## Facts

- Harper & Brothers owned the copyright to Lew Wallace’s novel *Ben-Hur: A Tale of the Christ* and had licensed a stage dramatization.
- Kalem Company hired someone to read the novel and prepare scenarios drawn from portions of the book.
- Kalem filmed actors performing these scenarios and produced a short motion picture marketed and sold as *Ben Hur*.
- The film depicted principal scenes of the novel in sequence so that viewers could follow the story through moving images.
- Kalem did not operate theaters; it manufactured and sold film reels with the expectation and purpose that exhibitors would publicly show them.
- Harper & Brothers sued, alleging the film was an unauthorized “dramatization” infringing their statutory rights under Rev. Stat. § 4952 (as amended in 1891).

## Issues

1. Whether a motion picture that depicts the principal scenes of a copyrighted novel so as to tell its story constitutes an infringing “dramatization” under Rev. Stat. § 4952.
2. Whether a film producer that sells films for public exhibition is liable for infringement even if it does not itself exhibit the film.
3. Whether applying § 4952 to dramatizations exceeds Congress’s authority under the Copyright Clause.

## Decision

- The Supreme Court affirmed the injunction against Kalem.
- The Court held that exhibiting a series of photographs arranged as moving pictures that depict principal scenes and tell the story of a book is a “dramatization” of the work.
- The Court held Kalem liable because it produced and sold the film for exhibition and thereby invited and procured the infringing performances.
- The Court rejected the constitutional challenge, concluding the statute’s coverage of dramatizations stayed within Congress’s power to protect authors’ “writings.”
- The Court expressly reserved, without deciding, questions about infringement if motion were created from paintings rather than photographs and about the copyrightability of the photographs themselves.

## Legal Principles

- A motion picture that visually presents the key scenes of a copyrighted literary work in a way that conveys the story can be an infringing dramatization.
- Copyright protection extends beyond verbatim text to recognized forms of reproduction that translate the author’s expression into action for performance.
- A party that manufactures and markets an infringing work for public performance may be liable as an infringer even if third parties carry out the exhibition, when the public performances are intended and encouraged by the seller’s conduct.
- Statutory protection of dramatizations is a permissible means of securing exclusive rights in an author’s “writings” under the Copyright Clause.

## Conclusion

The Court held that Kalem’s motion-picture retelling of *Ben-Hur* was an unauthorized dramatization and that Kalem was responsible for infringement because it produced and sold the film for public exhibition, with § 4952 validly covering such dramatizations.


Kalem Co. v. Harper Bros., 222 U.S. 55 (1911)