(after stating the facts as above). At the outset, it is desirable to clear away immaterial or untenable' contentions.
First. The relations of the parties must be determined by the written agreements between them, and not by those allegations of the complaint which plead conclusions of law. Thus the complaint alleges inter alia:
“That in and by said agreement the defendant Bex Beach gave to the said Charles Klein the sole and exclusive right to dramatize the book”
—while in the agreement are the added words “for presentation on the stage.” Therefore what the right was must be determined by the •contract, and not-by the interpretation of the pleader.
[1,2] Second. The amendment of the Copyright Eaw, effective on August 24, 1912, is irrelevant to the controversy. That amendment, so far as here concerned, merely provided, among other things, for the copyrighting of motion picture plays. The contract here was dated November 17, 1911, and the contractual relations between Beach and Klein were fixed as of that date. The subsequent agreement (with notice, according to the complaint) between Beach and the Selig Company gains nothing, because now, under the statute, the motion picture rights may be separately dealt with and separately copyrighted.
We thus come to the fundamental questions in the case. It may be assumed that in November, 1911, the time of the contract, the motion *245picture play was well known. This knowledge is judicially obtained from the files of the court and from reported decisions, notably the Kalem Case, 222 U. S. 55, 32 Sup. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285; Id., 169 Fed. 61, 94 C. C. A. 429.
With the knowledge that a play might be produced on the stage with the spoken word or exhibited on the screen, Authors’ Producing Company (the manager) was looking for a new play. Beach owned the novel, “The Ne’er Do Well.” Klein was a playwright of recognized ability and experience. The manager wished Klein to make a play out of the novel and to obtain the exclusive right to produce, perform, and represent that play on the stage in the United States and elsewhere.
Throughout, it is apparent that the manager was to produce and present the play on what we understand as the stage as distinguished from the screen. Vide “stock theaters;” “small touring companies;” Klein shall have full control of “the stage” and “entire choice of scene models and scenery and the selection of all costumes * * * for the production for the first company”; the manager cannot make changes “in the text” without Klein’s consent; certain arrangements with the play brokers as to compensation, if the play is produced “in stock or by small touring companies under other management.”
The manager, therefore, being concerned only with a play with speaking actors, the parties whereased and agreed as follows:
“Whereas, the manager wishes to engage the services of the author to dramatize the said book for presentation on the stage: * * *
“first. The novelist hereby grants to the author the sole and exclusive right to dramatize the said hook for presentation on the stage. * * *
"Second. The author and the novelist hereby agree to grant and * * * do grant to the manager * * ® the sole and exclusive license and liberty to produce, perform, and represent the said play or dramatic composition on iho stage. * * * “
Not a word was written about motion pictures. It is argued that, if it was intended to exclude motion pictures, such exclusion would have been expressed. It may be urged with equal force that, if it was intended to include them, the inclusion should have been definitely stated. Klein, as the complaint points out, had achieved great fame as a dramatic author, and the product of his talent applied to the story of the novel was what Beach, Klein, and the manager proposed to present on the stage; but it does not follow that the contracting parties intended that there should be no grant by Beach of the motion picture rights to any one and that only stage performances with speaking actors could be given. By virtue of paragraph twelfth the manager’s rights “reverted” to Beach and Klein, and under paragraph fifteenth all manuscripts and parts of the play, with all additions and alterations thereafter, were to “definitely belong” to Beach and Klein. Thus, at the commencement of this suit, Beach and Klein’s estate were the co-owners, or, as some cases say, the tenants in common, of the Klein play, freed from any license.
It is urged that Klein became the sole owner of the Klein dramatization, to do with it as he pleased, obligated only to account to Beach for profits. That argument flies in the face of the intent of the agree*246ment when re.ad as a whole. It thus becomes necessary to determine what the grant from Beach to Klein was.
The “exclusive right to dramatize” the novel “for presentation on the stage” merely meant that no one else was to be permitted to dramatize for the stage, but did not comprehend that Beach could not grant the right to another independently -to dramatize the novel for the screen. Of course, “stage” is a comprehensive term. College commencements, public meetings, motion picture exhibitions take place on the physical structure called “a stage”; but “presentation on the stage” in this contract surely means the spoken play.
It is suggested that to hold that Beach retained the motion picture rights would violate the intent of the parties, because the motion picture would destroy or impair the commercial value of Klein’s dramatic version, and that Klein and the others could not have contemplated such a result. I am far from satisfied that every motion picture interferes with the box office receipts from the same play on the dramatic or the operatic stage. I imagine that the motion picture “Carmen” will not outlast the living opera.
