Dumas’ novel was published in 1845. He wrote a dramatization thereof in French in 1848. There was a dramatization prior to 1870 in English known as the ‘ ‘ French-Lacy Dramatization.” Charles Fechter, a Frenchman, -wrote another English dramatization of the novel for Benjamin Webster, who was a celebrated actor and the manager of the Adelphi Theatre, London, Eng., and it was publicly performed at that theatre on or about the 19th of October, 1868, Webster playing the role of Noirtier, which was written expressly for him, and Fechter the role of Edmond Dantes, who becomes the Count of Monte Cristo. As a condition precedent to the issuance of a license to present the play, under the English statute regulating theatres (6 & 7 Viet. chap. 68, § 12), a printed copy of this dramatization by Fechter was filed with the Lord Chamberlain of Her Majesty’s Household on the 17th day of October, 1868, and such a license was duly issued. The London newspapers, including the Daily Telegraph, gave extended accounts of the play as thus presented. According to the testimony of the plaintiff, Fechter thereafter came to the United States and appeared in the presentation of the play in the same role in various theatres in this country from 1873 until his death in
“Monte Cristo
Arranged and Adapted Expressly for Arthur Cheney, Esq.;
Proprietor and Manager of the GLOBE THEATRE, BOSTON, MASS.
-by-
CHARLES FECHTER, ESQUIRE Under the Stage Direction of Arthur Le Clercy.
First Representation -at-
GLOBE THEATRE, BOSTON, MASS.
-on-
Monday Evening, Sept. 12th, 1870
-and-
Now the Property of MR. JOHN STETSON
-of the-
FIFTH AVENUE THEATRE, NEW YORE -and the-
GLOBE THEATRE, BOSTON, MASS.
Who Has the Sole and Exclusive Right of Production for the UNITED STATES AND CANADAS”
It appears by a comparison of this manuscript with the printed play filed with the Lord Chamberlain in London as
.The trial-court found, in effect, that the defendant used the Fechter version in making a motion picture film for the production of Monte Cristo as a motion picture play. The defendant excepted to such finding, and although we are not expressly asked to reverse it, counsel for appellant contends that no infringement was shown. The defendant is a corporation organized under the laws of Maine, and is engaged in the business of renting and distributing films for motion pictures. It employed the Selig Polyscope Company, an Illinois corporation, to make a motion picture film for the presentation of the motion picture play, and that company engaged actors and actresses whose playing was photographed by it. Between the 14th day of October, 1912, and the 13th day of January, 1913, the defendant distributed among motion picture theatres forty or more motion picture films from each of which the play was publicly presented. The usual practice of the company in making a motion picture film of a play or novel was to prepare a scenario which is used by the director who has charge of preparing and presenting the scenes of which motion pictures are taken. The motion picture photoplay prepared for defendant consisted of three reels, with thirty pictures in the first, thirty-nine in the second and twenty-seven in the third. No evidence was offered on the part of the defendant with respect to the source from which the scenario used in making the motion picture was taken, and no explanation with respect thereto was offered. The trial court by consent witnessed a presentation of the motion picture photoplay as presented by defendant, and was thereby aided in determining the question of fact; but without the evidence thus taken by viewing the picture it is quite clear from the record that the motion picture photoplay presented by the defendant was prepared to a
The next question" to be considered is whether the Fechter dramatization was dedicated to the public, either by filing the printed copy with the Lord Chamberlain or by the expiration of the statutory period of forty-two years from the first public representation or performance in England. (5 & 6 Viet. chap. 45, §§ 3, 20.) These statutory provisions gave protection to the performing rights in plays for the period provided for copyright in books, which was for the natural life of the author and for seven years after his death and until the expiration of forty-two years from the first publication. Seven years after Fechter’s death expired before the end of forty-two years from the first public performance in 1868. The period during which the performing rights were protected expired in 1910. • I am of opinion that -there is no force in the argument that there was a dedication to the public by filing the printed copy of the play as stated, for that was a condition precedent, under the English statute regulating theatres, to the right to present a public performance of the pktyiy (6 & 7 Viet. chap. 68, §§ 12,13.) ¿Upon no theory can it be held that the newspaper accounts of the presentation of the play constituted a dedication by the owner thereof to the public. ^ If the play had been copyrighted in England, then the argument of the learned counsel for the appellant that it became dedicated to the public at the expiration of the copyright would he unanswerable, for the same rule is applicable to copyright of literary works as obtains with respect to patents and registered trade marks. (Merriam v. Famous Shoe & Clothing Co., 47 Fed. Rep. 411; Merriam Co. v. Syndicate Pub. Co., 207 id. 515; appeal dismissed, 237 U. S. 618; Atlas Mfg. Co. v. Street & Smith, 204 Fed. Rep. 398; appeal dismissed, sub nom. Street & Smith v. Atlas Mfg. Co., 231 U. S. 348.) But the publication o'f the play under the then existing English Copyright Law, as under our own, except in
