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

Docket Nº:No. 26
Citation:222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92
Party Name:Kalem Co. v. Harper Brothers
Case Date:November 13, 1911
Court:United States Supreme Court

Page 55

222 U.S. 55 (1911)

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

Kalem Co.


Harper Brothers

No. 26

United States Supreme Court

November 13, 1911

Argued October 31, November 1, 1911




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.

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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...

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