Laws and cases

It’s high time we had a new addition to the Bioscope Library. Fresh in, and just being stamped and having its classification number assigned is The Law of the Motion Picture Industry (1916), by Gustavus A. Rogers. This is the text of a lecture given by a New York lawyer to the College of the City of New York on 28 November 1916. The legal side of early film may not seem to have that much appeal, but it is a crucial subject to grasp. Laws existing and laws which had to be devised for the purpose not only governed but helped define the new medium.

Gustavus A. Rogers proves to be a helpful guide, with a clear-sighted view of his subject and much case law that he is able to cite as milestones in the development of cinema as a social entity. There is a particularly helpful section on patent law (“Ask the average person who is the inventor of motion pictures and the answer will be, Thomas A. Edison. Mr. Edison himself would probably agree that he is the inventor, but the courts have held otherwise”.) and the formation of the Motion Picture Patents Company, which sought to restrict trade to those businesses which recognised Edison’s film patents. Out of this history Rogers draws some fascinating and helpful definitions of what motion pictures actually were (in law), what the technology was there to achieve, and how a motion picture production was to be defined. He cites in the important case of the Kalem Company v Harper Brothers, which determined that the Kalem 1907 film Ben Hur infringed the copyright of the Lew Wallace book on which it was based. Rogers’ interest is in what the ruling meant for the definition of a motion picture in other legal proceedings. He says that the the case had not “definitely determined as to whether a photo-play is really ‘a commodity’ or whether as such it comes under the jurisdiction of the Federal Anti-Monopoly Law”. Rogers’ inference from this is interesting:

I am, however, of the opinion that whenever it will become important to effectually dispose of the question, that it will be found that there is no difference between the photo-play and the celluloid record which is used upon the phonograph, or the picture postal-card. For, after all, what is sent in commerce is a strip, or strips, of film, contained in rolls of approximately a thousand feet each. On these are still photographs that are commercially useful when put into a projecting machine and ground out to portray the story on the screen, in the same manner as the phonograph record is put upon the machine for the purpose of reproducing the musical sounds or matter contained on the record.

This short document (sixty pages) is therefore useful not just as a survey of the law’s engagement with motion pictures to 1916, but as a thoughtful disquistion on what a motion picture actually is. There is useful discussion of trade marks, copyright law, censorship (with comparisons of the state of things in America, Britain and France), Sunday legislation, and an overview of the laws regarding motion pictures in various European countries. It’s available from the Internet Archive in DjVu (1.6MB), PDF (5MB), b/w PDF (1.5MB) and TXT (122KB) formats.

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