The exhibition of the films consists of rapidly passing one of the prints thereof through an apparatus projecting light rays through such moving print, by which there is cast upon a screen or other surface by such projected rays enlarged reproductions of the images depicted upon such print, the rapidity and continuity of the change of the projected reproductions of the images creating for the beholder a dramatic performance or representation in pantomime upon the screen "depicting and portraying a plot or sequence of incidents, situations, or events, with appropriate characters, in various settings or acting forms, and which are wholly or partially fictional or imaginary in nature." (Paragraph 5.) From these negatives the plaintiff produced on similar material copies known in the industry as positive prints.
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It is averred that each of the motion picture photoplay films listed in the bill of complaint was produced by the plaintiff, its servants and agents, by recording in accordance with a written or oral continuity or scenario, by processes analogous to photography, upon a sensitized strip of translucent celluloid known as a negative, a series of images depicting upon the negative in various degrees of light and shade pantomimic actions of human or other characters arranged in various settings and acting forms. The amended bill of complaint alleges in substance, and the motion to dismiss, which is equivalent to a demurrer, admits, that the plaintiff is the original author of original unpublished motion picture play films, for each of which copyrights were secured by publication and the requisite deposit in the Copyright Office at Washington, whereupon the Register of Copyrights issued to the plaintiff certificates of copyright registration. Accordingly, where reference is made to the plaintiff or to the bill of complaint, it will be understood that reference is made to all three plaintiffs and to both amended bills of complaint, unless the contrary appears. While in one case the plaintiff Educational Film Exchanges, Inc., is the copyright proprietor, and the New York Exchange for Educational Films, Inc., its exclusively licensed distributor, and in the other case Metro-Goldwyn-Mayer Distributing Corporation is both the copyright proprietor and the distributor, the bills of complaint are for practical purposes identical. The grounds of each motion are the same, and will be stated in detail later.
In each of the above-entitled cases, in which the plaintiff seeks statutory damages for copyright infringement and an injunction, the defendants have filed a motion to dismiss the amended bill of complaint.
Coughlin, of Boston, Mass., for defendants.
*67 Hill, Barlow & Homans, of Boston, Mass., for plaintiffs. 66 (1933) METRO-GOLDWYN-MAYER DISTRIBUTING CORPORATIONĭistrict Court, D.
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