Disruptions
The completion of Life of an American Fireman coincided with important changes within Edison's Kinetograph Department. On February 5, 1903, James White left for Europe to become Edison's new European sales manager.[1] White's new position was important for Edison's phonograph and film businesses, and William Gilmore was not sure whether he could handle the responsibility. As he wrote Thomas Edison from Europe shortly after White had taken the job:
It would seem to me that the proper way to take hold of things here is to have one good man to look after the business in the different countries as a whole the same as I do in America but the point is who is the man. I am not prepared to say that White is big enough to swing it. I hardly think he has the experience necessary. Then again I find that he lacks nerve, which to my mind is very essential. However, as we have given him the opportunity I suppose we must let him go for the present.[2]
Gilmore also felt that White required close supervision to curtail his more impulsive schemes.[3] White's charm and entrepreneurial spirit were better suited to a producer or salesman than a ledger-conscious manager.
White's position as head of the Kinetograph Department was filled by William H. Markgraf, another of Gilmore's brothers-in-law, who had been working elsewhere in the Edison Manufacturing Company. Although he had obtained his job through nepotism, the new department manager did not receive a percentage of film sales as had James White. Nevertheless, his $30 weekly salary was raised on January 1st to $40—twice Porter's. Markgraf acted as a middle-level executive—a member of the new middle class—whereas White had functioned as a quasi-independent entrepreneur under the umbrella of Edison's corporation. Markgraf's hiring introduced a differentiation in managerial function. The department head was no longer a film producer, salesman, cameraman, and film actor. He oversaw production activities, but did not participate directly in them. Yet this was not management as Frederick Taylor envisioned it. Markgraf lacked the expertise to challenge or even guide his staff's working methods. This left Porter more firmly in control of production, since he alone had the requisite knowledge and experience.
As the Kinetograph Department was preparing Life of an American Fireman for release, Edison suffered two judicial defeats that affected company sales of films and projecting kinetoscopes. Although both setbacks were eventually reversed on appeal, at the time they were highly disruptive, bringing into question the company's future within the industry. The first involved Thomas Armat, who, through the Animated Photo Projecting Company and its successor, the Armat Moving-Picture Company, had sued the American Mutoscope Company for infringement of his projection patents. He brought suit on the last day of 1898 and, after considerable delay, won a circuit court decision favoring his patent in October 1902.[4] Reluctant to have either the patent's scope or his ownership tested in a higher court, Armat came to an agreement with Biograph. Biograph agreed to recognize the patent if he "would not insist upon the payment of the license fees . . . until the Armat Company had secured a permanent injunction against the Edison Company."[5]
In November Armat sued the Edison Company. A preliminary injunction was filed on January 19th, prohibiting the company from selling projectors. Edison lawyers appealed for a stay, and the injunction was vacated a week later. The reprieve occurred primarily because Armat's control of the patent was in doubt
owing to his earlier conflicts with Jenkins.[6] Nonetheless, the Edison Company was threatened with substantial damages and a realignment of the American motion picture industry around Armat. Armat, still anxious to avoid further testing of his patents, renewed his suggestion for a combination involving Edison, Biograph, and the Armat Moving Picture Company. In a letter to Gilmore, he pressed his case, pointing out that "the Armat Moving Picture Company has never sold a machine , therefore any monopoly that may be built up under its patents is absolutely intact ."[7] He attempted to play on the Edison Company's concurrent difficulties with Lubin by suggesting that "in fighting us you are in effect fighting for Lubin and the others who have contributed nothing to this art, and if you succeed in defeating us, you will throw this country open to the kind of competition that obtains in Europe, where the biggest fakir, such as Lubin, makes the money at the expense of legitimate business." Edison's lawyers, unmoved by Armat's anti-Semitic appeal, decided to await the outcome of the suit. Armat, however, chose not to pursue it. In June 1903 the Edison Company altered its projecting kinetoscope, replacing its one-third shutter with a half-shutter. The new shutter allowed less light to be projected through the film and onto the screen, but seemed to protect the company from any future outcome of the suit, since Armat's patent had been poorly worded.[8] Notwithstanding these commercial disruptions and slight curtailment in the projector's quality, sales of projecting kinetoscopes for the 1903 business year increased less than 10 percent over the preceding year—to $36,651 with profits of $15,637.
The second decision involved the Lubin copyright case and directly affected Edison film production. On January 22d, one day after Life of an American Fireman had been copyrighted, Judge George Mifflin Dallas ruled that Edison's method of copyrighting motion pictures was unacceptable. Since 1897 Thomas Edison (via his secretary) had been sending paper prints of his company's films to the Library of Congress, where each was duly copyrighted as a single photograph. Edison lawyers argued that this procedure was adequate: "Each view is not sold by itself, but are sold in numbers together, being printed on one strip of film for the foregoing purpose (of showing successive views of the same object that give the appearance of actual motion) and constituting one photograph."[9] Lubin denied that "such photographic representations constitute one photograph and that the same can be copyrighted as one photograph or protected by a single copyright and avers that such photographic films are the result of joining together distinct and independent photographic exposures each requiring a separate copyright for securing an exclusive right to such original intellectual conception as it may contain."[10] Judge Dallas agreed with Lubin, ruling that:
It is requisite that every photograph, no matter how or for what purpose it may be cojoined with others, shall be separately registered, and that the prescribed notice of copyright shall be inscribed upon each of them. It may be true, as has been argued, that this construction of the section renders it unavailable for the protection of such a series
of photographs as this; but if, for this reason, the law is defective, it should be altered by Congress, not strained by the courts.[11]
Edison appealed.
