Full opinion text
STEPHENS, Circuit Judge. The Plarold Lloyd Corporation filed its complaint against Universal Pictures Co., Inc. and Clyde Bruckman, in the United States District Court for damages, injunc-tive and other relief. The action arises out of alleged infringements upon the copyright of the motion picture photoplay entitled “Movie Crazy”. The defendants deny infringement but admit production and distribution of the alleged infringing motion picture photoplay entitled “So’s Your Uncle”. The trial court found and awarded judgment to the plaintiff and against defendants for damages in the sum of $40,000, $10,000 for attorney fees, and granted injunctive relief against further violation of plaintiff’s rights under its copyright. The court found the total amount of profits realized by the Universal Pictures Co. from distribution of the infringing photoplay was in excess of $20,000, 20% of which had been derived from the infringements. However, profits as such were not allowed in the award. The defendants appeal. The Harold Lloyd Corporation cross-appeals on the ground that the damages are inadequate. We shall occasionally refer to the plaintiff-appellee and cross-appellant as Lloyd and defendant-appellants and cross-appellees as Universal and Bruck-man. The motion picture photoplay “Movie Crazy”, starring Harold Lloyd, was produced by appellant during the years 1931 and 1932 at a cost exceeding $650,000 and was copyrighted. Lloyd’s ownership has been continuous and is unchanged. Bruck-man was employed by Lloyd during production of “Movie Crazy” to assist as a writer and director and he was paid $42,900 for his services. During the year 1943, Bruck-man was employed by Universal as a writer for a motion picture photoplay entitled “So’s Your Uncle”, the alleged infringing film. The trial judge found that Universal and Bruckman knowingly, wilfully, and deliberately incorporated in “So’s Your Uncle” a sequence of 57 consecutive scenes, constituting the “Magician’s Coat Sequence”, directly from “Movie Crazy”. He further found that “So’s Your Uncle” was exhibited in more than 5,000 theaters throughout the United States in deliberate violation of Lloyd’s copyright after it had been given full information of the misappropriation. The issues on appeal are as follows: (1) Is there substantial evidence to support the finding of fact that appellants deliberately misappropriated the sequence of 57 scenes, and if it did, does such fact constitute infringement of the “Movie Crazy” copyright; (2) Ts there substantial evidence to sustain the finding that Lloyd suffered $40,-000 actual damage thereby. The Infringement The sequence of 57 scenes or the last 300 feet of reel 7 and the first 700 feet of reel 8 of “Movie Crazy”, constituting the “Magician’s Coat Sequence”, are reproduced in the first 57 scenes and first 600 feet of the 4th reel of “So’s Your Uncle”. In “Movie Crazy”, the star of the film attends a dinner dance given by a movie magnate’s wife, having gained possession of an invitation by mistake. After being admitted, the star goes into the washroom and removes his coat. The coat falls and a magician hangs his coat on the hook just vacated; The star mistakenly puts on the magician’s coat and returns to the dining room. He is introduced and is seated at the hostess’ table and soon is dancing with her. Numerous comedy incidents begin to happen. He changes partners' and the happenings continue — doves flutter, white mice crawl, eggs roll down the sleeves, all from the magician’s coat when loosened. During the resulting melee, the magician enters and reproaches the star for stealing the coat. The star is discovered to be present without intended credentials and is literally thrown out. In “So’s Your Uncle”, the leading character or star, disguised as his own uncle, two ladies and another man, go to a night club. While there, it becomes necessary for the star to appear as himself as well as his own uncle. Through the aid of a friend, a waiter in the club, he seeks a change of clothing. The waiter goes to the dressing room, takes a magician’s coat and passes it to the star, who puts it on without knowing it to be a magician’s- coat. So clothed, he returns to the table in the character of himself. He dances with one of his table companions, and the comedy incidents occur, almost exactly as they do in “Movie Crazy” with practically the same results. The star leaves with his dancing partner and the waiter is blamed by the magician for the loss of his coat. The main contention of both Universal and Bruckman is that Lloyd’s photoplay is not a proper subject for copyright, hence no action for infringement lies. Secondly, they contend that there has not been such an appropriation as to constitute infringement. Universal asserts that there was not an appropriation of a substantial and material part of copyrightable material; the “gags” and “stage business” of the “Magician’s Coat Sequence” have no dramatic quality; they are a subordinate sequence of events; the copyright does not cover any particular sequence of combination of “gags” or “stage business”; the scenes are merely comedy accretion to the story and having no story structure/ are not dramatic; and finally, they are but a mere subsection of a plot and, therefore, not susceptible of copyright protection. Bruckman contends that the “comedy routine” of “Movie Crazy” is not within the Copyright Act because it is commonplace; it is dissimilar in the two pictures; it is entertainment but not dramatic composition, and it is slapstick and not