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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:

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"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

scope of the statutory provision granting a performance right for dramatic works. The court took the narrow view that when this latter provision was enacted,

"Nobody then thought of 'drama' or 'dramatic work' in terms
of motion pictures. A moving-picture play is utterly dif-
ferent from anything then conceivable -- an entirely new
method of communicating ideas."

The court then observed that:

"As a general rule, the effect of a new invention in any given field seems to be a matter for legislative consideration, rather than for the extension of existing statutes by judicial construction."

On appeal, the District Court ruling in the Bijou Theatre case was set aside by the Circuit Court of Appeals (59 F. 2d 70, 1st Cir. 1932), which adopted the view of the court in the Tiffany decision. The Circuit Court stated its approach in seeking to find the intention of Congress as follows:

"The copyright statutes ought to be reasonably construed with
a view to effecting the purposes intended by Congress. They
ought not to be unduly extended by judicial construction to
include privileges not intended to be conferred, nor so nar-
rowly construed as to deprive those entitled to their benefit
of the right Congress intended to grant."

Leaning on court decisions (notably Buck v. Jewell-La Salle, 283 U.S. 191 (1931), to be discussed below) holding that radio transmission and reception were within the statutory provisions as to public performance of music, the Circuit Court commented:

"No sound reason appears why publication through the sense of hearing is more damaging than publication through the sense of sight. If inhibition is applicable to the former, it should also apply to the latter. There appears to be an increasing tendency to liberalize the construction of copyright statutes to meet new conditions which have rapidly developed within the last decade and which are continuing to develop, perhaps most strikingly illustrated by the application of radio broadcasting to copyright."

On remand of M.G.M. v. Bijou Theatre, 3 F. Supp. 66 (D. Mass. 1933) (remanded for determination that the motion picture involved was a "photoplay") the District Court followed the Circuit Court opinion in holding that the unauthorized exhibition of the photoplay infringed the right to perform it as a species of dramatic work. It said further that if the motion picture were considered non-dramatic, its exhibition would infringe the right specified in the statute to dramatize a non-dramatic work.

The Tiffany Productions and Bijou Theatre decisions may be seen as indicating the view that the economic benefits of copyright were intended to be accorded for uses of copyrighted works in connection with new technological processes, even though such uses through those processes were not expressly provided for in the statute, as long as similar uses through previously known processes were within the terms of the statute.

A.2.2.4 Sound Tracks as a Protected Part of Copyrighted Motion Picture. A whole new set of questions was raised by the advent of "talking pictures" near the end of the 1920s. One such question was presented in the case of L.C. Page & Co.v. Fox Film Corp., 83 F. 2d 196 (2d Cir. 1936) where the author of a copyrighted novel licensed the plaintiff to exercise "the exclusive moving-picture rights" in the novel; this license was granted in 1923 when "talking pictures" were not yet known commercially. One of the issues in the case was whether this license gave the plaintiff the exclusive right to make talking pictures when they were later developed. The court held that the license did cover talking pictures:

"We can entertain no doubt that the words used, "the exclusive
moving picture rights," were sufficient to embrace not only
motion pictures of the sort then known but also such technical
improvements in motion pictures as might be developed... The
development of mechanisms making it possible to accompany the
screen picture with the sound of spoken words was but an im-
provement in the motion picture art. As the plaintiff well
says, 'talkies' are but a species of the genus motion pictures."

A more fundamental question raised by the development of sound tracks was whether the sound track and its literary or musical content are protected by the copyright in the motion picture. There appear to be no judicial rulings on this precise question. In practice the industry groups concerned tacitly accepted and operated on the premise that the sound track is protected as an integral part of the motion picture; and this premise appears to be logically valid since the pictures and sound together are necessary to constitute the complete work and to convey its artistic effect.

As some commentators have pointed out,* there was room for doubt as to whether the copyright in a motion picture protected its sound track, since sound tracks might be equated with phonograph recordings which (before the enactment in 1971 of the statutory amendment to be referred to presently) were not copyrightable. Because of this doubt, the Copyright Office, until 1975, stated in its Compendium of Copyright Office Practices (section 2.14.1, III):

"a. The Copyright Office takes no position as to whether

copyright in a motion picture covers the integrated
sound track portions of the work.

b. Registration is not made for a sound track alone, or for

a sound track as the only new matter in a previously
published or registered motion picture."

On October 15, 1971, the copyright law was amended by Public Law 92-140 to extend copyright protection for the first time to "sound recordings" which were defined as "not including the sounds accompanying a motion picture." The House Report (No. 92-487) on this amendment explained:

"In excluding 'the sounds accompanying a motion picture' from
the scope of this legislation, the Committee does not intend
to limit or otherwise alter the rights that exist currently
in such works. The exclusion reflects the Committee's
opinion that sound tracks or audio tracks are an integral part
of the 'motion pictures' already accorded protection ... and
that the reproduction of the sound accompanying a copyright
motion picture is an infringement of copyright in the motion
picture."

This amendment and the pronouncement in the Congressional Report served to remove the doubt about the protection of the sound track under the copyright in the motion picture. On March 19, 1975, the Copyright Office amended its regulations to state:

"For purposes of deposit and registration only, any copy-
rightable component part of a motion picture sound track
(e.g., a musical composition) is considered an integral part
of a motion picture. Registration of any copyrightable com-
ponent part of a motion picture sound track may be made by
registration of the motion picture...'

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* For example, NIMMER ON COPYRIGHT, sec. 25(2).

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