Edison executives, while waiting for a review, drastically curtailed their company's output of original subjects, anticipating that these would be copied by Lubin and other "infringers." Little or nothing was produced at the Edison studio over the next three months, although a few new films taken by Abadie in Europe were offered for sale. A small fire ravaged the Kinteograph Department's darkroom on February 9th, injuring William Jamison and further disrupting production. The company's February and particularly its May catalogs featured dupes of foreign productions: Méliès' Joan of Arc, Robinson Crusoe , and Gulliver's Travels ; Urban Trading Company news films of the Durbar celebrations in Delhi, India; Pathé's Ali Baba and the Forty Thieves as well as Williamson and G. A. Smith pictures.[12]
Deeply concerned with the many legal problems that threatened the future of his enterprises, Edison had his principal patents lawyer, Frank Dyer, move into his laboratory on April 1, 1903.[13] Soon after, Edison's legal fortunes in the motion picture field were revived. On April 21st, in a landmark decision, Judge Dallas's ruling was reversed by the U.S. court of appeals. Judge Joseph Buffington, writing the opinion, asserted that:
The instantaneous and continuous operation of the camera is such that the difference between successive pictures is not distinguishable by the eye and is so slight that the casual observer will take a very considerable number of successive pictures of the series, and say they are identical . . . To require each of numerous undistinguishable pictures to be individually copyrighted, as suggested by the court, would in effect be to require copyright of many pictures to protect a single one.
When Congress in recognition of the photographic art saw fit in 1865 to amend the Act of 1831 (13 Stat 540), and extend copyright protection to a photograph or negative, it is not to be presumed it thought such art could not progress and that no protection was to be afforded such progress. It must have recognized there would be change and advance in making photographs just as there have been in making books, printing chromos and other subjects of copyright protection."[14]
A year after bringing his copyright suit against Lubin, Edison had finally won. Although films had been copyrighted in Edison's name for six years, the threat of legal action had always been enough to intimidate potential dupers less determined than Lubin.[15] Judge Buffington's decision was the first actually to recognize the validity of Edison's method of copyright. If the court had done otherwise, it would have discouraged American motion picture production still further. Howard Hayes, Edison's lawyer for the case, greeted the decision with enthusiasm. "It is a strong one and will be followed I think in other courts," he
wrote Gilmore. "Now that copyrighting the films has become of importance I want to arrange a plan by which the copyrighting can be done correctly and evidence of it kept so that it will be available in any suit on a moments notice."[16] As a result of Hayes' directive, copyright files were subsequently kept at West Orange; today they provide the historian with essential information about most Edison productions.[17]
The series of legal battles and injunctions between 1901 and April 1903 left the American industry in shambles. Uncertainties had discouraged investment in plant and negatives. Although Biograph had won its court case against Edison in March 1902, it remained a weakened competitor during the following year. The subjects and representational practices for its large-format service were increasingly antiquated. A typical program relied on a miscellaneous collection of short actualities with a few trick films and comedies thrown in for relief.[18] In contrast, Vitagraph had recognized the value of "headline attractions all of which are long subjects lasting from 10 to 20 minutes each."[19] This enabled Vitagraph to take over the Keith circuit from Biograph during the first week of April. Afterwards one trade journal observed that the new Vitagraph program was "the best series of films seen here in many weeks."[20] George Spoor's Chicago-based exhibition service made a similar shift toward story films, a key element in the reviving popularity of vaudeville film programs.
Edison, Vitagraph, Lubin, Spoor, and Selig—all relied heavily on European imports. Like Edison, many took local, inexpensive films that could not be provided by European producers. To a remarkable degree, Edison's competition with its rivals revolved around the rapidity with which newly released European story films could be brought to the United States, duped, and sold. The original prints that Edison acquired for these purposes were then purchased by Waters' Kinetograph Company, while dupes were marketed to other exhibitors. An urgent telegram from Gilmore to White in England underscored the importance of this business practice:
White: Vitagraph Co. getting foreign films ahead of us. They have received poachers, deserters, falling chimney and others at least ten days ahead of us. This very embarrassing. Unless can have your assurance that arrangements can be made for immediate shipments will send someone to take charge this end of the business. . . . Gilmore.[21]
Edison executives had adopted a business strategy that largely ignored the production capabilities of its film department. By duping foreign films on a massive scale, the department could limit its investment primarily to the cost of negative stock.
The easy money Edison and other American producers had been making from dupes was threatened in March 1903, when Gaston Méliès arrived in the United States to represent his brother Georges. In June he opened a New York office and factory to print and distribute Méliès' "Star" films and to secure the
economic benefits for their creator. His first catalog chided American manufacturers, announcing
GEORGE MELIES , proprietor and manager of the Théâtre Robert-Houdin, Paris, is the originator of the class of cinematograph films which are made from artificially arranged scenes, the creation of which has given new life to the trade at a time when it was dying out. He conceived the idea of portraying comical, magical and mystical views, and his creations have been imitated without success ever since.[22]
He also announced, "we are prepared and determined energetically to pursue all counterfeiters and pirates. We will not speak twice, we will act." Star films were then considered "the acme of life motion photography,"[23] and Georges Méliès was using a double camera to take two negatives of each subject, shipping one to New York. Henceforth, these were copyrighted, putting an end to the duping of future Star films.[24] Edison and other American companies found different makes to dupe, but they now had to face competition in the domestic market from the world's foremost manufacturer.