Argument for Petitioner. 252 U.S. The situation of the parties at the time the contract was entered into, and their acts in performance thereunder, are at war with the belated claim of respondent that he had the right to use the drama as the basis for a photoplay. The contract is not a grant or assignment-but a license to produce the play in the United States and Canada, subject to "the terms, conditions and limitations "therein expressed, and every "term," "condition" or "limitation" is applicable only to a production of the play as a spoken drama, and inappropriate to the use of petitioner's literary work as the basis for a scenario for a photoplay or screen performance. Heap v. Hartley, 42 L. R. Ch. Div. 461; London Printing & Publishing Alliance v. Cox, 7 Times L. R. 738; Neilson v. Horniman, 26 Times L. R. 188; Stevens v. Benning, 1 Kay & J. 168; Tuck v. Canton, 51 L. J. (N. S.) pt. 2, pp. 363-365; Lucas v. Cooke, 13 L. R. Ch. Div. 872; McIntosh v. Miner, 37 App. Div. 483; Harper Bros. v. Klaw, 232 Fed. Rep. 609, 612; Universal Film Mfg. Co. v. Copperman, 218 Fed. Rep. 577-578; Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 Fed. Rep. 374-377; New Fiction Publishing Co. v. Star Co., 220 Fed. Rep. 994–995; London v. Biograph Co., 231 Fed. Rep. 696-697; Klein v. Beach, 239 Fed. Rep. 108, 110. The modification of the contract, made July 20, 1914, somewhat reflects what was in the minds of the parties in January, 1912. The word "represent " used in the contract, cannot be construed as referring to a motion picture, as distinct from the play. Routledge v. Low, L. R. 3; H. L. 100; Black v. Imperial Book Co., 8 Ont. L. R. 9; Smiles v. Belford, 1 Ont. App. 436; Murray v. Elliston, 5 Barn. & Ald. 657; Duck v. Bates, 13 L. R. Q. B. 843; Chappell v. Boosey, 21 L. R. Ch. Div. 232. The provision that the author would not exercise his 317. Argument for Petitioner. right to print the play until six months after its production in New York City, is not a limitation of the reserved rights possessed by the author. Its purpose is to delay the exercise by the author of his undoubted right to publish the play until six months after the stage representation in New York City, not otherwise to limit or grant to respondent his reserved rights. The fact that petitioner retained the motion picture rights is not inconsistent with a license limited to a representation of the play as a spoken drama. It would be an act of folly for the author to destroy the value of his play as a spoken drama by giving motion picture performances. He might also have published his play without copyright protection six months after its first representation in New York City, and thus have made it common property. With the loss of his commonlaw rights would have fallen the rights claimed by respondent. Société Des Films Menchen v. Vitagraph Co., 251 Fed. Rep. 258. By the amendment to § 5 of the Copyright Act of 1912, 37 Stat. 488, motion picture photoplays are classified apart from dramatic or musical compositions (subdivisions land m). These rights are separable; "there might be a copyright for a dramatization of the old sort (acted on a stage) and also a copyright for a dramatization of the new sort (arranged in motion pictures)." Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 220 Fed. Rep. 448, 449. In Klein v. Beach, 239 Fed. Rep. 108, the exclusive right to dramatize a book for presentation "on the stage was held to exclude the presentation by means of motion pictures (see contract set forth at length in 232 Fed. Rep. 242). In England, a contract covering the "acting rights is held not to include cinema rights, nor do the words "English performances," embrace them. Ganthony v. Argument for Respondent. 252 U.S. G. R. J. Syndicate, Ltd.; and Wyndham v. A. E. Huebsch & Co., Ltd. ("The Author," Vol. XXVI, No. 1, of Oct. 1, 1915, pp. 16, 17.) Kalem Co. v. Harper Bros., 222 U. S. 55, distinguished. The license was not the grant of a right in perpetuity. Grant v. Maddox, 15 M. & W. 737; Broadway Photoplay Co. v. World Film Corp., 225 N. Y. 104. Mr. Charles H. Tuttle, with whom Mr. William Klein was on the brief, for respondent: The agreement, as modified, did not terminate by selflimitation at the end of the six theatrical seasons. It was not an agreement for personal services or for a naked license, but a contract of bargain and sale, whereby property was granted and conveyed. Frohman v. Fitch, 164 App. Div. 231, 233. It goes without saying that where property is conveyed, the conveyance is presumed to be