Kalem Company v. Harper Brothers

• Decision Date: 13 November 1911
• Docket Number: No. 26,26
• Citation: 222 U.S. 55,56 L.Ed. 92,32 S.Ct. 20
• Parties: KALEM COMPANY, Appt., v. HARPER BROTHERS, Marc Klaw, Abraham Erlanger, and Henry L. Wallace
• Court: U.S. Supreme Court

222 U.S. 55

32 S.Ct. 20

56 L.Ed. 92

KALEM COMPANY, Appt.,

v HARPER BROTHERS, Marc Klaw, Abraham Erlanger, and Henry L. Wallace.

No. 26.

Argued October 31 and November 1, 1911.

Decided November 13, 1911.

Messrs. John W. Griggs and Drury W. Cooper for appellant.

[Argument of Counsel from pages 55-60 intentionally omitted] Messrs. David Gerber and John Larkin for appellees.

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.' 94 C. C. A. 429, 169 Fed. 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 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, chap. 565, 26 Stat. at L. 1106, U. S. Comp. Stat. 1901, p. 3406, authors have the exclusive right to dramatize any of their works. So, if the exhibition was or was founded on a dramatizing of Ben Hur, this copyright was infringed. We are of opinion that Ben Hur was dramatized by what was done. Whether we consider the purpose of this clause of the statute, or the etymological history and present usages of language, drama may be achieved by action as well as by speech. Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word. It would be impossible to deny the title of drama to pantomime as played by masters of the art. Daly v. Palmer, 6 Blatchf. 256, 264, Fed. Cas. No. 3,552. But if a pantomime of Ben Hur would be a dramatizing of Ben Hur, it would be none the less so that it was exhibited to the audience by reflection from a glass, and not by direct vision of the figures, as sometimes has been done in order to produce ghostly or inexplicable effects. The essence of the matter in the case last supposed is not the mechanism employed, but that we see the event or story lived. The moving pictures are only less vivid than reflections from a mirror. With the former as with the latter our visual impression—what we see—is caused by the real pan- tomime of real men through the medium of natural forces,...