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. In
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."

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

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")