FREDERICK van PELT BRYAN, District Judge:
This action for copyright infringement, brought under 17 U.S.C. § 101 et seq., was tried before me without a jury. The dispute arises out of television exhibitions by defendant of the motion picture "Maytime."
Most of the factual background is not in dispute and is as follows: On June 1, 1914, certificate of copyright D-37173 was issued to Rudolf Bernauer and Rudolph Schanzer as authors of a dramatic composition "Wie Einst Im Mai" written in German with music by Walter Kollo and Willy Bredschneider.
On January 23, 1930, Hans Bartsch, the late husband of the present plaintiff, obtained exclusive motion picture rights for "Wie Einst Im Mai" from the authors, Schanzer and Bernauer, and from several others owning interests in the composition. This grant in specific terms transferred to Bartsch "the sole and exclusive rights to use, adapt, translate, add to and change the said operetta or musical play and the title thereof in the making of motion picture photoplays, and to project, transmit and otherwise reproduce the said work or any adaptation or version thereof, visually and audibly by the art of cinematography or any other process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world * * *.
On October 31, 1935, Rudolph Schanzer assigned to Hans Bartsch all his right, title and interest in the "Wie Einst Im Mai" copyright and all renewals thereof.
Bartsch died as a New York resident on July 10, 1953. His will
The following course of events led to this suit against M.G.M. for an alleged infringement of the renewal copyright: Some time during 1936 and 1937 defendant produced and commenced distribution and exhibition of the motion picture film entitled "Maytime."
On July 6, 1950, M.G.M. obtained a confirmation from G. Schirmer, Inc. of all rights under the "Maytime" renewal copyright — including the right to televise the motion picture.
The respective contentions of the parties are quite straightforward. Plaintiff takes the position that the crucial May 12, 1930 transfer of motion picture rights from Hans Bartsch to defendant's predecessor in interest, Warner,
Defendant M.G.M., on the other hand, takes the simple position that all rights to exhibit the film on television were relinquished by the May 12, 1930 transfer. It urges further that in any event Hans Bartsch made an absolute and unconditional transfer to it of any and all rights of whatsoever nature he received from persons owning an interest in "Wie Einst Im Mai"
The first narrow issue posed by these contentions is whether the May 12, 1930 grant was broad enough to constitute a conveyance of television exhibition rights. More particularly, the question is whether the right to exhibit "Maytime" on television was embraced in a conveyance of "motion picture rights" authorizing Warner "to project, transmit and otherwise reproduce the said musical play or any adaptation or version thereof visually and audibly by the art of cinematography or any process analogous thereto * * *."
The parties recognize that the correct disposition of this issue requires a determination of the intent of the principals as manifested in the contract of May 12, 1930. As in Meyers v. Selznick Co., 373 F.2d 218, 222 (2d Cir. 1966), the words used by the parties in this crucial document are hardly so "`plain and clear' as to exclude proof of surrounding circumstances and other extrinsic aids to interpretation." Accordingly the parties introduced evidence throwing light on the general practices of the motion picture industry in 1930. Unfortunately neither side was able to produce a witness who was directly involved in the negotiations or preparation of the particular grant with which we are directly concerned.
During 1930 the future possibilities of television were recognized by knowledgeable people in the entertainment and motion picture industries. There is no question that upon occasion rights to exhibit motion pictures on television were specifically bargained for and transferred during that year.
In the case at bar I do not deem the absence of any specific reference to television in the crucial 1930 transfer to Warner to be of any controlling significance. In the first place, of course, grants and assignments to Warner by others during the same period obviously are not indicative of the precise scope
Moreover, we are by no means left in the dark as to exactly what bundle of rights was actually embraced by the 1930 transfer. The pertinent language in the contract of May 12, 1930, is strongly suggestive of the conclusion that the transferor Bartsch relinquished "Maytime" television rights. The phrase "to project, transmit and otherwise reproduce the said musical play" appears to represent an attempt by the parties to exhaust all possibilities with respect to the exhibition of the film. It was generally understood in the industry during 1930 that phrases such as the catch-all term "otherwise reproduce" were included in grants of film rights to assure an enlargement of the rights granted.
In addition, defendant has established here that the exhibitions of the film on television qualify as reproductions of the play "by the art of cinematography or any process analogous thereto." The art of cinematography means generally the production of "a motion picture in any shape, form, size, color dimension" and thereafter making "use of that motion picture."
John Whittaker, defendant's well qualified expert witness, fully explained the respective techniques and mechanical operations of exhibiting a film in a theatre as compared with reproduction of a film image on a television screen in the home. His testimony was uncontradicted, since plaintiff did not produce an expert. The processes of theatre and home television exhibition are markedly similar. In a theatre the images in a motion picture film are produced by a projector casting rays of light against a screen. A shutter controls the various degrees of brightness which make up the picture seen by the audience. Similarly, the customary practice for exhibiting motion picture films over television requires the use of a standard projector, sound head and lenses like those which are used in the theatre.
A very small image is projected against a photosensitive electronic scanning system, rather than a standard screen, and the information by a process of transduction is converted into electrical energy, transmitted over the air in electrical impulses, and carried into the home where it is again converted by the viewer's set.
It is evident, therefore, that the process of exhibiting a motion picture over television provides a very close analogy to an exhibition in a theatre. This was true in 1930 from the point of view of the production and commercial end of the motion picture industry.
Beyond this, the broad, sweeping phrase "by the art of cinematography or any process analogous thereto," like the expansive terms "project, transmit or otherwise reproduce," was evidently included in the contract as a means of enlarging the grant to Warner.
There is yet a further reason why plaintiff cannot prevail in this action. As mentioned, on January 23, 1930, Bartsch obtained from several persons having an interest in "Wie Einst Im Mai" all motion picture rights "together with the sole and exclusive rights to use, adapt, translate, add to and change the said operetta or musical play and the title thereof in the making of motion picture photoplays, and to project, transmit and otherwise reproduce the said work or any adaptation or version thereof, visually and audibly by the art of cinematography or any process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world * * *."
"One method of ascertaining what has or has not been transferred is
Plaintiff points to a general reservation of rights in the 1930 transfer
Since I have found for the defendant on this crucial question of the scope of the grant made in the assignment of May 12, 1930,
Judgment will be entered for defendant.
The foregoing opinion constitutes my findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P.
It is so ordered.
"Owner hereby grants and assigns unto Purchaser, its successors and assigns, the motion picture rights throughout the world, in and to a certain musical play entitled "WIE EINST IN MAI", * * * for the full period of all copyrights and any renewed and extended terms thereof, together with the sole and exclusive right to use, adapt, translate, add to, subtract from, interpolate in and change said musical play, and the title thereof, (subject so far as the right to use said title is concerned to Paragraph 7 hereof) in the making of motion picture photoplays and to project, transmit and otherwise reproduce the said musical play or any adaptation or version thereof visually and audibly by the art of cinematography or any process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world * * *."