absolute and not revocable at will or for a temporary period, in the absence of clear words of limitation. Western Union Telegraph Co. v. Pennsylvania Co., 129 Fed. Rep. 849, 867, 862. The provision for at least 75 performances each theatrical season for a specified time was not a grant by the plaintiff but a covenant by the defendant—a statement of the least he was to do. Furthermore, the contract of modification constituted a plain recognition by both parties that the original contract was not limited to the period mentioned and that the only question which was to be considered open, was whether that contract carried the motion picture rights. The modified contract also shows that the defendant received not a mere personal privilege, but property rights which the parties did not intend should expire by selflimitation at the end of the period referred to in the original contract. Any construction of the contract as modified, whereby 317. Argument for Respondent. it would be limited to the period of seasons mentioned in the original agreement, would be harsh and oppressive to the defendant. Quite apart from the special features and circumstances, the absolute character of this grant as not limited to any fixed period of years would follow as a matter of law. 6. Ruling Case Law, § 281; Western Union Tel. Co. v. Pennsylvania Co., supra, 861; McKell v. Chesapeake & Ohio Ry. Co., 175 Fed. Rep. 321, 329; White v. Hoyt, 73 N. Y. 505, 511; Duryea v. Mayor, 62 N. Y. 592, 597. Even if the contract as modified is to be limited to the period of seasons mentioned in the original contract, the action must fail because premature. That period does not expire until the season of 1918-1919. The contracts between the parties conferred upon the defendant as part of the production rights, the right to produce the play in motion picture form. The granting clause of the original contract conveyed all the production rights. The comprehensive force of the word "exclusive" when used in a conveyance of dramatic rights, and its clear purpose to prevent competitive production, have been well stated in Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 Fed. Rep. 374, 376; affd. 220 Fed. Rep. 448. The word "represent" is peculiarly appropriate to a motion picture representation of a play. Section 4952, Rev. Stats., gave the author of a dramatic composition not only the sole right of printing it but also the sole right "of publicly performing or representing it or causing it to be performed or represented by others." In Kalem Co. v. Harper Bros., 222 U. S. 55, this court held that a motion picture representation of "Ben Hur" was an infringement of the author's copyright, since it was a representation of the story dramatically. See Argument for Respondent. 252 U.S. Daly v. Palmer, 6 Blatchf. 256, 6 Fed. Cas. 1132, Case No. 3552. Furthermore, unquestionably the grant of an exclusive right to produce, perform and represent a play purports a grant of the exclusive dramatic rights, and the "dramatic rights include motion picture rights," unless that meaning is narrowed by the addition of other words. Before the present contract was made, dramatic rights had acquired that definite and judicially determined meaning by virtue of Kalem Co. v. Harper Bros., supra. If the parties to the present contract intended this form of grant to have any less meaning, language was available to reveal that intent. Tully v. Triangle Film Corp., 229 Fed. Rep. 297. In addition to the breadth of the granting clause itself, there are other provisions in the agreement which prove incontestably the mutual intent to convey the entire right to place the play before the American public in any form. The expression of certain reservations in favor of the piaintiff was an exclusion of all others. The courts will not easily accept a construction which would permit the plaintiff to produce motion pictures in competition with the defendant's production on the stage. The courts have frequently discerned the destructive consequences of a motion picture production of the play, synchronously with its production on the stage. Harper Bros. v. Klaw, 232 Fed. Rep. 609, 613; Frohman v. Fitch, 164 App. Div. 231, 233-234; Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 Fed. Rep. 374, 377. The supplemental contract illustrates the intent of the parties to transfer to the defendant the ownership of the play for all production purposes. The unbroken tenor of judicial decisions interpreting similar agreements establishes incontestably that the |