dramatic composition. He further contends that he is not liable as an infringer as he had nothing to do with the production, release or exhibition of “So’s Your Uncle”. The pertinent parts of the Copyright Act, 17 U.S.C.A. 1 et seq., are as follows: Section 1. “Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right: « sjí sjí sje sje s|c “(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and’ not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by- or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, Or reproduced; and-to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever Section 5. “The application for registration shall specify to which of the following classes the work in which copyright is claimed belongs: “ * * * * * “(d) Dramatic or dramatico-musical compositions; “ * * * * * “(1) Motion-picture photoplays; “(m) Motion pictures other than photo-plays. “The above specifications shall not be held to limit the subject matter of copyright as defined in section 4 of this title, nor shall any error in classification invalidate or impair the copyright protection secured under this title.” We agree with the trial court that the appellee’s photoplay is a dramatic work and within the meaning of Section 1(d) of the Copyright Act. In Vilaphone Corporation v. Hutchinson Amusement Co., D. C., 19 F.Supp. 359, the defendants made the contention that motion pictures consisting of one or more reels of “slapstick comedy” are not copyrightable under the Copyright Act, and the court made its answer at page 360: “I do not think there is much merit to this contention. All of the pictures are what are known in the trade as ‘shorts’; that is, they run for periods from ten to twenty minutes, and are used as fill-ins between the feature pictures, newsreels, and other pictures on the program. The subjects are comedy, and while they are of the ‘slapstick’ type, they, nevertheless, have a story to them. * * * In the instant case, the reduction of the story such as it is to a motion picture is a dramatization of its work. I, therefore, find and rule that the copyrighted pictures in question are within the meaning and terms of the copyright law.” The subject is treated in 18 C.J.S. Copyright and Literary Property, § 117, p. 233, where the commentator states that motion-picture photoplays are dramatic works within the statute and may be infringed by any other motion picture making use of parallel situations. Nor does the fact that Section 5, above quoted, of the Act lists dramatic compositions and motion pictures separately, imply that motion pictures are not, as suggested by appellants, dramatic compositions. Section 201.4, entitled Subject matter of copyright”, from the Code of Federal Regulations, Chapter II, Title 37 as Amended to October 1, 1941, relied upon by appellants, provides: “The designation ‘dramatic composition’ does not include the following: Dances, motion-picture shows; stage settings or mechanical devices by which dramatic efforts are produced, or ‘stage business’; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; scenarios for, or descriptions of motion pictures or of settings for the production of motion pictures. * * This section is part of the description of Section 5 of the Copyright Act, which names 13 classes of works for which copyright may be secured, stating that the application for registration shall specify to which of those classes the work belongs. The above statement follows class (d) under the Act, which is “Dramatic and dramatico-musical compositions.” The statement docs not govern Section 1 (d) of the Act, but governs Section 5, which sets up a classification system for, convenient registration in the Copyright office, wherein there are separate classifications for dramatic compositions and motion pictures, and it does not carry over into Section 1. As stated in Tiffany Productions v. Dewing, D.C., 50 F.2d 911, 914, “* * * there would seem to be no escape from the conclusion that the plaintiffs are nevertheless entitled to invoke the protection of section 1(d) on the ground that a ‘motion-picture photo-play’ is a ‘dramatic work’. * * * To the contention that, since section 5 has separate classifications for dramatic or dramatico-musical compositions and for motion picture photoplays, therefore section 1(d) is not to be interpreted as embracing the latter, it is sufficient to point out that the classification of section 5 is merely for the convenience of the copyright office and of applicants for copyrights. Such interpretation is strengthened by the last paragraph of section.5.” The next contention is that the alleged infringement did not constitute an appropriation of a material and' substantial portion of the copyrighted picture. The sequence in question consisted of 57 consecutive comedy scenes or 20% of the entire feature. According to the findings and the evidence, the whole sequence is intimately tied into the story, and is a main source of comedy for the picture as a whole. It plays an integral and essential part in carrying along the role of the star in the story. Further, the star-hero had been rejected by the heroine and the culmination of the magician coat episode was the motive and beginning of the reconciliation of the two, a necessity to the continuation and completion of the story. The trial court found that the sequence had been “copied and misappropriated” by the appellants, that the characters, characterization, motivation, treatment, action and sequence of action were the same and had been deliberately and wilfully copied