A wrongful conviction, a stint as a galley slave and then a giant chariot race… Yes, we’re talking about Ben-Hur, the 1907 film and how it helped establish copyright law as we know it. It turns out that it was a lot more complicated than it seems…
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Splitting Cinematic hairs
It’s almost impossible to convey how wildly popular Lew Wallace’s 1880 novel Ben-Hur: A Tale of the Christ was when it was published. Written in dense, ye olde timey prose that has not aged well—and, to be fair, received its share of critical drubbing when first released—the 1959 adaptation remains a beloved classic.
The 1907 Kalem film Ben-Hur has been relegated to a historical footnote and certainly less famous than the 1925 authorized MGM film. (You can read my review of the 1925 and 1959 films here.) Today, we’re going to dig into the history of this early, illegal Ben-Hur and see what we can learn about the status of pop culture at the time.
Newcomer director Sidney Olcott took the helm, assigned to the post by Kalem, a newcomer studio. The adaptation was written by pioneering screenwriter and actress Gene Gauntier. The film gets right to the point with Jewish aristocrat Judah Ben-Hur accidentally knocking down a roof tile and beaning a Roman official. (The very obvious loose tile combined with the performer’s intentional movement inadvertently make the accident look premeditated. An explanatory title papers over this issue.)
Ben-Hur’s bestie, the Roman Messala, does nothing to help his friend and he is carted away for a lifetime of hard labor behind an oar. Later, Ben-Hur saves a Roman bigwig from a galley and is adopted. This sets him up to challenge Messala to a chariot race, which he wins. The end! Oh, was he supposed to save his family too?
(I should note that the surviving 1907 Ben-Hur material is not in the best of shape but it is more or less complete. The only scene from the original synopsis that seems to be missing is the galley rescue.)
The original novel then goes on to Ben-Hur finding his mother and sister and his eventual embrace of Christianity. Wallace insisted that any visualization of Ben-Hur should not include any physical representation of Jesus and the 1907 film neatly sidesteps the issue by cutting the Christ from A Tale of the Christ altogether.
Now, let’s dig into some context.
Ben-Hur the novel was big but the authorized 1899 stage adaptation of the book must have been something astonishing indeed. The chariot race employed treadmills so that real horses could thunder across the stage but the most impressive set piece seems to be the galley wreck. There was a loud crash and the entire theater was plunged into darkness. Under that cover, stagehands would remove the galley set and when the lights came back on, the audience would see the hero floating on flotsam in the middle of the artificial ocean. Jesus was played by a light, leaving his physical form to the imagination.
So, the play was not passively watched. Great effort was made to immerse the audience in the scene. It’s no wonder it was a smash hit, seen by an estimated 20 million people. And with souvenir books and albums widely sold, even people who had never seen the play had some idea of what they were missing.
I imagine that the Kalem production was much more exciting when hand-colored (only an extra $150!) but when compared to other productions of the time, it’s pretty chintzy. Segundo de Chomón, for example, was creating elaborate narratives that took advantage of downstage space to enhance their dynamic quality. (In other words, people walked toward to camera once in a while. How about that, Sidney? How about that?)
The 1907 film is also quite choppy, which should not be seen as a flaw. In a time when feature-length screen entertainment was rare and experimental, it was common to create a “good parts” version of a popular property. And this production is pretty much the only movie version of Ben-Hur that acknowledges the truth: it’s all downhill after the chariot race. Obviously, your mileage will vary based on your belief system but when you’re baited in with blood and thunder shipwrecks and horsies and then spend the last act immersed in leprosy and conversion, it’s a bit of a letdown. It’s like serving cake for dinner and then making everyone eat the kale salad for dessert.
One bit of trivia about the stage production was just as fascinating to silent era audiences as it is to modern viewers: the Broadway role of Messala was created by one William Surrey Hart. Hart, of course, remains a legendary western star, so the idea of him donning a miniskirt and stalking around as a Roman is delightfully different.
And this has led to one of the biggest misconceptions about the 1907 film. You see, quite a few resources list Hart as a member of the cast and claim that he reprised his role on the big screen. Never mind the fact that Hart had left Ben-Hur years before and had embraced western stage shows. And because the 1907 Ben-Hur does not exist in high quality, it’s almost impossible to conclusively deny these rumors.
Or is it?
According to Hart’s highly embroidered biography, My Life East and West, he acted in The Squaw Man for the 1906 season and The Virginian in the 1907 season. The profitability of the former show put him ahead by several hundred dollars, which he used to purchase and renovate a home in Connecticut before signing on for his next hit.
