Movie Copyright Litigation from 1915: O’Neill v. General Film Co.

Today’s New York Times ran an article about the modernization of the Archives for New York County, and it reminded me of some research I did there for my draft article on common-law copyright.  Although I ended up not using it that much, I tracked down the files from a number of nonmusical common-law copyright cases, and this led me to the same New York County Municipal Archives, to look at the case file for O’Neill v. General Film Co., 171 App. Div. 854 (N.Y. App. Div. 1916).

The case was brought by James O’Neill, best known today as father of Eugene O’Neill, but an important actor of his day who owned the American common-law copyright rights to Charles Fechter’s English stage adaptation of the County of Monte Cristo.  He sued the General Film Company for distributing a film also based on the novel The Count of Monte Christo, which he alleged was also based on Fechter’s adaptation, and made substantially the same editorial and dramatic choices as Fechter.  1  O’Neill had been playing the lead role of Edmond Dantes for some 35 years by this point, to tremendous financial success, and in the same year the suit was originally brought (1912), he had starred in an authorized adaptation of The Count of Monte Christo.

Both sides hired prominent lawyers.  The plaintiff hired Dittenhoefer, Gerber & James, likely the leading theatrical law firm of its day – Judge A.J. Dittenhoefer had been a leading theater lawyer for decades at this point.2.  The defendant hired Nathan Burkan, a rising star in the legal world who only a few years later (and before the appeal was decided) would help found ASCAP.

At trial, the Court took testimony and ruled in favor of the plaintiff O’Neill, holding that the motion picture at issue infringed his rights in the the Fechter play at common law.  On appeal, the Court had no difficulty affirming the trial court on the count of copying, but found the question of chain of title and publication more pressing.  On the question of whether O’Neill truly had valid title to the common-law rights in the play the Court was equivocal, finding the evidence scanty, but ultimately affirmed the trial Court and held that he had produced sufficient evidence to bring the case and create a rebuttal presumption of ownership.  The Court had the most difficulty with publication – they agreed that performance of the play or taking photos of the production did not constitute a divestative publication that would destroy common-law rights, which only made sense following existing NY precedents and the US Supreme Court’s recent decision in Ferris v. Frohman.  However, O’Neill had signed a contract several weeks earlier with the Famous Players Film Co,3 and the Court was concerned that this might have been a divstative publication of the unpublished play.  In the end, the Appellate Division held that the motion picture rights to any part of the unpublished play that were used in the authorized motion picture were deemed published, and thus the common-law rights had been lost.  However, O’Neill retained the common-law film rights to whatever parts of Fechter’s play had not been used in the motion picture.

The printed record of the case on appeal, which I scanned at The New York State Library in Albany, proved much more manageable than the original handwritten records of the case at The New York County Archives.  It contains a transcript of the testimony at trial which includes extensive documentation of theater practices for common-law copyright, by the plaintiff and others.4   The appellate briefs of the parties are also included, laying out the issue of common-law copyright as it was understood as of 1915.  However, not everything from the records in the New York County Archives is reproduced in the printed appellate record.  Notably, the New York County Archives has what appears to be a complete copy of Fechter’s dramatization, dated 1868.  Fechter’s drama has been reprinted several times, although not recently, and in differing versions.  It might be of interest to literary scholars.  In addition, the case file included a number of advertisements as exhibits; I’ve included them after the jump.

  1. The film was not actually made by General Film, but rather by the Selig Polyscope Company in Chicago.  General Film was the distribution company of the Edison Trust.
  2. Dittenhoefer is best-remembered today for his association with Abraham Lincoln
  3. Famous Players later merged into what would become Paramount
  4. The testimony begins at page 61

Author: Zvi S. Rosen

Lawyer and sometimes academic. I've written a fair deal about the evolution of intellectual property law into its present form, this blog is a way to share things that don't fit into a full-length article.

3 thoughts on “Movie Copyright Litigation from 1915: O’Neill v. General Film Co.”

  1. Dear Mr Rosen
    I am a researcher of stage versions of Monte Cristo. I found and read the appeal case record a few months ago. Thank you so much for scanning this. It was a fascinating read. I found it astonishing that Colin Campbell, the screenwriter of the Selig production, did not give evidence. I felt sorry for the company representative who had to admit he barely remembered the events of the novel.

    I think it’s easy to forget just how popular Monte Cristo was in the 1880s and 90s. James O’Neill made a fortune from it and was highly defensive about anyone using the script. I have a few that are clearly based on the “Fecther version” with just a few minor plot alterations. I can see why O’Neill asserted his ownership of the script but it always seemed rather wrong to me as he never actually wrote it. He claims to have bought it from a theatre manager and while this is probable, no real evidence for this was produced at the court. Besides many theatre companies were performing the Fechter version in the UK, where James O’Neill was unheard of.

    I think there was a similar situation with the play The Two Orphans. Its famous star Kate Claxton constantly defended her rights to the play which she had purchased from a former manager. D. W Griffith paid her to use the story in his film Orphans of The Storm, not realising the copyright had expired in 1917.

    William Fox did a version of Monte Cristo in 1922 and bought the rights to the Fecther play. It was probably to avoid trouble but very little, if any, of the movie was based on Fechter.

    Thank you for posting the pictures. I have an archive of adverts and playbills from newspapers but have never seen any of the ones you posted before. A real goldmine.

    I am curious about the Fecther script. Was it typewritten? Were there any other scripts present?

    Best wishes


    1. Fascinating backstory, Robert! I’ll admit I didn’t come in as an expert on this subject, it just seemed like a good case to explore how Courts employed the doctrine of Common Law Copyright in the early 20th century, right after Ferris v. Frohman.

      The whole thing is typed; I took photos of the first two pages at the NY County Archives, but didn’t have time to do the whole thing. I tweeted pictures:

      It’s held here:

      1. Thanks. I got the images of the Fechter script. This looks like that one that was deposited at the British Library. Only a few copies are known to exist at different locations. Really great research. Thanks again.

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