in their picture “So’s Your Uncle”. The evidence fully supports this view. In 18 C.J.S. Copyright and Literary Property § 34, p. 176, the commentator concisely summarizes the, applicable principles: “ * * * a dramatic or dramatico-musical composition must possess some element: of originality in order to be copyrightable. Ordinary incidents, stock situations, and oft told tales, are the common property of all playrights; they cannot be monopolized by copyright, although * * * a new treatment of a common subject may be protected by copyright. Dramatization of existing works involves the independent exercise of intellectual powers, and hence the resulting product is copyrightable.” And at page 217: “A literal reproduction of the whole, or of substantially the whole, of a copyrighted work, if unauthorized, constitutes, an infringement, but an infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colorable alterations to disguise the piracy. Paraphrasing is copying and an infringement, if carried to a sufficient extent. Complete or substantial identity between the original and the copy is not required. Copying and infringement may exist, although the work of the pirate is so cleverly done that no identity of language can be found in the two works. In such cases the question of infringement resolves itself into a question of fact on the evidence as to whether or not the copyrighted work was used and paraphrased in the production of the later work.” And at page 218: “ * * * the reproduction of a work from memory of the original constitutes copying and is an infringement.” Here, we find 57 consecutive scenes lifted' almost bodily from the Lloyd product, not just the reproduction of an isolated single incident or event. The evidence is conclusive that the lifting was deliberately intended. Mere observation would illustrate the resemblance without any effort of dissection. See Dymow v. Bolton, 2 Cir., 11 F.2d 690. We quote briefly in the margin from Bruckman’s testimony. The whole picture need not be copied to constitute infringement. The mere copying of a major sequence is sufficient. In National Institute Incorporated for Improvement of Memory v. Nutt, D.C., 28 F. 2d 132, 135, the court quoted from West Publishing Co. v. Edward Thompson Co. C.C., 169 F. 833, 854, as follows: “ ‘To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement.’ ” See Anschl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, cert. denied 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 374, and Chicago Record-Herald Co. v. Tribune Association, 7 Cir., 275 F. 797, 799, in which it is said that the unauthorized use, copy or appropriation is not to be neutralized on the plea that “ ‘it is such a little one.’ ” The appellants seek to defend their action by setting out dissimilarities, changes, omissions, additions, and variations, in that there was a different locale, different actors, different characters, different dialogues, and different costumes which were used to effect a different purpose. Evidence of these differences is relevant upon the question of infringement, but if such differences are shown to exist, the question remains for the trier of fact to decide the issue. Pellegrini v. Allegrini, D.C., 2 F.2d 610. And in Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 2 Cir., 73 F.2d 276, 278, cert. denied 294 U.S. 717, 55 S.Ct. 516, 79 L.Ed. 1250, the court found the test of infringement to be whether the work is “recognizable by an ordinary observer as having been taken from the copyrighted source. Such is an infringement * * Slight difference and variations will not serve as a defense. In Nutt v. National Institute Incorporated for the Improvement of Memory, 2 Cir., 31 F.2d 236, 238, the court said “Copying is not confined to a literal representation but inclúdes various modes in which the matter of any publication may be adopted, imitated, or transferred with more or less colorable alteration.” Appellants urge the defense of “public domain”, claiming that all'material in that category may be used repeatedly without charge of infringement. However, in Fred Fisher, Inc. v. Dillingham, D.C., 298 F. 145, 146, 150, the court limits that claim as follows-: “Any subsequent person is, of course, free to use all works in the public domain as sources for his compositions. No later work though original, can take that from him. But there is no reason in justice or law why he should not be compelled to resort to the earlier works themselves, or why he should be free to use the composition of another, who himself has not borrowed. If he claims the rights of the public, let him use them; he picks the brains of the copyright owner as much, whether his original composition be old or new. The defendant’s concern lest the public should be shut off from the use of works in the public domain is therefore, illusory; no one suggests it. That domain is open to all who tread it; not to those who invade the closes of others.” See Detective Comics, Inc. v. Bruns Publications, Inc., 2 Cir., 111 F.2d 432; Stodart v. Mutual Film Corporation, D. C., 249 F. 507. In answer to the point that the sequence lifted is commonplace, we find no evidence that they had ever previously appeared in like combination, arrangement or form. The direct examination of Bruckman supports this ruling. The originality was displayed in taking commonplace materials and acts and making them into a new combination and novel arrangement which is protectible by copyright. The appellant’s next point is that the appellee’s sequence is merely “comic