The memoirs of silent film stars are not generally reliable for cold hard facts and Hart’s is one of the more mythological. However, we know that Hart starred in both plays during the dates he listed. Everything he described was in keeping with his personality and famously close relationship with his mother and sister, whom he moved into his Connecticut house.
Further, even if he wasn’t busy renovating his newly-purchased home, Hart being engaged in two hit plays back-to-back eliminated the main reason stars of the legitimate stage might quietly moonlight in the movies: money. Movies paid handsomely for comparatively easy work and more than a few struggling stage performers were lured over with the promise of steady income and relatively little travel, sleazy reputation be damned. Hart, on the other hand, was in cash and in demand. To put it in modern terms, it would be like a movie star with an on-fire career appearing anonymously in a TikTok video because they wanted to earn $100.
If Hart hadn’t been moonlighting but was instead hitching his star to the movies (this was about to become very common), then he would have wanted some kind of publicity consideration for his work. We have an example of how a stage star would have been credited when reprising their stage performance thanks to the 1909 version of Oliver Twist. The Vitagraph production secured the services of Elita Proctor Otis in a supporting role and she alone was given her own introductory title card. Ads for Ben-Hur lavishly credited Olcott and Gauntier. Why would Hart be left out of the love?
I actually think it’s quite possible that director Sidney Olcott took the role of Messala for himself. He played the villain of The Colleen Bawn, so it wouldn’t be out of character, and Messala was widely regarded as the fun role of Ben-Hur.
And now we come to the real reason we are talking about this Ben-Hur: the lawsuit. Wallace’s publisher, Harper & Bros., sued Kalem and the battle raged all the way up to the Supreme Court. There were whispers of a Ben-Hur picture throughout 1907 and the trade periodical Moving Picture World replied, “We understand the royalty asked by the publisher is too prohibitive for reproduction.”
This was very true. One of the reasons why the 1925 version was seen as such a folly and a gamble was that Metro forked out the entire budget of a mega-epic to obtain the rights alone before a single set was built or frame of film was shot. Moving Picture World mused that the rumored 1907 version might simply be a retitled Passion play but Kalem ads for Ben-Hur soon put the matter to rest.
One thing has always bothered me about the Ben-Hur brouhaha: Kalem was not a fly-by-night operation. Investor and future producer George Kleine (the “K” in K-L-M, Kalem) was not hands-on in the business but he was a highly conservative man who hated pirates like Siegmund Lubin. He was on good terms with patent maniac Edison and joined forced with him in the late 1910s. Of all the early studios, Kalem is the last one I would expect to do something like this. In short: what the hell were they thinking?
Well, as it turns out, the decision to make Ben-Hur was not as insane as it sounds today.
In Before an Image Was Worth a Thousand Words: Ben-Hur and Copyright’s Right of Derivatives, Oren Bracha delves into the history of unauthorized Ben-Hur adaptations and, as it turns out, Wallace and his publishers sometimes lost their legal battles.
First, some background. In the nineteenth and early twentieth centuries, copyright law was still being hashed out. What had started as a simple trade privilege (“We alone can print copies of this work”) had become very murky indeed. Were foreign translations protected under copyright? Were abridgements? Were stage treatments? Did that apply to the script only? What about public performances?
As each element of copyright law was hashed out in court, the power of copyrights increased but there were (and still are) many murky elements. A novel to play was easier to deal with. It was print page to printed page, after all. But what about images?
The novel Ben-Hur: A Tale of the Christ is one of the all-time bestsellers in the English language. The ponderous work married piety with blood and guts, a combination that remains popular in our world of sexless blockbuster demigods. The United States went Ben-Hur crazy and everything from public Ben-Hur readings to amateur Ben-Hur theatricals to Ben-Hur spices and flours to Ben-Hur chariot races spread across the land.
One adaptation in particular bothered author Lew Wallace, a “tableaux and pantomime.” The tableaux-vivant or “living pictures” involved performers portraying scenes from fiction, history or daily life onstage. They were carefully costumed and lit but did not move or speak and were often visible for less than a minute. Spoken narration would be employed where needed, in this case, a reading of Ben-Hur. This adaptation was not viewed as a dramatization by Harper & Bros. and the matter was handled gently with no lawsuits. Wallace later released an authorized libretto for tableaux performances, which netted him the control he was seeking.
Things got litigious when another popular nineteenth century entertainment entered the fray: the magic lantern slide. Magic lantern shows were not mere droning slideshows. They employed lively narration, featured elaborately painted slides and the shows might even include animation and special effects. These shows were the direct ancestors of projected film. And they wanted Ben-Hur.
