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Commercial Warfare and the Spanish-American War: 1897–1898 - Legal Battles

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W ith the onset of the Spanish-American War the motion-picture industry discovered a new role and exploited it, gaining in confidence and size as a result. The cinema’s capacity as a visual newspaper was extended as exhibitors unspooled scene after scene related to the struggle. Even more impressively, however, motion-picture showmen evoked powerful patriotic sentiments in their audiences, revealing the new medium’s ideological and propagandistic force in the post-novelty era. Across the country, exhibitors found ways to tell the story of the war with slides and motion pictures. While special evening-length productions, like those discussed in the previous chapter, expanded the boundaries of cinema practice, they operated at the periphery of the small and vulnerable industry. It was the ongoing production of a few firms that provided the commercial foundation for the American industry, and it was the war that gave this sector new life.

The established companies generally ran into difficulties at the end of the 1896–1897 novelty season, as moving pictures showed signs of fading, at least when exhibitors did not appeal to specific audiences with the passion play or THE CORBETT FITZSIMMONS FIGHT . The small town of Owego, New York, was not unusual: while projected motion pictures drew crowded houses when first shown in March 1897, interest faded with familiarity. Two months later, another showman booked films for three nights at the local opera house. “Although it was a good exhibition, there was less than half a house the first night,” reported the Phonoscope. “The second night the attendance was not sufficient to pay for the gas and subsequent exhibitions were ‘declared off.’” 1 Although the number of exhibitions in the nation’s opera houses increased slightly during the fall of 1897, the vast majority (approximately 85 percent) were given by the Veriscope Company. The number of independent exhibitors showing regular 35-mm productions in these venues had declined precipitously.

Contraction was palpable in the large cities. While Boston newspapers had advertised as many as seven concurrent motion-picture exhibitions in May 1897 (including two storefronts), by fall this number never exceeded four and for many weeks fell to one (a biograph at Keith’s). In New York City, the number fluctuated between five and one (the Eden Musee) during the fall and early winter. In Philadelphia and Chicago weeks went by without films being shown in commercial theaters. Adversity battered many small-time exhibitors, encouraging them to look elsewhere for profits and employment.

Nonetheless, the industry bounced back in early 1898 as events leading up to the Spanish-American War revived interest in moving pictures. Indeed, warfare not only provided American producers with their key subject matter but served as an apt metaphor for commercial competition within the industry itself. Both conflicts involved issues of markets and dominance of their respective realms. Within the film world, Edison used his patents and the legal system as weapons to vanquish rival producers. Yet ironically, the Spanish-American War created such a demand for films that other producers soon appeared. Throughout it all, the major companies—Biograph and Edison—were locked in a multilevel struggle.

Legal Battles

For most producers, competition among rival firms was a reality of commercial life. For Thomas Edison, once the world’s sole producer of motion pictures, competition often seemed the work of upstarts who were pirating his invention. As he and other inventors had done in the past, he sought recourse through the courts. Indeed, in the early motion-picture industry, commercial warfare involved a crucial legal dimension. Thomas Edison, Thomas Armat, and Woodville Latham generally sought to have their patents recognized in the broadest possible terms so they could use them to control key parts of the industry. Since the Lathams’ eidoloscope and Armat’s vitascope enterprises were commercial failures, their principal recourse was through the courts. Biograph, in contrast, sought not only to have its own patents recognized but to invalidate or restrict those patents that threatened to curtail important parts of its business; only the company’s mutoscope was safe from prior patent claims. Edison, however, was in a unique position because he headed a viable motion-picture company, the Edison Manufacturing Company, and had strong patent claims as well. Moreover, he could afford the legal costs better than most, while his mythic position in American culture gave him a psychological edge in these confrontations.

As mentioned in chapter 2, Edison’s patent applications encountered difficulties in the U.S. Patent Office. All claims for application No. 403,534, which covered his method of taking and showing pictures, were rejected, first on 2 January 1892 and again on 15 October 1895. Waiting until 18 April 1896, the last day he could appeal and less than a week before the vitascope’s debut at Koster & Bial’s, the inventor’s lawyers appealed and offered a new set of specifications. These were accepted on 28 December and created a patent-interference case, Casier et al. v. Edison , which was decided in Edison’s favor on 26 March 1897. Shortly after the interference was dissolved, Biograph’s Harry Marvin petitioned the commissioner of patents seeking authorization “to take depositions of witnesses to prove that the apparatus described and claimed in the application of Thomas A. Edison, filed August 24, 1891, Serial No. 403,534, was in use for more than two years prior to the date of making any claim for said apparatus in this application.” Marvin maintained that the new specifications were for an entirely different invention from the one Edison had originally submitted. In his ruling of 31 July 1897, however, Commissioner Benjamin Butterworth threw out the petition on a technicality. Edison’s patent for a motion-picture camera, No. 589,168, was issued a month later, on 31 August. Marvin later insisted that fraud was involved. 15

