Hart v. BF Keith Vaudeville Exchange

• Decision Date: 03 May 1926
• Docket Number: No. 303,304.,303
• Parties: HART v. B. F. KEITH VAUDEVILLE EXCHANGE et al. (two cases).
• Court: U.S. Court of Appeals — Second Circuit

12 F.2d 341 (1926)

HART v. B. F. KEITH VAUDEVILLE EXCHANGE et al. (two cases).

Nos. 303, 304.

Circuit Court of Appeals, Second Circuit.

May 3, 1926.

Eppstein & Axman, of New York City (Martin W. Littleton, Louis B. Eppstein, Laurence H. Axman, and Ira W. Hirshfield, all of New York City, of counsel), for plaintiff.

Maurice Goodman, of New York City, for defendant B. F. Keith Vaudeville Exchange.

J. Henry Walters, of New York City, for defendants Albee and Murdock.

William F. S. Hart, of New York City (Charles E. Hughes and Maurice Goodman, both of New York City, of counsel), for defendant Proctor.

Charles H. Studin, of New York City (Leon Mintz, of New York City, of counsel), for defendants Orpheum Circuit, Inc., Excelsior Collection Agency, Inc., Beck and Vincent.

Before HOUGH, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge.

By stipulation, the parties agreed to try these causes as one and to enter a judgment and decree accordingly. They were tried before the District Judge, a jury having been waived in the law action. The decision in each case depends principally upon the determination of whether the parties were engaged in interstate commerce in their respective business. They may be and will be considered in one opinion, and we shall refer to the parties as plaintiff and defendants as below.

Considering the facts most favorable to the plaintiff, the plaintiff's business is said to be that of booking "big time" vaudeville acts and acting as personal representative for the owners of such "big time" acts. He negotiated booking contracts upon an interstate schedule. "Vaudeville" is a term used in the trade as describing a species of entertainment composed of a number of isolated acts and attractions put together so as to form a balanced show. The acts run in sequence. The theaters where they are played are referred to as vaudeville houses. A "two a day" performance is referred to as "big time" vaudeville act. There is another class of theaters, referred to as "small time" and "continuous performance" houses.

The vaudeville business consists of the author or creators of vaudeville acts, who sell or otherwise dispose of their offerings for cash or on a royalty basis; producers of acts who acquire the right to produce vaudeville acts, procuring the scenery, appliances, costumes, animals, actors, or artists necessary for the production of the act; artists or actors who perform in vaudeville acts; also booking agents, who procure contracts for appearance of vaudeville acts in the vaudeville theaters. After such booking contracts are made, the actors or artists, with whatever clothing they may need, travel from state to state throughout the United States. Much of the scenery is found in the particular theater where they act. There are times when appliances, scenery, and animals necessary for a particular artist's use in acting are taken with him. There is also the personal representative who represents the owners of vaudeville acts in their relation with booking agencies. They represent the principals in the negotiations for contracts, securing the best terms for their employer, and laying out the routes and caring for the transportation of the act — actors, scenery, or whatever else may make up the act.

The theater owners are the operators of the theaters in which the vaudeville entertainment is produced. The vaudeville act may require in its performance animals of various kinds, as well as clothing. The defendants' business may be generally described as that of booking contracts for vaudeville performers to perform in theaters throughout the United States; also acting as their manager and representative. Some of the defendants named are owners of theaters referred to as the Keith and Orpheum Circuits.

The violation of section 7 of the Sherman Act of July 2, 1890, c. 647 (26 Stat. 209 Comp. St. § 8829), which it is said injured the business or property of the plaintiff, and which directly and unduly restrained interstate commerce, was shown by the testimony of the plaintiff to consist of the Keith interest enjoying the scope of their operations in the territory apportioned to it and using contracts containing restrictive covenants against other theater interests, while the same practices were indulged in by the Orpheum Circuit in the West, the territory apportioned to it. In the Eastern territory, the right to book for all other circuits was obtained by the Keith interests. There is evidence that the owners of theaters by agreements surrendered control of their properties; new corporate entities were organized, which, in effect, required the surrender of the control of the various theaters as a condition precedent to procuring for such theaters their attractions. When new competition arose in the booking end of the business, such competitors were eliminated by the payment of large sums of money, sometimes secretly paid, and an agreement made by the parties that the seller would not engage in the business of booking vaudeville attractions, or permit any theater owned or controlled by them to engage in such business. Their contracts required payment of money for the privilege of continuing business. There was price fixing by way of arbitrarily determining the prices to be paid for vaudeville acts. Collection agencies owned and controlled by the defendants required managers and personal representatives of actors to pay compensation for the privilege of obtaining bookings. Other ways of canceling unexpired contracts were indulged in.

The theory of the plaintiff's case is that the defendants have monopolized the business of giving vaudeville exhibitions. It is not that this business of giving vaudeville exhibitions constituted interstate commerce, but that the owners of the several theaters of the circuits refused to engage in transactions of interstate commerce with others in their business of booking acts, which were to pass in interstate commerce, to be performed in the several states as exhibitions or entertainments. The argument is that the defendants combined to control all "machinery" for booking attractions and dominated the "purely interstate element of their business," using their power to crush the plaintiff in his business, and to restrain owners of vaudeville theaters, producers, artists, and others from negotiating with one another. The real test suggested by the plaintiff is whether or not the acts complained of directly and unduly restrained interstate commerce.

The booking contract referred to is a contract made for the employment of the artist. In some instances it did, and in others it did not, provide for transportation or production of properties. To satisfy the particular number of persons who were engaged to perform, it did not always require the furnishing or presentation of costumes or other paraphernalia. They did require the artist to furnish the music score or sheet music. By a law of the state of New York (chapter 700 of the Laws of 1910 amending General Business Law Consol. Laws, c. 20 art 11), the contract must contain a provision as to the payer of the transportation and the contracts provide that the artist shall pay it excepting only in the event the place of performance is changed, when the manager is required to defray the extra cost. The parties have made the paramount consideration of the contract, the personal service of the performer. The form of the contract authorizes the reduction of 5 per cent. from salary for the services of the booking agent.

The testimony bristles with references to the salary, services, and artists, who are employed under the contracting arrangements, and it may be fairly said that what is contracted for is an entertainment for hire upon the stage of the theater with the actors or artists as entertainers. It makes little difference whether they are high-class artists or participants in small acts. Another noticeable feature of the contracts made with artists or actors is that they refer to the service as "personal." Illness excuses and death terminates the agreement. They are contracts for personal services. Shubert v. Rath (C. C. A.) 271 F. 827, 20 A. L. R. 846; Keith v. Kellermann (C. C.) 169 F. 196. Each act is booked to be performed on the stage of a theater or theaters referred to in the contract.

The defendants urge that the case of Federal Baseball Club v. National League, 259 U. S. 200, 42 S. Ct. 465, 66 L. Ed. 898, 26 A. L. R. 357, is controlling and decisive; the reason therefor being that their business is giving exhibitions or entertainments, which are purely state affairs, that it is the personal effort contracted for which is not related to the production, and therefore it is not a subject of commerce. Also it is argued that which, in its...