The Riley Brothers released a series of gorgeous painted slides alongside a forty-page script designed to be performed by a narrator. These weren’t amateur performers who dressed as Ben-Hur characters for a thirty-second tableaux-vivant viewing and, anyway, Wallace controlled those. This was a commercial undertaking and while the slides could be pumped out at a furious rate, possibly devaluing the Ben-Hur property. Wallace and Harper sued.
The Wallace v. Riley Case was centered on one question: could a series of images based on a copyrighted work and the accompanying text really be an adaptation in the eyes of the law? In our modern perspective, I dare so most people would say that it was. The Rileys countered that their slides were original works of art based on history and any resemblance to Ben-Hur was purely coincidental. (A reminder that the slide series was copyrighted as “The Stereopticon Illustrator of Ben Hur: A Tale of the Christ by General Lew Wallace.”) Further, they argued that magic lantern performances were not dramatic adaptations, so there.
The defense was idiotic. It worked.
Harper and Wallace won an injunction against the forty-page reading but not against the slides themselves. The legal lesson from the case and what Kalem very likely assumed was that they were in no legal peril as long as they did not lift text from the novel or play Ben-Hur. After all, the Riley slideshow ran for two hours and the Kalem one-reel adaptation would last a little over ten minutes.
What were movies but magic lantern slides with some extra movement? Kalem didn’t make Ben-Hur because the bosses were scofflaws and pirates, they released it because they almost certainly thought they had a reasonably solid legal case.
The suit against Kalem involved Harper, Wallace and now Klaw and Erlanger, which produced the authorized stage play. What is interesting is that the legal strategy of the plaintiffs did put the motion pictures on equal footing with the legitimate theater, which was not a universally accepted concept at the time. I don’t credit Ben-Hur entirely or even primarily with the rise in prestige enjoyed by the movies. Rather, that the plaintiffs understood the fact of the matter: movies were, if not exactly like the stage, at least cut from the same cloth. This shift in attitude—movies were not mere toys but capable of the same dramatic force as the stage—would help drive Broadway talent to the movies, William S. Hart included. (He made his film debut, his real debut, in 1914.)
Otherwise, it all proceeded very much like the case against Riley. Kalem argued that images and the written word were so different that one could not infringe on the copyright of the other. This time, though, the understanding of copyright law and adaptations had advanced and Kalem lost their case. It was kicked up to the Court of Appeals and, finally, the Supreme Court with Kalem losing each time and finally compelled to pay damages.
So, case closed, right? The 1907 Ben-Hur was an unauthorized adaptation and that was that? Well, no.
You see, the courts did not define the making of a motion picture as the infringement of copyright. Rather, in their eyes, infringement only occurred when the film was run through a projector—public performance—so the distributors of Ben-Hur were the primary infringers of copyright. Kalem was merely guilty of secondary infringement.
Obviously, this would please distributors and theater owners not at all since they could hardly be expected to track down the provenance of every film they screened. In fact, even before the 1911 Supreme Court ruling, studios were taking action to loudly and publicly secure legal adaptation rights. Motion Picture Story’s reference to the high price of Ben-Hur licensing shows that this had been a matter of concern for some time.
The funny thing is, I wouldn’t really consider the 1907 Ben-Hur to be a full adaptation myself. The ads for the picture credit the chariot race to the National Guard, one of many amateur and semi-professional charioteering exhibitions put on at the time, often for charity. I believe it because the race scene is a mess. The horses all look alike and it’s impossible to tell who is who, who won or even if there was a winner. The usual dramatic solution was to provide the hero with a team of white horses but one cannot be choosey about the horse colors in a military presentation. In fact, I strongly suspect that the race scene was a Mack Sennett-style attempt to take advantage of an already-scheduled event with the rest of the picture backfilled as an excuse to showcase the chariots.
(Kalem was all business, Olcott tended to shoot from the hip. Given their respective temperaments, it wouldn’t surprise me if Olcott charged ahead with Ben-Hur and the film was only released once Kalem decided it was on solid legal ground, which would also explain the rumors of a Ben-Hur movie months before it was available for sale. This is pure speculation but I think it’s a fair guess. The Kalem-Olcott collaboration could not last and dissolved over disagreements related to From the Manger to the Cross in 1912. There’s a certain symmetry to Olcott starting at Kalem with the Christless Ben-Hur and ending with a resurrectionless Jesus film.)
The 1907 version of Ben-Hur looks more like a 1902 or 1903 production (Olcott always was visually stodgy) and the cheapness is visible even in the battered surviving print. However, it is the film helped establish in legal terms just what a movie was. Kalem gambled on nineteenth century law but ran smack into twentieth century legal definitions.
Is it worth seeing? Sure, it’s just one reel and how often do you get to see legal history unfold before your eyes. But don’t waste your time looking for William S. Hart.
Where can I see it?
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