accretion” or consists merely of isolated “gags” and “stage business”, and that material of that description is not copyrightable. However, it has been held that such material may be so combined with events as to become subject to copyright protection. See Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49. Further, the trial court found that the scenes in question may not be classified as mere “stage business”, “gags”,- or “comic accretion”; that they may contain such details of acting as is sometimes so labeled, but the whole sequence may not be reduced to that nomenclature. The evidence supports the conclusion apparently reached by the trial judge that an original combination of 57 scenes constituting a sequence of vital importance to the story, containing character, dialogue, and action cannot be termed mere comedy accretion, etc. Cf., Caruthers v. R.K.O. Radio Pictures, Inc., D.C., 20 F. Supp. 906; Dymow v. Bolton, supra. The means of expressing an idea is subject to copyright protection, and where one uses his own method or way of expressing his idea, such adornment constitutes a protectible work. It is true that the mere motions, voice and postures of actors and mere stage business is not subject of copyright protection, but the sequence in question has literary quality in that it contains a story and is dramatic composition. See Chappell & Co. v. Fields, 2 Cir., 210 F. 864; Dymow v. Bolton, supra, 11 F.2d p. 692. The appellants rely largely on, Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, wherein it was contended that the appellants copied and appropriated substantial portions of the Witwer story including structure, plot, gags, sequences, etc. It was alleged that similarities between the motion picture and plaintiff’s literary work run throughout the story and especially in a particular comedy routine. The circuit court in reversing the lower court’s judgment held that there was no infringement on the g'round that there was not any deception to the public, that borrowing commonplace materials and using them differently does not constitute infringement, and further any subordinate sequence which is not an integral part of the story, as here, is not protected. None of these conclusions derogate from our conclusions in the instant case, for the court found a marked similarity between the sequences in “Movie Crazy” and “So’s Your Uncle”, such a similarity held to be lacking in the Witwer case; and the sequence before us played such an important and integral part of the story that the two cases are clearly distinguishable. In the cited case the judge found that there had been no duplication of scenes, and if there was even an approximate duplication, it was only of a subordinate portion and “utterly commonplace and incapable of copyright monopoly” so that copying would in such instance have no relevance. A mere reading of the cited case by one at all familiar with the instant one will reveal other vital distinguishable facts. The appellants cite Seltzer v. Sunbrock, D.C., 22 F.Supp. 621, 628, 629, contending that the sequence fails to satisfy the requisite of a “story”, in which the judge states: “The courts, in determining what constitutes a dramatic composition, have emphatically stated that there must be a story —a thread of consecutively related events —either narrated or presented by dialogue or action or both.” The sequence, as already illustrated, fulfills this requirement, as found by the trial judge. Appellant, Bruckman, in seeking to escape liability, urges that he is not liable as an infringer in that “he had nothing to do with the production, release, or exhibition of the alleged infringing photoplay.” The trial judge found that Bruckman contributed material to “So’s Your Uncle”, which was patterned after the sequence he had done in “Movie Crazy” while employed by Lloyd. It was arranged at the request of Universal, and he deliberately chose material which he knew had been used in the Lloyd picture. His contention is demonstrably meritless. We are of the opinion that the trial judge properly found that a writer is liable for damages as a contributory and participating infringer and joint tortfeasor. In the instant case Bruckman received no profits, but this does not relieve him from liability for the damages sustained by the appellee for his deliberate misappropriation of the appellee’s property as a writer and director. The case of Washingtonian Publishing Co. v. Pearson, 78 U.S.App.D.C. 287, 140 F.2d 465, relied upon by Bruckman to the effect that authors are not liable for profits which other infringers derive from the infringement, discusses profits only. There is no merit in the contention that Bruckman is not connected or in any way responsible for the infringements, i.e., the public showing of the alleged infringing film. He presents no authority to support his view that he is not liable for damages as a contributory infringer. The argument of Bruckman places emphasis on his statement, that “Bruckman did not occupy a position calling for the exercise of discretion, and.there was an intervening act on the part of his employer.” He cites several cases to the effect that a mere employee or workman or servant is not liable for damages for the infringement of his employer. However, Bruckman himself selected the material which infringed appellee’s picture and suggested that it be incorporated, and the mere fact that he told the producer where he had secured the material does not eliminate his own share of liability. The employer did not direct Bruckman to appropriate the material from another picture, nor did he or it make the selection. Thus he was acting entirely of his own volition in appropriating the material. Bruckman urges the point that a motion picture is not entitled to the protection of dramatic copyright unless it is based upon a copyrighted novel, stage drama, or book, and that there is no showing in the record that “Movie Crazy” was based on a copyrighted novel, drama, or book. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 1 Cir., 59 F.2d 70, is cited as his authority, and he quotes in his brief from the opinion of the district court in that case, 50 F.2d 908, 909, which distinguishes Kalem Co. v. Harper Brothers, 222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92, Ann.Cas.1913A, 1285, as follows: “The point decided was as to the scope of the copyright on the novel ‘Ben Hur’.” “The present question is different: Here the film itself is the subject of the copyright. Nobody questions that the plaintiff has the exclusive right to control copying it. If the film were an ordinary photograph or transparency, nobody would contend that the mere exhibition of it violated the copyright. The understanding of Congress that it does not do so in the case of a moving picture film is established with very unusual clearness. The point was explicitly raised and discussed in connection with the amendments of 1912.” In the cited case the court held that a motion picture constituted a dramatization of the copyrighted novel. Further, that it was a dramatic production within the copyright law when based on a copyrighted novel and thus an infringement of the copyright on the novel, since by the statute the copyright owner is given exclusive control of the dramatization and dramatic performance of his work. The amendments of the Copyright Act of 1912 followed the Kalem case, in which motion pictures were held to be copyrightable. The court in the cir-cult court opinion (59 F.2d 70) in the Bijou case discusses Tiffany Productions, Inc. v. Dewing, D.C., 50 F.2d 911, stating that the opinion in that case holds the projection of a photoplay film on a screen without the copyright owner’s permission to he an infringement. [This means that photoplays are within Section 1(d) as dramatic works which gives exclusive rights to exhibit films, etc.] The appellant further urges his claim by the contention that the court’s opinion expressly limits itself to motion picture photoplays, and does not refer to motion pictures other than photoplays, atid quotes from the circuit court’s opinion, 59 F.2d at pages 76, 77: “As we understand the term ‘motion picture photoplays’, they are motion pictures founded upon existing drama or dramatization of literary productions. In this respect they differ from ‘motion pictures’ under classification (m). The unauthorized exhibition of motion picture photoplays seems to have been consistently held, since the Kalem Case to be an infringement of a copyrighted dramatic work. * * * The bills of complaint do not allege that the copyrighted films are founded on copyrighted novels, dramas, scenarios, or other dramatic compositions. * * * By reference to the contracts it appears that we are dealing only with photoplays, which term connotes a moving picture founded upon a dramatic production. We hold that films which are founded upon copyrighted dramas or other dramatic compositions are protected under the provisions of section 1(d) of the Copyright Act and their unlicensed exhibition is an infringement of the copyrighted dramatic composition. We are not called upon to decide whether the unlicensed exhibition of a motion picture other than a photoplay would constitute an infringement of the copyrighted film of such a picture.” [That is, whether such motion pictures could be within Section 1(d).] The Bijou case was remanded to the district court, 3 F.Supp. 66, and the court was of the opinion that the circuit court did not require, in its opinion, a holding that an unlicensed exhibition of a print of a copyrighted motion-picture photoplay infringes the copyright only if the film is based on a copyrighted novel or dramatic composition. The court held that an unlicensed exhibition of a print of a motion-picture photoplay film, duly copyrighted, constituted an infringement, even though the film was not founded on a copyrighted novel or dramatic composition. The court, at page 73, slates: “Motion picture photoplay films are either dramatic works entitled to protection under subdivision (d) of section 1, supra, whose unauthorized performance is an infringement of the performing rights given to dramatic works, or they are nondramatic works entitled to protection under subdivision (b)i It would seem that they are the former. The decision in Tiffany Productions, Inc. v. Dewing, et al., supra, which the Circuit Court of Appeals commends, decides that motion picture photo-play films are dramatic works entitled to protection under subdivision (d).” Damages Appellant - Universal presents several points in opposition to the court’s award of damages: (1) The assessment of $40,-000 is based on speculation and conjecture rather than facts; (2) the testimony of the appellee’s president, Mr. Harold Lloyd, and two alleged experts of what the profits would be on the re-issue or re-make of the plaintiff’s motion picture cannot support the court’s award of damages; (3) there can be no recovery of profits of a new and untried venture, there being no provable data of past business to use as a basis for anticipated profits; (4) there