Then it is quite understandable that a novel may be presented to a theater audience in a way quite different from that shown to a motion picture audience and for reasons which are obvious to those who attend both. Arnold Bennett’s “Buried Alive,” when transformed into “The Great Adventure,” was neither more nor less than a character study of Farll and Alice Challice. No one could satisfactorily portray in a picture the study which Ainley or Harding acted on the stage; but “Buried Alive” on the screen would probably show the scene in Westminster Abbey, omitted by the playwright.
And so it may well be, as I think was the case here, that the right to dramatize a novel for presentation on the stage does not necessarily carry with it all the motion picture rights. There is nothing in the reported cases to lead to any other conclusion.
In the Kalem Case, supra, a contract was not being construed, but the court was dealing with the question as to whether one without authority could appropriate the essential features of a copyrighted work and produce them in a motion picture, f The court held that such a production was dramatized within the meaning of the statute. No one now questions that the moving picture may show a dramatization, and in the case at bar the presentation on the screen is a dramatization ; but we are not dealing with definitions, but with the intent of the parties.
In Frohman v. Fitch, 164 App. Div. 232, 149 N. Y. Supp. 633, Fitch, who had agreed to write and deliver a play, had sold his original work to Frohman under a broad grant which clearly comprehended the ownership of Fitch’s work by Frohman for all purposes. The language there was:
“Whereas, the said party of the first part [Fitch] agrees to write and deliver a play on or before January 1, 1901; and
“Whereas, the said party of the second part [Frohman] desires the exclusive right to produce or to have produced the said play in the United States of America and in Canada:
“Now, therefore, * * * the said party of the first part agrees to sell, assign, and transfer, and hereby does sell, assign, and transfer to the said *247party of the second part the exclusive right to produce the said play in the United States of America and in Canada, for which sale, assignment and transfer the said party of the second part agrees to pay to the sáid party of the first part or his authorized agent, as follows. * * * ”
In Harper Brothers v. Klaw & Erlanger, 232 Fed. 609, decided by Judge Hough on January 6, 1916, the agreement was made at a time (1899) when motion picture plays were not in the contemplation of either party, and he held, on the facts in that case, therefore, that neither party could produce motion pictures. He was considering a contract made at a time when conditions were radically different from those which existed in 1911; but, in so far as he construed the language used in that contract (which, in substance, resembles that in the case at bar), he held that the grant did not pass the motion picture rights.
[3] This case, however, differs from Harper v. Klaw in at least one respect which becomes important. Here both Beach and Klein became the owners of Klein’s drama, and each could then do with it what he pleased, with the duty of accounting over. Beach could license Klein’s dramatic version for the screen, and Klein could do the same thing; and, of course, they each could license others to produce the Klein play on the stage. But in all these instances one would be obliged to account to the other. Millson v. Lawrence, 148 App. Div. 678, 133 N. Y. Supp. 293; Lalance & Grosjean Mfg. Co. v. Nat. Enameling & Stamping Co. (C. C.) 108 Fed. 77.
As Beach, therefore, could license another either to produce an independent dramatization for the motion pictures, or to produce the Klein version for the motion pictures, the defendant Selig Company was at liberty to contract with Beach, and is not concerned with the controversy between Beach and the Klein estate. It follows, therefore, that neither Beach nor the Selig Company can be enjoined as prayed for.
But there is enough left in the complaint to set forth a cause of action for an accounting (see paragraphs XXI and XXII) for profits already derived. If it appeared as a fact that the Selig production is an independent dramatization, then, in view of what has been pointed out, the plaintiffs would not have a cause of action; but it is alleged (paragraph X) that Klein "originated, devised, created” a play based upon the novel, and further (paragraph XVI) that the “said film [made by Selig Company] * * * is identical with the said novel * * * and with the said play,. * * * except that the same has been elaborated to make it suitable for motion picture exhibitions.”
Of course, with a common source, two dramatizations must have much in common; but it is alleged that Klein’s work is “of great literary merit, woven with keen dramatic skill and artistic finish.” And it is well known that skill is required to select from the mass of material in a novel, so much as may be necessary and then properly arrange the acts, scenes, sequence, climax, and the rest.
Whether, therefore, Klein’s dramatisation has been used by the Selig Company, or an independent motion picture has been devised from the novel, is a question of fact, which can he determined only after a *248trial. As it is alleged that Klein’s version has been used, the complaint states a cause of action against Beach for an accounting.
Por the reasons stated, the motion to dismiss made on behalf of-Beach must be denied, and that made on behalf of Selig Company must be granted. Settle on two days’ notice.