This is an appeal by the defendants from a judgment for the plaintiffs in the District Court for the Southern District of New York tried to the court without a jury, Edward J. Dimock, D. J., in a suit for damages and injunction for copyright infringement brought pursuant to the Copyright Act, 17 U.S.C. §§ 1 et seq., 101.
On March 30, 1960 an interlocutory judgment in favor of the plaintiffs, finding infringement, was rendered and the issue of damages and counsel fees referred to Newman Levy, Esq., a Special Master. A report was filed July 14, 1960 by the Special Master awarding to the plaintiffs thirty-five percent (35%) of the profits earned by the defendants, amounting to $4,497.27, plus an additional sum of $7,000 based on the damages of the plaintiffs having exceeded by this amount the profits recovered, together with counsel fees of $10,000.
Judge Dimock on the motion to confirm the report held that the Master had improperly made an allocation of profits as no evidence had been offered to show that any portion of the profit was due to that part of the book not appropriated from Orgel. Plaintiffs were therefore allowed the full amount of the profits earned by the defendants, $12,849.32, and the Master's additional award of $7,000 was stricken. The district court also confirmed the award of counsel fees, $10,000, and allowed $1,250 for the Master thereby making the total costs $2,176.40, and granted the usual injunctive relief. We modify the monetary judgment to reduce the award to 50% of the profits, $5,000 counsel fee, and costs, and as modified affirm the judgment.
We agree with the conclusion of the district court that:
Although Jahr has in some instances brought Orgel up to date, for instance he included United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945), and has added or substituted in a number of places recent New York condemnation cases, it appears to this court that the essence of Orgel was "lifted" by Jahr, and while he did not confine himself entirely to Orgel he did adopt as his own, Orgel's analysis, organization of material, phrasing and citations without any credit to Orgel as to most of the portions appropriated.
While any two books treating the same subject, particularly in the field of law where words and phrases are often terms of art, and based upon common sources are bound to contain a large measure of innocent similarity
Appellants attack the decision of the court below, claiming the award of all defendants'
While we appreciate the fact that defendants have failed to show with any certainty the portion of the sales attributable to the plagiarized portion we cannot agree with the conclusion of the district court that therefore all of the profits should be awarded to the plaintiffs.
In cases such as this where an infringer's profits are not entirely due to the infringement, and the evidence suggests some division which may rationally be used as a springboard it is the duty of the court to make some apportionment.
Belford, Clarke & Co. v. Scribner, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514 (1892) and Callaghan v. Myers, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547 (1888) have been narrowly limited and have no application "where it is clear that all the profits are not due to the use of the copyrighted material, and the evidence is sufficient to provide a fair basis of division," Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 402, 60 S.Ct. 681, 84 L.Ed. 825 (1940). Alfred Bell & Co. v. Catalda Fine Arts, 86 F.Supp. 399 (S. D.N.Y.1949), affirmed 191 F.2d 99 (2 Cir. 1951), is another case where no division was feasible as the entire product was the result of unlawful appropriation.
In the instant case the plagiarized material appeared only in the section on Valuation, which comprises thirty-five percent of Jahr's work. The very existence of the remaining sixty-five percent in the infringing work is convincing evidence that some part of the commercial value of the whole is attributable thereto. We are not persuaded that the principle of apportionment, announced in Sheldon, must be limited to cases in which experts have testified with respect to the relative contributions of the plagiarized and original portions. Although the testimony of experts is often helpful it is at best little more than an educated guess, and not of such compelling force that it is an essential element in every case.
In arriving at a figure every indulgence should be granted plaintiff in an attempt to arrive at a sum which is assuredly
No method will give mathematical accuracy, but in dealing with material such as we have here, designed primarily for use by bench and bar in legal contest, a reasonable estimate of the relative contribution of the plagiarized material may be made on the record before us.
Since valuation is the single most important issue in the bulk of condemnation litigation, we feel that it is reasonable to allocate 50% of the profits to the infringing material, although that makes up but approximately 35% of the defendants' complete work. The treatment of the nature and exercise of the power of eminent domain, parties, pleadings, jurisdiction and venue, methods of trial and review, and the sample forms provided, while useful and in some cases important are, after all, ancillary to the central issue in the vast majority of condemnation actions, that of valuation. Jahr, however, did undoubtedly perform a useful service in bringing these subjects together and treating them in one volume. We think the practitioners in this field would find the balance of the work needed and useful in approximately the same degree as the single most important portion, that on valuation derived from Orgel. This establishes the award at $6,424.66. Costs, including the Master's fee, were properly allowed. 17 U.S. C. § 116. Edward B. Marks Music Corp. v. Foullon, 171 F.2d 905 (2 Cir. 1949). Copyright Law Revision Studies prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, pursuant to S. Res. 240, Eighty-sixth Congress, Second Session, pp. 29, 30. The award of attorney's fees is discretionary with the court under the act. Ibid, p. 31. Since such a provision for attorney's fees is at variance with the usual practice in litigation before our courts, however, it has been sparingly used and the amounts awarded modest. Ibid. pp. 85, 91, Table B. Fee Awards to Prevailing Plaintiffs, 1938-1957. In the case at bar, while a substantial amount of time was spent by plaintiffs' counsel, much of it was necessitated by counsel's unfamiliarity with the field. Considering, as we must, the amount of work necessary, the amount of work done, the skill employed, the monetary amount involved and the result achieved, we feel that $10,000 is more than a liberal allowance and order the amount of attorney's fees reduced to $5,000.
The judgment is ordered modified in accordance with this opinion and as modified is affirmed. Costs, including attorney's fees of $250, to plaintiffs on this appeal.