is no evidence of any market value on the re-issue and re-make rights; (5) statutory damages may not be awarded where actual damages or profits are shown; (6) damages should not exceed $5,000 where there is no knowledge of infringement. Appellant-Bruckman alleges that no damage is proved since there was no data to prove -damage and' the damages awarded were based on conjecture. The court found “That by reason of said infringement by defendants and each of them upon plaintiff’s copyright, the Court finds that plaintiff has been damaged by defendants and each of them in the sum of $40,000.00 * * *.” “The Court further finds that plaintiff’s rights to reissue and remake said motion picture photoplay entitled ‘Movie Crazy’ were substantially damaged and impaired by reason of said infringing acts of defendants but that the extent to which said rights were impaired and damaged did not and does- not exceed the sum of $40,000.00.” The court concluded “That the plaintiff is not entitled to judgment awarding all or any portion of the profits which the defendant Universal Pictures Co. Inc. shall have made, received or derived from said copyright infringements by' reason of the fact that the actual damages suffered by plaintiff due to said copyright infringements exceeds the aggregate amount of profits made, received and derived by said defendant from such copyright infringements.” Section 25(b) of the Act of March 4, 1909, Ch. 320, 35 Stat. 1081, August 24, 1912, Ch. 356, 37 Stat. 489, 17 U.S.C.A. § 25(b), Copyrights, provides in part: “To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which’ the infringer shall have made from such infringement * * * or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated * • * The primary argument of the appellants rests on an alleged uncertainty of damages, and the claim that where damages are uncertain, they may not be recovered. The investment in the motion picture belonging to Lloyd was $652,000 and the particular sequence misappropriated by appellants cost approximately $188,000. There was substantial evidence showing that the infringed picture was valuable theatrical property and that the past profits and the cost of production were proper elements to consider in determining damages. The picture was exhibited in 6636 theaters throughout the United States. Several expert witnesses testified as to the values inherent in the picture, including the re-issue and remake rights, assertedly destroyed by exhibition of the infringing picture. Such evidence amply supported the trial court’s conclusions as to damage and the sum awarded. The authorities support the doctrine that uncertainty as to the amount and extent of damage will not deprive the appellee of his recovery. In Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 697, 53 S.Ct. 736, 739, 77 L. Ed. 1449, 88 A.L.R. 496, the court discusses a patent infringement in which it says, in part, “A patent is a thing unique. There can be ho contemporaneous sales to express the market valup of an invention that derives from its novelty its patentable quality, * * * But the absence of market value does not mean that the offender shall go quit of liability altogether. The law will make the best appraisal that it can, summoning to its service whatever aids it can command. * * * [Cases cited.] At times the only evidence available may be that supplied by testimony of experts as to the Jtate of the art, the character of the improvement, and the probable increase of efficiency or saving of expense.” At page 699 of 289 U.S. at page 39 of 53 S.Ct. “Value for exchange is not the only value known to the law of damages. There are times when heed must be given to value for use, if reparation is to be adequate. * * * The market test failing, there must be reference to the values inherent in the thing itself, whether for use or for exchange.” In Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 563, 51 S. Ct. 248, 250, 75 L.Ed. 544, it is said: “It is true that there was uncertainty as to the extent of the damage, hut there was none as to the fact of damage * * *. The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount. * * * In such case, while the damages may not he determined by mere speculation or guess, it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making were otherwise.” See Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 580, 90 L. Ed. 652, in which it is said: “The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. * * * “ ‘The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery’ for a proven invasion of the plaintiff’s rights. [Cases cited.]” The appellants object to the use of the plaintiff’s own testimony as to the value of the misappropriated property. The owner of personal property may always testify to its value. He may testify to the value of intangibles as well as the value of an advertising scheme, Brookins v. National Refining Co., 26 Ohio App. 546, 160 N.E. 97; also he may testify to the value of the good will of a business, White, Corbin & Co. v. Jones, 79 App.Div. 373, 79 N.Y.S. 583. Literary property is not distinguished from other personal property and is subject to the same rules and is likewise protected, Palmer v. De Witt, 47 N.Y. 532, 538, 7 Am.Rep. 480. California has held that plaintiffs may testify to the value of an unpublished manuscript prior to misappropriation in Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 90 P. 2d 371. See Yadkoe v. Fields, 66 Cal.App. 2d 150, 151 P.2d 906; Nathan v. King Features Syndicate, Sup., 32 N.Y.S.2d 519. We are