222 U.S. 55 (1911), 26, Kalem Co. v. Harper Brothers

Docket NºNo. 26
Citation222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92
Party NameKalem Co. v. Harper Brothers
Case DateNovember 13, 1911
CourtUnited States Supreme Court

Page 55

222 U.S. 55 (1911)

32 S.Ct. 20, 56 L.Ed. 92

Kalem Co.

v.

Harper Brothers

No. 26

United States Supreme Court

November 13, 1911

Argued October 31, November 1, 1911

APPEAL FROM THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

An exhibition of a series of photograph of persons and things, arranged on film as moving picture and so depicting the principal scenes of an author's work as to tell the story, is a dramatization of such work, and the person producing the film and offering them for sale for exhibition, even if not himself exhibiting them, infringes the copyright of the author under Rev.Stat., § 4952, as amended by the Act of March 3, 1891, c. 565, 26 Stat. 1106.

Quaere whether there would be infringement if the illusion of motion were produced from paintings, instead of photographs of real persons, and also quaere whether such photographs can be copyrighted.

Rev.Stat., § 4952, as amended by the Act of March 3, 1891, c. 565, 26 Stat. 1106, confines itself to a well known form of reproduction, and does not exceed the power given to Congress under Art. I, § 8, cl. 8 of the Constitution to secure to authors the exclusive right to their writings for a limited period.

169 F. 61 affirmed.

The facts are stated in the opinion.

Page 60

HOLMES, J., lead opinion

[32 S.Ct. 21] MR. JUSTICE HOLMES delivered the opinion of the Court.

This is an appeal from a decree restraining an alleged infringement of the copyright upon the late General Lew Wallace's book "Ben Hur." 169 F. 61. The case was heard on the pleadings and an agreed statement of facts, and the only issue is whether those facts constitute an infringement of the copyright upon the book. So far as they need to be stated here, they are as follows: the appellant and defendant, the Kalem company, is engaged in the production of moving-picture films, the operation and effect of which are too well known to require description. By means of them, anything of general interest, from a coronation to a prize fight, is presented to the public with almost the illusion of reality -- latterly even color being more or less reproduced. The defendant employed a man to read Ben Hur and to write out such a description or scenario of certain portions that it could be followed in action, these portions giving enough of the story to be identified with ease. It then caused the described action to be performed, and took negatives for moving pictures of the scenes, from which it produced films suitable for exhibition. These films it expected and intended to sell for

Page 61

use as moving pictures in the way in which such pictures commonly are used. It advertised them under the title

Ben Hur. Scenery and Supers by Pain's Fireworks Company, Costumes from Metropolitan Opera House. Chariot Race by 3d Battery, Brooklyn. Positively the Most Superb Moving Picture Spectacle Ever Produced in America, in Sixteen Magnificent Scenes,

etc., with taking titles, culminating in "Ben Hur Victor." It sold the films, and public exhibitions from them took place.

The subdivision of the question that has the most general importance is whether the public exhibition of these moving pictures infringed any rights under the copyright law. By Rev.Stat. § 4952, as amended by the Act of March 3, 1891, c. 565, 26 Stat. 1106, p. 3406, authors have the exclusive right to dramatize any of...

