Ben Hur (1907)
Released 7th December 1907
Ben Hur is a film that under normal circumstances would barely warrant a footnote in the history of cinema. Directed by Sidney Olcott for Kalem, it is crude even for 1907. Although Olcott rose to become Kalem’s most highly regarded director – both by his contemporaries and employers – the passage of time has shown he was a skilled tradesman rather than a creative artisan. The son of Irish immigrants, he began as an actor on the New York stage before joining Biograph in 1904, where he eventually became General Manager. He was lured from Biograph by the studio’s sales manager, Frances J. Marion, and Samuel Long, its laboratory manager to become the first employee of Kalem, the independent film company they formed with film distributor George Kleine in 1907. According to Olcott, he didn’t realise until he turned up for work on his first day that he was expected to direct for the company.
Soon after starting at Kalem, he was joined by screenwriter Gene Gauntier, who later recalled how Ben Hur came about: “[Marion] explained that the Pain’s Fireworks Company, which had been exhibiting a spectacle all summer on the racetrack at Sheepshead Park, was closing for the season. Here was a great opportunity to produce Ben Hur using the Pain Company’s props, supers and standing scenery. Would I have the scenario ready in two days? It was October. The fall rains might begin at any time… Mr. Olcott and I went to the racetrack, found the props impossible and the supers [extras] inadequate, hurried back to Swain’s Agency and interviewed people for the cast and for extras, and late in the evening rushed down to Elliott’s and remained until after midnight selecting props and hundreds of costumes.”
Ben Hur is typical of the cheap productions Kalem was offering the market in 1907. Painted sets form the backdrop to the climactic chariot race which, needless to say, is far less impressive than those in either the 1925 or 1959 versions. In Olcott’s film we merely see the horse-drawn chariots speed past a static shot of a small crowd. In earlier scenes, an archway is nothing more than a painted sheet hung below a platform on which the actors emote with the usual exaggerated gestures. The film is more a series of tableaux, scenes from Lew Wallace’s novel acted out for those familiar with its tale. All are shot from distance, so that it is difficult to tell characters apart. Only the intertitles – still uncommon and unusually elaborate – featuring silhouette animations make Ben Hur stand out from other productions of the day.
Olcott shared directing credit with Frank Oakes Rose, the stage manager for the Pains Company, which staged nightly recreations of the destruction of Pompeii and included chariot races as part of its programme. Gauntier explained that they realised Rose was seriously out of his depth when he initially took charge of directing the shoot: “The weather turned cold with a biting wind coming in from the sea, and the people had been called for eight o’clock in the morning. When I arrived a little before noon they were shivering in their thin Roman costumes and nothing had been accomplished. Not a scene had been taken. Chaos reigned and Mr. Rose was like a madman. He had never even seen a motion picture taken, knew nothing of technique or camera limitations, and had reduced Max Schneider, our cameraman, to despair with his impossible suggestions. Olcott sat on the fence of the racetrack, kicking his heels…
“At last Marion came to him, almost with tears in his eyes. ‘For the love of Mike, Sid, get into this and get something done. This man doesn’t know the first principles of pictures.’
“Sid twitched his eyebrows and laughed but he jumped down from his perch, which was promptly taken by Mr. Rose who was wiping nervous perspiration from his brow.
“‘God, that’s the hardest thing I was ever up against,’ said the man who had produced a dozen spectacles. And there he sat for the rest of the day, learning how moving pictures were made.… Fast and furiously Olcott drove his crowds and they, sensing an intelligent guiding hand, ceased milling and stampeding and settled down to constructive action. Three days it kept up and at the end of that time, exhausted but happy, we had the picture ‘in the box’. And the next day it rained.”
Critiquing the film in 1928, three years after the release of MGM’s epic version, Gauntier said, “Of course viewed by present standards it was an atrocious film, Imagine producing Ben Hur in approximately one thousand feet and ‘sixteen magnificent scenes’ as the advertisement read! The chariot race was the great climax and ‘sold’ the picture. But there were no water scenes, no galley shots. Nevertheless, crude as it was, it was a step forward and a fine advertisement for the Kalem Company.”
However, completion of filming and distribution of the finished movie merely marked the start of Kalem’s problems. When the late politician and lawyer Lew Wallace wrote Ben-Hur: A Tale of the Christ in 1880 it became a massive bestseller, remaining at the top of the US all-time bestseller list until 1936. It was blessed by Pope Leo XIII, and is considered by many to be the most influential Christian book of the nineteenth century. In the early days of filmmaking, it was common practice for production companies to film literary works without seeking the rights holder’s permission, which is exactly what Kalem did with Ben Hur. The author and the book’s publisher Harper had always strongly defended the work against copyright infringement. Wallace approved some adaptations of his work, including, from November 1899, a spectacular Broadway play presented by Klaw & Erlanger, which was still playing when Kalem released their film version. Upon hearing of the film, Henry Wallace, the late author’s son, Klaw and Erlanger and Harper and Brothers combined forces to sue Kalem for copyright infringement. After only around 500 screenings, Kalem was forced to withdraw the film from distribution.
In court, Kalem’s lawyers argued that Gauntier had been working from a first edition of Ben-Hur before it had been granted copyright, and that the film itself was merely a series of photographs and therefore a different form of expression to the written word. However, their arguments were in vain; on 5th May 1908, Judge Emile Henry Lacombe ruled that the film was in violation of copyright. He conceded that still photographs, or a series of photographs, did not violate copyright but ‘when the moving pictures are thrown upon the screen’ they represented pantomimes and were therefore subject to legal copyright guidelines.
On the 9th May 1908, Variety reported:
“[this decision] will have great effect upon the contemplated ‘living moving pictures’ which have of late been in anticipation by film manufacturers. Under the Court’s decree, royalty must be paid for productions of copyrighted articles, and this may interfere to a considerable extent with the manufacturer’s plans.’
Kalem appealed against the decision, arguing that their film was only an exhibition of pictures and not a dramatic performance, and as the film wasn’t a written product, the statute relating to moving pictures was unconstitutional. Again, they were defeated. On 16th March 1909, the Circuit Court of Appeals Judge Henry Galbraith Ward upheld the ruling: “Such a composition, though its success is largely dependent upon what is seen, irrespective of the dialogue, is dramatic. It tells a story which is quite as intelligible to the spectator as if it had been presented to him in a written narrative.”
Kalem next appealed to the Supreme Court, their action financed by the Motion Picture Patents Company, of which it was a member. The MPPC’s attorney Drury W. Cooper argued that moving pictures were a new form of artistic creation not yet covered by copyright law, and that as the creators of the work, and not the exhibitors, Kalem was not liable for violation of copyright. Justice Oliver Wendell Holmes dismissed their argument, stating that Kalem created an unlawful dramatisation of the novel and that the exhibitors were not at fault: “the defendant not only expected but invoked by advertisement the use of its films for dramatic reproduction of the story.”
Kalem and the MPPC were ordered to pay a fine of $25,000 and destroy all copies of the film. At least two copies survived, however, finding homes at the Museum of Modern Art in New York and the Library of Congress in Washington.
The ruling resulted in film studios having to purchase the right to adapt copyrighted properties in future. It also meant their own films could be copyrighted, eventually eliminating the previously prolific pirating (or duping) of films.