Saturday, February 27, 2010

Copyright Infringement and Motion Pictures: 1907 Ben-Hur

Writers, producers, and attorneys all over Hollywood and New York should wake up every day thanking Lew Wallace. As many of you know, after Lew Wallace wrote Ben-Hur, he had it published by Harper and Brothers. Late in his life Lew Wallace and Harper and Brothers reached agreement with Abraham Erlanger to produce a spectacular stage version of the book. It must have been amazing to see two teams of horses running at full speed on a turntable on the Broadway stage. This production was wildly successful and ran for 20 some years.

In 1907, two years after Wallace’s death, Kalem Picture Company, a movie production company created their version of the book. At just 15 minutes long, this movie only highlighted brief scenes from the book. The most exciting scene was, again, the chariot race. Kalem filmed the race on the Sheepshead Bay (New York) Racetrack with firemen from the Brooklyn Fire Department racing their fire horses around the track in front of scenery left over from a summer exhibition.

Kalem, following common movie production practices of the day, did not acquire any rights to the story. After just one showing of the movie, Lew Wallace’s heir, Harper and Brothers, and Erlanger Theaters took legal action. They shut the movie down and pursued litigation that eventually landed in the Supreme Court. While Kalem argued that the movie provided a form of increased marketing, Wallace’s heirs and business partners argued that it was not simply about the money (it never is), it was that the motion-picture version was so poorly done that it cheapened and degraded the original. In a decision written by Oliver Wendell Holmes the Supreme Court ruled in favor of Wallace’s heirs and business partners expressing the opinion that the movie was an infringement of the Ben-Hur copyright and by extension, of the author’s intellectual property rights. This ruling has been used for over 100 years to protect the intellectual and creative property rights of artists in all mediums from Mickey Mouse watches right down to uploading music on iPods.

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