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107 practice notes
  • 298 F. 470 (E.D.S.C. 1924), 252, M. Witmark & Sons v. Pastime Amusement Co.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (4th Circuit)
    • May 13, 1924
    ...35 Stat. 1075 (Comp. St. Sec. 9517)) gives the copyright owner the right 'to dramatize it, if it be a nondramatic work. ' Kalem v. Harper, 222 U.S. 55, 61, 32 Sup.Ct. 20, 56 L.Ed. 92, Ann. Cas. 1913A, 1285. By the assignment referred to the plaintiff did not part with the right to dramatize......
  • 40 Cal.2d 799, 22094, Kurlan v. Columbia Broadcasting System
    • United States
    • California United States State Supreme Court (California)
    • April 29, 1953
    ...the resulting drama be adapted for presentation in the form of a stage play or for exhibition on the screen (Kalem Co. v. Harper Bros, 222 U.S. 55 [56 L.Ed. 92, Ann.Cas. 1913A 1285]; International Film S. Co. v. Affiliated Distributors, 283 F. 229). For the purpose of the demurrer, all alle......
  • 17 S.E.2d 689 (S.C. 1941), 15335, Grant v. Butt
    • United States
    • South Carolina United States State Supreme Court of South Carolina
    • December 1, 1941
    ...to perform. A contract that invokes prohibited conduct makes the contractor a contributor to such conduct. Kalem Co. v. Harper Bros., 222 U.S. 55, 63, 32 S.Ct. 20, 56 L.Ed. 92, 96, Ann.Cas.1913A, 1285. And more broadly, it long has been recognized that contracts that obviously and directly ......
  • 189 N.W. 729 (Iowa 1922), 34911, 34912, City of Ames v. Gerbracht
    • United States
    • Iowa United States State Supreme Court of Iowa
    • September 19, 1922
    ...does not, would, we think, be doing violence to language, and would likewise be contrary to common sense. In Kalem Co. v. Harper Bros., 222 U.S. 55, 56 L.Ed. 92, 32 S.Ct. 20, the Supreme Court of the United States considered an appeal regarding an alleged infringement of the copyright of th......
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96 cases
  • 298 F. 470 (E.D.S.C. 1924), 252, M. Witmark & Sons v. Pastime Amusement Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • May 13, 1924
    ...35 Stat. 1075 (Comp. St. Sec. 9517)) gives the copyright owner the right 'to dramatize it, if it be a nondramatic work. ' Kalem v. Harper, 222 U.S. 55, 61, 32 Sup.Ct. 20, 56 L.Ed. 92, Ann. Cas. 1913A, 1285. By the assignment referred to the plaintiff did not part with the right to dramatize......
  • 40 Cal.2d 799, 22094, Kurlan v. Columbia Broadcasting System
    • United States
    • California Supreme Court of California
    • April 29, 1953
    ...the resulting drama be adapted for presentation in the form of a stage play or for exhibition on the screen (Kalem Co. v. Harper Bros, 222 U.S. 55 [56 L.Ed. 92, Ann.Cas. 1913A 1285]; International Film S. Co. v. Affiliated Distributors, 283 F. 229). For the purpose of the demurrer, all alle......
  • 17 S.E.2d 689 (S.C. 1941), 15335, Grant v. Butt
    • United States
    • South Carolina Supreme Court of South Carolina
    • December 1, 1941
    ...to perform. A contract that invokes prohibited conduct makes the contractor a contributor to such conduct. Kalem Co. v. Harper Bros., 222 U.S. 55, 63, 32 S.Ct. 20, 56 L.Ed. 92, 96, Ann.Cas.1913A, 1285. And more broadly, it long has been recognized that contracts that obviously and directly ......
  • 189 N.W. 729 (Iowa 1922), 34911, 34912, City of Ames v. Gerbracht
    • United States
    • Iowa Supreme Court of Iowa
    • September 19, 1922
    ...does not, would, we think, be doing violence to language, and would likewise be contrary to common sense. In Kalem Co. v. Harper Bros., 222 U.S. 55, 56 L.Ed. 92, 32 S.Ct. 20, the Supreme Court of the United States considered an appeal regarding an alleged infringement of the copyright of th......
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11 books & journal articles
  • Rehabilitating the property theory of copyright's First Amendment exemption.
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • December 1, 2013
    ...a First Amendment dispute because "the [g]overnment ... is seeking to suppress the ideas expressed"); Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911) (upholding copyright law against constitutional challenge because "there is no attempt to make a monopoly of the ideas expre......
  • Reducing digital copyright infringement without restricting innovation.
    • United States
    • Stanford Law Review Vol. 56 Nbr. 6, May 2004
    • May 1, 2004
    ...Sept. 29, 2003, available at http://news.com.com/2100-10275083282.html (last visited Apr. 3, 2004). (33.) Kalem Co. v. Harper Bros., 222 U.S. 55 (1911), is the preeminent early Supreme Court case recognizing indirect liability for copyright infringement. The current statute, 17 U.S.C. [sect......
  • Fixing through legislative fixation: a call for the codification and modernization of the staple article of commerce doctrine as it applies to copyright law.
    • United States
    • Marquette Intellectual Property Law Review Vol. 11 Nbr. 2, June 2007
    • June 22, 2007
    ...Litig., 334 F.3d 643, 650 (7th Cir. 2003). (300.) Id. (301.) Id. (302.) See Sony, 464 U.S. at 435 (citing Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911) (holding the defendant liable on principles recognized in every part of the law)) (noting that vicarious liability is imposed in virtua......
  • Table of Cases
    • United States
    • Copyright Law Chapter 8: State Law and Its Preemption
    • October 28, 1991
    ...(8th Cir. 1986), 29. Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173 (9th Cir. 1989), 22. Kalem Co. v. Harper Bros., 222 U.S. 55 (1911), 79. Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980), 31. King v. Mister Maestro, Inc., 224 F. Supp. 101 (S......
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