We move on now to a review of how the courts have dealt with the issues raised by the new technologies for which the statutes then in effect made no specific provisions.

A.2.2 MOTION PICTURES

Motion pictures have been a prime example of a new technology raising questions, as to the application of the copyright law, that the statutes currently in effect did not deal with specifically. The courts were called upon to resolve these questions in various situations involving (1) the status of motion pictures as copyrightable subjectmatter, (2) the use of copyrighted literary and musical works in motion pictures, (3) the rights embraced in the copyright in motion pictures, and (4) the copyright status of motion picture sound tracks.

A.2.2.1 Copyrightability of Motion Pictures. The question of whether motion pictures could be copyrighted arose at the beginning of the twentieth century when the motion picture art was in its infancy. The pertinent statute then in effect (Section 4952 of the Revised Statutes) had been enacted (in 1870) when motion pictures were unknown. The statute did specify, among the categories of copyrightable works, "any photograph or negative thereof." In the case of Edison v. Lubin, decided in 1903, the maker of a series of 4500 photographs which together were to be projected through a machine to show, as a moving picture, the launching of Kaiser Wilhelm's yacht, asserted copyright in the series of pictures as a single "photograph" under the statute. In the District Court (E.D. Pa., 119 F. 993), it was held that the statute did not extend to "an aggregate of photographs," but that each individual photograph would have to be registered separately and to bear the prescribed notice of copyright in order to be protected. On appeal the Circuit Court reversed, holding that the series of photographs, which were all on one continuous strip of film, was copyrightable as one "photograph" within the statute (3d Cir. 122 F. 240).

The differing opinions of the District and Circuit Courts in this case are illustrative of two opposite judicial approaches to the application of the terms of the copyright statute to a later technological innovation. The District Court said:

"It may be true, as has been argued, that this construction of
the section renders it unavailable for the protection of such
a series of photographs as this; but if, for this reason, the
law is defective, it should be altered by Congress, not
strained by the courts. I understand that when this act was
passed these groups of consecutive photographs were practi-
cally speaking, not in existence; and, in the absence of any

expression of the will of Congress which can be applied to them, I am not at liberty to conjecture what further provision, if any, would have been made, if their creation had been foreseen."

In contrast, as the Circuit Court of Appeals saw it:

"The negative and its positive reproduction represent one act
or event, to wit, the launch of the yacht...To say that the
continuous method by which this negative was secured was
unknown when the act was passed, and therefore a photograph
of it was not covered by the act, is to beg the question.
Such construction is at variance with the object of the act,
which was passed to further the constitutional grant of power
"to promote the progress of science and useful arts".
When
Congress, in recognition of the photographic art, saw fit...
to extend copyright protection to a photograph or negative,
it is not to be presumed it thought such art could not pro-
gress, and that no protection was to be afforded such pro-
gress. It must have recognized there would be change and
advance in making photographs, just as there has been in mak-
ing books, printing chromos, and other subjects of copyright
protection. While such advance has resulted in a different
type of photograph, yet it is none the less a photograph--a
picture produced by photographic process...And that it is, in
substance, a single photograph is shown by the fact that its
value consists in its protection as a whole or unit, and the
injury to copyright protection consists not in pirating one
picture, but in appropriating it in its entirety."

That the Circuit Court was eager to apply the act so as to protect the motion picture is further shown by its additional comment:

"We are further of opinion the photograph in question met the statutory requirement of being intended to be perfected and completed as a work of the fine arts. It embodies artistic conception and expression. To obtain it requires a study of lights, shadows, general surroundings, and a vantage point adapted to securing the entire effect...We have no question that the present photograph sufficiently fulfills the character of a work of the fine arts.

In sum, the District Court opinion reflects the approach of giving the terms of the statute the application they had when enacted, with reluctance to extend those terms to subsequent technological innovations; while the Circuit Court opinion shows the tendency to construe the terms of the act in the light of the basic purpose of copyright to protect

works of authorship and, in that light, to extend the act to new technological developments that can be analogized to objects specified in the act.

The holding by the Circuit Court of Appeals in Edison v. Lubin was followed and carried a step further in American Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 F. 262 (D.N.J. 1905). The Lubin decision had equated the motion picture of a single, continuous event -- made at one time and place using a pivoted camera -- with a "photograph"; in American Mutoscope the motion picture consisted of several sequences of pictures taken at different times and places so that, when shown as a continuous series, they told a story. Said the court in American Mutoscope:

"I am unable to see why, if a series of pictures of a moving
object taken by a pivoted camera (as in the Lubin case) may
be copyrighted as a photograph, a series of pictures telling
a single story ..., even though the camera be placed at dif-
ferent points, may not also be copyrighted as a photograph.
Though taken at different points, the pictures express the
author's ideas and conceptions embodied in the one story.
that story, it is true, there are different scenes. But no
one has ever suggested that a story told in written words may
not be copyrighted merely because, in unfolding its incidents,
the reader is carried from one scene to another."

In

Here again, the court finds its way to protection of a work of authorship in a new technological medium by analogizing that medium with an older one specifically provided for in the statute.

