Pioneers of Movie Piracy and the Expansion of Copyright Law

Chicks_comparison
Still frame from Chicks to Order vs. still frame from Chicks Made to Order

In the early days of cinema, no one knew if it was possible to copyright a movie. This sounds strange to us today, but at the time copyright law only covered written works and photographs. Is a movie like a written novel? Is it more like a photograph? Or is it something completely new?

One of the earliest cases shaping how copyright law was applied to motion pictures was filed in 1903 when inventor Thomas Edison sued Philadelphia film producer Siegmund Lubin for copyright infringement. At the time, duping other companies’ films and selling them was an integral part of the motion picture business. Lubin did it. The Biograph Company did it. Even Edison’s film production company did it.

However, in an attempt to protect its own content from piracy, the Edison Manufacturing Company submitted copies of its films to the United States Copyright Office to be registered for copyright protection. Since copyright law didn’t yet cover motion pictures, Edison followed the registration protocol for photographs, printing every frame of a film onto a long strip of paper. In 1902, Edison sued Lubin in the United States Circuit Court for the Eastern District of Pennsylvania for copyright infringement over the duping of an Edison-exclusive film of Kaiser Wilhelm’s yacht. This court sided with Lubin in January 1903, refusing to apply existing copyright law to motion pictures. Edison appealed and three months later the Third Circuit Court of Appeals ruled that motion picture films could be registered for copyright following Edison’s model.

Lubin Manufacturing Company Ad from the New York Clipper, August 1, 1903.
Lubin Manufacturing Company ad from the New York Clipper, August 1, 1903.

The ruling did little, however, to change how motion picture producers, including Lubin, operated. In August 1903, Lubin advertised a film titled How to Shut Up a Quarrelsome Wife, which was actually just a dupe of Biograph’s 1902 film Shut Up! Biograph sued and submitted the following reels of film, now held at the National Archives, as evidence of copyright infringement.

Comparison between Biograph’s Shut Up! (item 21-B-5) and Lubin’s How to Shut Up a Quarrelsome Wife (item 21-B-6)

You can see that the timing and framing of the reels is slightly off. Lubin would have created his master negative off of a used projection print from which some frames had been removed (likely due to damage). Biograph’s submission to the court appears to be one of its own projection prints. Even though the films don’t play out at the same pace, if you look closely you can tell that the two images are identical and small bits of missing footage create the differences in action.

Comparison between Biograph’s Chicks to Order (item 21-B-4, released as Strictly Fresh Eggs) and Lubin’s Chicks Made to Order (item 21-B-3)

Biograph filed its case against Lubin in the same court used by Edison earlier in the year so judges were bound to follow the Edison precedent. Records for both the Biograph and Edison court cases are held at the National Archives at Philadelphia. The records for the Third Circuit Court of Appeals are held at the National Archives at Kansas City.

It took almost another decade after Edison’s court victory over Lubin for Congress to address the copyright status of motion picture films. The Townsend Amendment to the Copyright Act of 1909 went into effect on August 14, 1912. From that point, producers were allowed to submit reels of film to the Copyright Office to register for copyright protection of their content. Copyright registration rules have changed over the years, allowing submissions of digital formats in lieu of celluloid, but the recognition of motion pictures as a medium eligible for protection is a permanent part of U.S. copyright law.

My description of Edison’s case against Lubin relies on an excellent article by Peter Decherney, titled “Copyright Dupes: Piracy and New Media in Edison v. Lubin (1903),” from Film History 19 (2007), pages 109-124.

Court Proceedings Referenced:

Edison v. Lubin 199 F. 993 (E.D. Pa. 1903)

Edison v. Lubin 122 F. 240 (3rd Cir. 1903)

American Mutoscope and Biograph Company v. Sigmund Lubin, 26, 27, October Sessions, 1903, Circuit Court, E. Pa.

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