Jesse L. Lasky Feature Play Co., Inc. v. Celebrated Players' Film Co.

• Decision Date: 19 May 1914
• Citation: 214 F. 861
• Parties: JESSE L. LASKY FEATURE PLAY CO., Inc., v. CELEBRATED PLAYERS FILM CO.
• Court: U.S. District Court — Southern District of New York

214 F. 861

JESSE L. LASKY FEATURE PLAY CO., Inc., v. CELEBRATED PLAYERS FILM CO.

United States District Court, S.D. New York.

May 19, 1914

Wise &amp Lichtenstein, of New York City (Arthur S. Friend, of New York City, of counsel), for plaintiff.

Nathan Burkan, of New York City, for defendant.

MAYER District Judge.

Plaintiff is a manufacturer, importer, and dealer in films of moving pictures, including motion pictures founded on well-known dramas and novels.

On January 23, 1914, plaintiff entered into a written agreement with the defendant wherein it was recited that plaintiff planned to produce, import, and deal in a series for the year beginning March 1, 1914, consisting of ten films more or less, which films would be known as 'The 1914 Special Service of the Jesse L. Lasky Play Co., Inc.,' and whereby it was agreed that plaintiff let or licensed to defendant the sole and exclusive privilege of exhibiting the films of this 1914 Service in the states of Illinois Wisconsin, and Indiana. The Service was to include 'The Squaw Man' with Dustin Farnum and 'Brewster's Millions' with Edward Abeles in the respective leading roles. Defendant agreed to pay $5,700 for each production, in cash, on the delivery by plaintiff to defendant in the city of Chicago of three sets of positive prints of each of the film productions. It was further provided:

'That if any of said films are not passed by such municipal authorities because of objectionable scene or scenes, and such scene or scenes may be eliminated or modified without materially injuring said production, then the lessee shall be required to accept the same. If notwithstanding, the refusal of the municipal authorities of the city of Chicago to license the exhibition of any such production the lessee elects, nevertheless, to receive and accept the same, than it shall pay for such production the amount herein above agreed in such manner as though the production of such film had been licensed by such municipal authority. Provided, further, that if said municipal authority shall refuse to permit the exhibition of such production in the city of Chicago and the lessee refuses to accept the same, then as to such production so rejected by the municipal authority the lessor shall have the right to sell the said production for exhibition in said granted territory to any other person that it may elect, without affecting, however, the respective rights and obligations of the parties hereto in reference to any other production covered by this contract.'

The first photo play film duly delivered to defendant was 'the Squaw Man,' and the purchase price of $5,700 was duly paid therefor. The difference between the parties arose at the time of the receipt at Chicago of the second of the series, which was 'Brewster's Millions.' Three sets of positive prints of this photo play each containing five reels were received at Chicago on April 13, 1914, by Messrs. Hirsch & Schwartz, the Chicago attorneys of plaintiff. On the following day these attorneys took one of the prints to the office of Maj. Funkhouser, second deputy superintendent of police of the city of Chicago, who is the official who has charge and supervision of the censoring of motion pictures and the issuance of permits allowing their exhibition. The business of exhibiting motion pictures in the city of Chicago is very extensive, often requiring the inspection of many reels each day, so that it is impossible for any single individual to inspect all of such proposed pictures. The result is that the mayor of Chicago, pursuant to authority duly conferred upon him, has appointed assistants to the general superintendent of police who are colloquially known as 'censors.' The censors witness the screen examination of the film productions and submit to Maj. Funkhouser their report with their recommendations. This board of censors examined the positive prints of 'Brewster's Millions' in executive session on April 14, 1914, and one of its members handed to the Chicago attorneys a memorandum of so-called 'cut-outs' upon the making of which the board would recommend the issuance of a permit.

By 'cut-outs' is meant that part or parts of the play required to be eliminated before its production would be permitted in the city of Chicago.

That afternoon Mr. Hirsch got into telephone communication with Mr. Hartmann, also a Chicago attorney and an officer of the defendant. Mr. Hartmann told Mr. Hirsch that the defendant desired to 'run off' (meaning thereby to examine) the pictures and would do so on the following afternoon. The next afternoon (April 15th), Mr. Hirsch delivered to some one in charge of the office of the defendant one set of the 'Brewster's Millions' films together with a memorandum of the so-called 'cut-out' requirements. These 'cut-outs' were of certain scenes in three of the reels and involved four incidents.

On April 17th, Messrs. Hirsch & Schwartz received a telegram from their client, the plaintiff, inquiring as to delay of acceptance. To this the Chicago attorneys replied that defendant was trying to have the 'cut-outs' diminished and desired a 'couple' of days. The same day plaintiff telegraphed Messrs. Hirsch & Schwartz to see that defendant accepted the reels the following day at the latest. This was succeeded on April 18th by a telegram from plaintiff to their Chicago attorneys that defendant must accept and pay for the picture that day or that the Chicago attorneys must return the picture to New York immediately.

The affidavits are convincing that defendant was anxious to have this play of 'Brewster's Millions,' and did everything that fair dealing business men would be expected to do, and made every reasonable effort to urge that the play be permitted without the eliminations required by the Chicago officials. Maj. Funkhouser stated (in his affidavit verified April 29, 1914) that on April 16, 1914, Mr. Hartmann representing defendant, discussed with him the subject-matter of the picture and objected to the 'cut-outs,' and that thereupon he (Funkhouser) did not indicate or advise Hartmann that the recommendations of the censors in reference to the 'cut-outs' were a final determination, but, on the contrary, that he then and there stated to...