O'Neill v. General Film Co.

171 A.D. 854, 157 N.Y.S. 1028, 1916 N.Y. App. Div. LEXIS 5372
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 17, 1916
StatusPublished
Cited by16 cases

This text of 171 A.D. 854 (O'Neill v. General Film Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Neill v. General Film Co., 171 A.D. 854, 157 N.Y.S. 1028, 1916 N.Y. App. Div. LEXIS 5372 (N.Y. Ct. App. 1916).

Opinion

Laughlin, J.:

The plaintiff, claiming to own the literary rights as well as the performing rights in a dramatization of Alexander Dumas’ novel The Count of Monte Cristo,” by Charles Fechter, brought this suit in equity to enjoin the defendant from producing or exhibiting, or distributing for production and exhibition on the stage or in any theatre or place of amusement, any motion picture films containing in whole or in part any of the scenes, incidents, plot or story of said novel as so dramatized, or any simulated or colorable imitation or adaptation thereof.

Dumas’ novel was published in 1845. He wrote a dramatization thereof in French in 1848. There was a dramatization prior to 1870 in English known as the ‘ ‘ French-Lacy Dramatization.” Charles Fechter, a Frenchman, -wrote another English dramatization of the novel for Benjamin Webster, who was a celebrated actor and the manager of the Adelphi Theatre, London, Eng., and it was publicly performed at that theatre on or about the 19th of October, 1868, Webster playing the role of Noirtier, which was written expressly for him, and Fechter the role of Edmond Dantes, who becomes the Count of Monte Cristo. As a condition precedent to the issuance of a license to present the play, under the English statute regulating theatres (6 & 7 Viet. chap. 68, § 12), a printed copy of this dramatization by Fechter was filed with the Lord Chamberlain of Her Majesty’s Household on the 17th day of October, 1868, and such a license was duly issued. The London newspapers, including the Daily Telegraph, gave extended accounts of the play as thus presented. According to the testimony of the plaintiff, Fechter thereafter came to the United States and appeared in the presentation of the play in the same role in various theatres in this country from 1873 until his death in [857]*8571879, and “ produced it from the manuscript in his possession.” The plaintiff also testified that in the year 1883 he was employed by John Stetson, who owned the Globe Theatre in Boston, Mass., to appear in the title role in the presentation of “Monte Cristo ” in New York city, and that in the month of June, 1885, he purchased from Stetson for the consideration of $2,000 all of the right, title and interest of the latter in the Fechter version of the Count of Monte Cristo, which Stetson claimed to have purchased from Arthur Cheney, and received from Stetson a bill of sale thereof and the typewritten manuscript, the title page of which is as follows:

“Monte Cristo
Arranged and Adapted Expressly for Arthur Cheney, Esq.;
Proprietor and Manager of the GLOBE THEATRE, BOSTON, MASS.
-by-
CHARLES FECHTER, ESQUIRE Under the Stage Direction of Arthur Le Clercy.
First Representation -at-
GLOBE THEATRE, BOSTON, MASS.
-on-
Monday Evening, Sept. 12th, 1870
-and-
Now the Property of MR. JOHN STETSON
-of the-
FIFTH AVENUE THEATRE, NEW YORE -and the-
GLOBE THEATRE, BOSTON, MASS.
Who Has the Sole and Exclusive Right of Production for the UNITED STATES AND CANADAS”

It appears by a comparison of this manuscript with the printed play filed with the Lord Chamberlain in London as [858]*858aforesaid, that the play as originally written by Fechter had been abridged by the elimination of many parts for the purpose of shortening the production, but otherwise they are the same. The recitals on the title page of the plaintiff’s manuscript of the play constitute the only evidence of the authorship thereof. The plaintiff testified that Fechter appeared in the play at the Globe Theatre in Boston, of which Arthur Cheney was one of the proprietors, and that Cheney died prior to 1883.

.The trial-court found, in effect, that the defendant used the Fechter version in making a motion picture film for the production of Monte Cristo as a motion picture play. The defendant excepted to such finding, and although we are not expressly asked to reverse it, counsel for appellant contends that no infringement was shown. The defendant is a corporation organized under the laws of Maine, and is engaged in the business of renting and distributing films for motion pictures. It employed the Selig Polyscope Company, an Illinois corporation, to make a motion picture film for the presentation of the motion picture play, and that company engaged actors and actresses whose playing was photographed by it. Between the 14th day of October, 1912, and the 13th day of January, 1913, the defendant distributed among motion picture theatres forty or more motion picture films from each of which the play was publicly presented. The usual practice of the company in making a motion picture film of a play or novel was to prepare a scenario which is used by the director who has charge of preparing and presenting the scenes of which motion pictures are taken. The motion picture photoplay prepared for defendant consisted of three reels, with thirty pictures in the first, thirty-nine in the second and twenty-seven in the third. No evidence was offered on the part of the defendant with respect to the source from which the scenario used in making the motion picture was taken, and no explanation with respect thereto was offered. The trial court by consent witnessed a presentation of the motion picture photoplay as presented by defendant, and was thereby aided in determining the question of fact; but without the evidence thus taken by viewing the picture it is quite clear from the record that the motion picture photoplay presented by the defendant was prepared to a [859]*859large extent from the Fechter dramatization, for many scenes and incidents are depicted therein which are either not found in the novel or in any other dramatization thereof, or in the order as presented by the Fechter dramatization and by defendant’s films. In the novel Noirtier is the father of Ville-fort, and is an unimportant character in the story, and this is followed in the other dramatizations; but Fechter changed the character of Noirtier, making him the half-brother of Ville-fort and one of the leading characters in his dramatization, and this change is substantially followed in defendant’s films. In the novel and the other dramatizations Albert is the son of Mercedes and Fernand. Fechter changed this character, making him the son of Mercedes and Dantes, and makes use of this change in a dramatic way near the end of his dramatization, where he has Mercedes prevent a duel between Albert and Dantes by informing the latter that Albert is his son, and this incident is found in defendant’s films. The scene at the end of the Fechter dramatization, in which Dantes kills his enemy, Danglars, in a duel, is original with Fechter, and is reproduced in the last picture in defendant’s films. In the novel and the other dramatizations, after Dantes has substituted himself for the dead body«of the abbeinthe burial sack, and has been thrown into the sea from the Chateau D’lf, he extricates himself from the sack and swims to and climbs upon a rock or an island and thanksiGod for his deliverance.

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Bluebook (online)
171 A.D. 854, 157 N.Y.S. 1028, 1916 N.Y. App. Div. LEXIS 5372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneill-v-general-film-co-nyappdiv-1916.