A.2.2.1.1 White-Smith v. Apollo. We digress briefly from the motion picture cases to mention, in its chronological order, the ruling of the U.S. Supreme Court in 1908 in the celebrated case of White-Smith Music Publishing Co., v. Apollo Co., 209 U.S. 1, on the question of whether the making of sound recordings (piano rolls in this case) by which music could be played, infringed the copyright in the music. The court held that the exclusive right to copy the music was not infringed because "copy" was understood to denote a visual reproduction of the written musical score. This ruling that visual perceptibility was an essential element of a "copy" was to be cited profusely thereafter in various contexts including some of the motion picture issues. We shall examine the White-Smith decision more fully in the later discussion of cases dealing with sound recordings as a new technology.

A.2.2.2 Motion Picture Version of Copyrighted Novel. Whether a motion picture telling, in pictorial pantomime, portions of the story of the novel "Ben Hur" infringed the copyright in that novel, was the question raised in Harper & Bros. v. Kalem Co., before the Second Circuit Court of Appeals (169 F. 61) in 1909 under the older statute. The court felt constrained first, by the Supreme Court ruling in White-Smith v. Apollo, to hold that the motion picture was not a copy of the novel since it did not reproduce the language of the novel; but it got around the WhiteSmith doctrine by finding that the right of an author to dramatize his work, which the statute provided for in general terms, had been infringed by exhibiting the motion picture. It reached this result by equating the exhibition of the motion picture with a stage presentation:

"It can hardly be doubted that, if the story were acted without dialogue, the performance would be a dramatization of the book; and we think that, if the motions of the actors and animals were reproduced by moving pictures, this would be only another form of dramatization."

The Supreme Court, reviewing the case in 1911 (222 U.S. 55), agreed with this view. In his opinion Justice Holmes said:

"Whether we consider the purpose of this clause of the statute
(giving authors the exclusive right to dramatize their works)
or the etymological history and present use of language, drama
may be achieved by action as well as by speech. Action can
tell a story, display all the most vivid relations between
men, and depict every kind of human emotion without the aid of
a word. It would be impossible to deny the title of drama to
pantomime as played by masters of the art... But if a pantomime
of Ben Hur would be a dramatizing of Ben Hur, it would be
nonetheless so that it was exhibited to the audience by re-
flection from a glass... The essence of the matter...is not the
mechanism employed but that we see the event or story lived.'

Thus, the Circuit and Supreme Courts here took the view that the use of a new medium to present a version of a copyright work was not an essential factor, but that the use of the work with the effect that copyright was designed to cover was determinative.

A.2.2.3 Performance Rights in Motion Pictures. When the copyright law was revised in 1909, no mention was made of motion pictures, although they were well known by that time as shown by the cases reviewed above. This omission was rectified by amendments enacted in 1912 (37 Stat. 488), which added to the categories of copyrightable works listed in Section 5

of the statute, "Motion-picture photoplays" and "Motion pictures other than photoplays." Strangely enough, however, the 1912 amendments made no corresponding change in the specifications, in Section 1 of the 1909 act, of the rights embraced in copyright, thus leaving the situation this way: The right to make and publish copies was provided for in the 1909 statute as being applicable to all categories of works, and was therefore applicable to motion pictures after the amendments of 1912; but the right of public performance was provided for as being applicable specifically to dramatic and musical works. So it was that the courts were called upon to determine whether unauthorized performances ("exhibitions") of copyrighted motion pictures infringed the copyright under the 1909 statute.

This question was presented in Tiffany Productions v. Dewing, 50 F. 2d 911 (D. Md. 1931) with respect to exhibitions of a motion picture by a licensed exhibitor beyond the times and places specified in the license. On the basis of the Supreme Court decision in White-Smith v. Apollo, the court here held that exhibiting a motion picture was not the making of a "copy." The court was doubtful as to whether exhibiting a motion picture might be an infringing "publication" of it: The court said the White-Smith decision indicated a negative answer, but that the generally recognized meaning of "publication" would seem to warrant a contrary conclusion. The approach of the court to adapting the terms of the statute to a new situation not specifically provided for is shown by its following observation:

"As a practical matter, the value of the copyright consists in the monopolistic right to project and exhibit the picture itself from each and every film as well as the right to exclude others from duplicating the film. Protection merely of the latter right may be entirely ineffectual to accomplish the desired end. The statute must be given a sensible meaning in its application to modern invention, expressly within the scope of the statute."

The court then went on to hold that a motion picture photoplay is a form of "dramatic work" even though the two are mentioned as separate classes of works in section 5 of the act, so that the exclusive right provided in section 1 to "publicly perform" a dramatic work applies to the public exhibition of a motion picture photoplay.

Concurrently with the Tiffany Productions case, the same question whether the copyright in a motion picture was infringed by its exhibition beyond those specified in a license -- was considered also in Metro-Goldwyn-Mayer v. Bijou Theatre, 50 F. 2nd 908 (D. Mass. 1931), where the District Court reached the opposite result. The court here rejected the premise that a photoplay is a "dramatic work" within the