The next question to be considered is whether the plaintiff established a sufficient title or interest to enable him to maintain the action. The only title he claims is • that derived from Stetson, his assignor, and from his possession of the manuscript in the original form without publication since, and the performance of the play continuously since, involving upwards of 5,000 performances of it, under a claim of ownership both of the play and of the performing right therein and his maintenance of his rights by bringing actions against 'all who have threatened to violate them, and by preventing the presentation of the play by others "without their acknowledging his rights and paying royalty to him for the privilege. The only evidence of Stetson’s ownership of the play and of the performing right therein, aside from the recitals on the title page of the manuscript, is evidence to the effect that prior to selling the play to the plaintiff he presented it at various theatres for some years and that he had possession of the manuscript, and verbal declarations by him to the effect that he had purchased the Globe Theatre and the play from Cheney, and an allegation in a complaint verified by him on the 11th of September, 1884, in a suit against one Studley in the Supreme Court in Kings county to enjoin the presentation of the play to the effect that he was the sole and exclusive owner of the play and had purchased it from Cheney on the 31st day of August, 1877. The trial court found that Fechter gave public performances of the play from the year 1873 until his death in 1879, and that during all of that time he had in his possession a copy of the
The evidence showed and the trial court found that the plaintiff and his assignor, Stetson, for the purpose of advertising performances of the play, took flashlight photographs of many of the important scenes and incidents of the play as represented on the stage, and reproduced therefrom pictorial posters and prints and widely circulated and displayed them in show windows and on billboards and other public places in various parts of the United States. Counsel for appellant contends that this constituted a publication of the play or of its important features, and that any one was thereafter at liberty to present the play with such features by motion pictures. The public presentation of a play is not a dedication thereof. (Palmer v. De Witt, 47 N. Y. 532.) The public posting of posters and prints was merely incidental to the presentation of the play. The posters and prints did not tell the story of the i play in connected form, or constitute a representation of the drama. (See Kalem Co. v. Harper Bros., 222 U. S. 55, 62.) Such a publication in no sense constitutes a dedication to the public of the play or the performing right.
Counsel for appellant finally contends that in any event the complaint should have been dismissed for want of right in the plaintiff to equitable relief on November 18, 1912, when the action was commenced. The basis of his contention in this regard is the copyrighting by the Famous Players Film Company with the consent of the plaintiff of a motion picture photoplay of the plaintiff’s play, and the facts preceding it.
The plaintiff testified, and the trial court found, that on or
By the steps taken by the plaintiff and by the Famous Players Company under that contract, which culminated in copyrighting the motion picture films, it is quite clear, I think, that the plaintiff parted with any common-law motion picture rights he had in the play, to the extent, at least, represented by the motion pictures thus taken and copyrighted; but whether all common-law motion picture rights, with respect to scenes and incidents in the play not represented in the copyrighted motion picture films, and not preserved by the substituted statutory right, have been abandoned or lost, is a question not free from difficulty and on which we find no precedent.
It follows, therefore, that the judgment should be modified by limiting the recovery of damages to the 10th day of December, 1912, and as thus modified affirmed, without costs.
Clarke, P. J., McLaughlin, Dowling and Smith, JJ., concurred.
Judgment modified as directed "in opinion, and as modified affirmed, without costs. Order to be settled on notice.