The Federal Reporter (Annotated), Volume 169: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. June-July, 1909. Page: 64
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64 169 FEDERAL REPORTER.
And this court, in the case of Daly v. Webster, 56 Fed. 483, 4 C. C.
A. 10,; said:
' upon the main point of the case, namely, whether the combination or
series of dramatic events (apart from the dialogue) which makes up the par-
ticular scene or portion of the play claimed to be infringed is a dramatic
composition, and as such entitled to protection under the copyright laws, it is
necessary to add but little to the exhaustive opinion of Judge Blatchford, re-
ported in Daly v. Palmer, 6 Blatchf. 256, Fed. Cas. No. 8,552 The same scene
in the same play is elaborately discussed by him, and in his conclusion that it
is a dramatic composition we concur. In plays of this class the series of
events is the only composition of. any importance. The dialogue is unimport-
ant, and as a work of art trivial. The effort of the composer is directed to
arranging for' the stage a series of events so realistically presented, and so
worked out by the display of feeling or earnestness on the part of the actors,
as to produce a corresponding emotion in the audience. Such a composition,
though its success is largely dependent upon what is seen, irrespective of the
dialogue, is dramatic. It tells a story which is quite as intelligible to the
spectator as if it had been presented to him in a written narrative."
It can hardly be doubted that,, if the story were acted without dia-
logue, the performance would be a dramatization of the book; and
we think that, if the motions of the actors and animals were reproduc-
ed by moving pictures, this would be only another form of dramatiza-
tion. If the defendant had taken a series of moving pictures of the
play as actually performed by Klaw & Erlanger, the exhibition of them
would certainly be an infringement of the dramatic composition, be-
cause it would tell the story as they tell it, within the decision of Daly
v. Palmer and baly v. Webster, supra.
It is next objected that the defendant cannot be held as a contribu-
tory infringer, because its films are capable of innocent use; e. g., ex-
hibitions for private amusement. This fact only compels the complain-
ants to prove that the defendant does promote a guilty use of them. In-
asmuch as it advertises the films as capable of producing a moving
picture spectacle of Ben Hur, and sends its advertisements to proprie-
tors of theatoriums with the expectation and hope that they will use
them for public exhibitions, charging an entrance fee, and inasmuch as
many of these proprietors have so used them, the defendant is clear-
ly guilty of contributory infringement.
Finally, the defendant relies upon section 8, article 1, of the Consti-
tution, that Congress shall have the power "to promote the progress of
science and useful arts by securing for limited times to authors and
inventors the exclusive right to their respective writings and discover-
ies." It is argued from this that, as these moving pictures only ex-
press the artist's 'conception of the author's ideas as expressed in the
words of the copyrighted book or dramatic composition, they cannot
be said to infringe the author's rights. But the history of the copyright
law does not justify so narrow a construction of the word "writings."
The first copyright law of 1790 (Act May 31, 1790, c. 15, 1 Stat. 124),
included maps and charts as well as books. In 1802 (Act April 29, 1802,
c. 36, 2 Stat. 171) copyright was extended to engravings, etchings, and
prints. In 1856 (Act Aug. 18, 1856, c. 169, 11 Stat. 138) it was extended
in the case of copyrighted dramatic compositions to the right of pub-
licly performing the same. In 1870 (Act July 8, 1870, c. 230, 16 Stat.
212) it was extended to paintings, drawings, chromos, statues, models,
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The Federal Reporter (Annotated), Volume 169: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. June-July, 1909., legislative document, 1909; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38215/m1/75/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.