With a broad patent, Edison’s lawyers prepared to bring suit against the inventor’s commercial rivals on both the new patent, No. 589,168, and kinetoscope patent No. 493,426, granted 14 March 1893. On 7 December 1897 Edison filed two suits against Charles H. Webster and Edmund Kuhn individually and as members of the International Film Company. On that same day, he also brought suit against Maguire & Baucus Limited, the principal selling agent for International and Lumière films and the bioscope projector. The following month he sued Sigmund Lubin in the Eastern District of Pennsylvania and Edward H. Amet in the Northern District of Illinois. The International Film Company hesitated, uncertain whether it should fight the case or retire from the field. In February, after suffering a serious fire, Webster and Kuhn decided not to contest the suit and agreed to close their film plant. Deterred by the enormous expense involved in litigation, they chose “to rest on their oars (with two years’ handsome profit) and let the larger fish foot the bill of litigation.” Maguire & Baucus also declined to contest the suits and arranged with Edison to sell Lumière films under special license. They stopped selling the Urban bioscope in the United States and concentrated most of their energies on business opportunities in England. Lubin and Amet, however, contested the suits. Because Edison lawyers were not eager to pursue cases outside the New York area, these two cases were not brought to a hearing. 16

Edison brought further actions in the Southern District of New York instead. The Eden Musee and its president, Richard Hollaman, producer of T HE P ASSION P LAY OF O BERAMMERGAU , were served with a warrant on 8 February; the makers of the rival H ORITZ P ASSION P LAY were sued a short time later. Rather than contest the suit, Richard Hollaman became an Edison licensee, and prints of T HE P ASSION P LAY OF O BERAMMERGAU were sold through the newly licensed F. Z. Maguire and Company. When Klaw & Erlanger hesitated in settling the Edison suit, the inventor announced his intention to prosecute anyone showing an “unauthorized version” of the passion play and backed it up by suing Augustin C. Daly, whose New York theater was showing the Horitz films. The latter case was quickly discontinued after Klaw, Erlanger, and Freeman came to a licensing agreement with Edison. This involved the outright sale of film prints, with Edison receiving a 7¢-per-foot royalty or $168 per complete 2,400-foot set for the first four sets. For subsequent sets the Edison Company would receive 16¢ per foot or $384 per set, though it was also responsible for manufacturing the films. 17 Klaw & Erlanger thus encountered heavy additional expenses on top of the royalties already owed the Horitz performers. Outright sales, moreover, undermined a policy of retaining exclusive exhibition rights.

Edison also sued Walter S. Isaacs, manufacturer of the Urban bioscope as well as his own cinematograph projector. Like others, Isaacs was unwilling to challenge the famous inventor. When the Veriscope Company was sued and proved ready to defend its interests, Edison lawyers found it a difficult target, since its films of the Corbett-Fitzsimmons fight were made prior to the issuance of Edison’s patent. 18

After intimidating most New York-based 35-mm film producers and equipment manufacturers, Edison sued the American Mutoscope Company and Benjamin F. Keith on 13 May 1898. 19 Biograph was not only a large, profitable concern but one that used its own unique system of motion-picture technology, and the company undertook a spirited defense: even a preliminary ruling would be more than three years away. Nonetheless, Edison had greatly strengthened his company’s commercial position. Some competitors had gone out of business, while others were operating under an Edison license.

Legal complexities also occurred with projection patents. Once Patent Interference No. 18,032, Jenkins v. and Armat , had been dismissed on 24 February 1897, and their phantoscope patent, No. 586,953, had been granted on 20 July 1897, Armat and T. Cushing Daniel brought suit against the American Mutoscope Company and Benjamin Keith. Yet this case was discontinued, as Herman Casler—with the backing of the American Mutoscope Company—challenged the patent’s validity in two other patent-interference cases. In Casier v. Armat , Patent Interference No. 18.460, Casier successfully argued that certain fundamental aspects of the Jenkins-Armat patents had been anticipated by Étienne-Jules Marey, who had intended to use his camera as a projector. Projection of motion-picture film was not something Jenkins and Armat could claim to have invented per se. 20 Patent Interference No. 18,461, Edward H. Amet, Woodville Latham, and Herman Casier v. Thomas Armat , was undertaken as Casler and Latham unsuccessfully—and from different perspectives—tried to have the Jenkins-Armat patent thrown out. Latham, of course, wanted his claim for prior projection to be accepted, while Casler continued to seek rulings that would limit the patent’s commercial impact and value. Biograph was confident of its ability to prosper in an American market where patents did not play an important role. In contrast, Edison and Armat each wanted to use their respective patents to regain a dominant position in the industry. The courts would not rule on the merits of these cases until the beginning of the new century.

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