of the opinion that there is substantial evidence in the case to show that property rights and present existing intrinsic property values have been impaired or destroyed. The testimony of the expert witnesses clearly establishes that the picture’s value has been lessened by the appropriation of an important sequence by the appellants, and it is common knowledge that the repeated use of comedy detracts from its force as amusement. The appellants object to the admission of expert testimony to show the value of the plaintiff’s (appellee’s] property and yet at the same time make use of alleged experts to sustain their position that the motion picture belonging to appellee had no value. Lloyd, president of the appellee corporation, as well as appellee’s other witnesses, were found qualified to render testimony as to the value of appellee’s motion picture before and after the misappropriation of the sequence in question. See McGowan v. American Pressed Tan Bark Co., 121 U.S. 575, 7 S.Ct. 1315, 30 L. Ed. 1027; General Paint Corporation v. Kramer, 10 Cir., 68 F.2d 40; Gotham Silk Hosiery Co. v. Artcraft Silk Hosiery Mills, 3 Cir., 147 F.2d 209, 216. In the latter case the court said that courts have generally permitted the use of expert testimony to ascertain the extent of damages when documentary evidence fails. The second circuit in Sheldon v. Metro-Goldwyn Pictures Corporation, 106 F.2d 45, upheld the use of expert testimony even if it only amounted to estimates, the case being affirmed by the Supreme Court in 309 U.S. 390, at page 408, 60 S.Ct. 681, at page 688, 84 L.Ed. 825, in which that court states: ■ “By virtue of an extensive experience, they had an intimate knowledge of all pertinent facts relating to the production and exhibition of motion pictures. Nor can we say that the testimony afforded no basis for a finding. What we said in the Dowagiac case is equally true here, — that what is required is not mathematical exactness but only a reasonable approximation. That, after all, is a matter of judgment and the testimony of those who are informed by observation and experience may be not only helpful but, as we have said, may be indispensible * * *. We see no greater difficulty in the admission and use of expert testimony in such a case than in the countless cases involving values of property rights in which such testimony often forms the sole basis for decision.” See Julian Petroleum Corporation v. Courtney Petroleum Co., 9 Cir., 22 F.2d 360, holding expert testimony as to value of oil that, could have been produced if the well had been completed admissible as to damages. The motion picture “Movie Crazy” was a world wide success when first shown, and it realized $400,000 profits at the time of a world depression. These facts are proper items for consideration of value. The appellants seek to prove that where personal property has been injured that unless a market value can be shown, damages cannot be recovered. In opposing such a view we find the authorities support the rule as it is stated in 15 Am.Jur. 554-555: “The fact that personal property which is injured or destroyed by the wrongful or negligent act of another, has no market value, does not restrict the recovery to nominal damages only; its value or the plaintiff’s damages must be ascertained in some other rational way and from such elements as are attainable. In such case the proper measure of damages is generally its actual value or its value to the owner. The value of an article may be shown by proof of such elements or facts as may exist — such as its cost, the cost of reproducing or replacing it, its utility and use * jjC * ’> See Sinclair Refining Co. v. Jenkins Petroleum Process Co., supra, wherein the Supreme Court states that the absence of market value does not eliminate liability, and that where none exists the court uses the best evidence it has, such as the testimony of experts and values inherent in the thing itself. In Standard Oil Co. of New Jersey v. Southern Pacific Co., 268 U.S. 146, at page 156, 45 S.Ct. 465 at page 467, 69 L.Ed. 890, the court, in discussing a case where no market value of the article in question existed, said: “The value of the vessel lost properly may be taken to be the sum which, considering all the circumstances probably could have been obtained for her on the date of the collision * * *. The ascertainment of value is not controlled by artificial rules. It is not a matter of formulas, but there must be a reasonable judgment having its basis in a proper consideration of all relevant facts.” Expert testimony was admitted to show value. See Agency of Canadian Car & Foundry Co. v. Pennsylvania Iron Works Co., 3 Cir., 256 F. 339; Sheldon v. Metro-Goldwyn Pictures Corp., supra. The appellants argue that the damages found to have been suffered by appellee were rendered uncertain because of Columbia’s infringements in “Local Boy Makes Good”. Columbia Pictures Company produced a short by this title in which the sequence here in question was incorporated for comedy. It is alleged that the court failed to find the extent to which the use of the same material, the magician’s coat sequence, in the Columbia picture damaged plaintiff. The court in restricting its finding of $40,-000 damages to the infringements by Universal and Bruckman in the picture “So’s Your Uncle”, took the effect of “Local Boy Makes Good” into consideration and expressed the opinion that this so-called “short” did minimize the damage suffered by Lloyd — a further factor in the estimate, of damages. There was also testimony that the Columbia picture “short” had not affected the value of appellee’s “feature” motion picture in that the two were in different classes. In fact, the appellants attempt to show that no damage was suffered by the appellee by either picture. The appellants seek to restrict recovery to $5,000 in that Universal established that it was unaware of the infringement, and it could not have been reasonably foreseen. Section 25(b) of the Copyright Act, supra, provides in part: “ * * * and in the case of an infringement of a copyrighted dramatic or dramatico-musical work by a maker of motion pictures and his agencies for distribution thereof to exhibitors, where such infringer shows that he was not aware that he was infringing a copyrighted work, and that such infringements could not reasonably have been foreseen, the entire sum of such damages recoverable * * * shall not exceed the sum of $5,000 * * * nor shall the limitation as to the amount of recovery apply to infringements occurring after the actual notice to a defendant, either by service of process in a suit or other written notice served upon him.” The court, however, made a finding contrary to the contention as follows: “ * * * that defendants and each of them at all times were fully informed and had full knowledge that they were infringing upon plaintiff’s copyright and the court further finds that the defendant Universal Pictures Company, Inc., could and should have reasonably foreseen said infringements upon plaintiff’s copyright.” The evidence fully supports the finding, in that it shows that both Bruckman and Yarbrough, the producer, were fully aware that the infringing sequence was “suggested and patterned after” the picture “Movie Crazy”. The appellant-Universal is fully chargeable with notice and knowledge of facts known to its agents and employees while acting’ within the agency and employment. Fletcher, Cyclopedia of Law of Private Corporations, Vol. 4, Ch. 42, Par. 2215, p. 3430, and cases cited therein. There is no limitation of the kind in question where the court is awarding actual damages — the limitation in question follows the section on statutory damages, which are not involved herein. It is contended by appellant-Universal that the exclusion of the testimony of Harold Lloyd and the witness Hirliman was error, and cites Rule 43(b) of the Federal Rules of Civil Proc., 28 U.S.C.A. following section 723c, as follows: “A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him * * * in all respects as if he had been called by the adverse party.” The appellant’s counsel called Lloyd as its own witness for purposes of expert witness testimony. Appellant’s counsel attempted to impeach him. This, the court would not permit, and counsel was so informed. The testimony is as follows: “Mr. Abeles: But if your Honor please, I am laying a foundation for certain testimony now. I promise your Honor this is very material. “The Court: With that assurance I am going to let you proceed with the question, but it is understood this witness is your witness and you will be bound by his testimony. “Mr. Abeles: That is correct sir. “ * * * * * * “The Court: I am not going to permit you to impeach your own witness. “Mr. Abeles: I respectfully submit he is not my witness. “The Court: Yes, he is. You called him as your witness. He was excused and I told you this case was continued for a specific purpose, that is, to hear two experts on each side and you [counsel for appellant] issued a subpoena for this man and brought him into court.” The counsel for the appellant sought to show by testimony of the witness-Lloyd in another case that the story of his pictures meant nothing, only the comedy which was created, for his personality was important, that is, that the drawing power of his pictures was the personality of Lloyd as a star — and that since he was not a present-day box office attraction, the picture did not have the values that Lloyd was testifying to as an expert witness for the appellant. The appellant seeks to have it determined error to have refused to admit said, testimony. Appellant’s counsel attempted to avoid, minimize and contradict the testimony of this witness, that the reissue rights et cetera of certain of the witness’ pictures were of great value, and the court would not so permit. The appellant’s counsel agreed to call Lloyd only for purposes of gathering expert testimony, and it was for this purpose that the court continued the case. The court continued the case to permit appellant to call Harold Lloyd (and others) for expert testimony as to the damage incurred. There was no abuse of discretion in the court’s refusal to permit the questioning of this witness concerning another Lloyd picture to discredit his testimony. The testimony of Hirliman was offered to establish that he purchased the re-issue rights to one of the appellee’s pictures for only $3,500 and that it had no value as no exhibitor would take the picture, there being no demand for the reissue or remake rights of pictures of this nature, it not being a picture based on , a stage play or novel. The court refused to permit testimony of the amount paid" for the picture because “it is a collateral matter and in the second place, if the re-issue rights of a picture were sold we do not know whether it was comparable to the picture in issue. It does not mean anything to the court.” An objection to a question' of whether the witness was able to sell the picture to an exhibitor was sustained.- The picture was a silent one, and it was suggested that it would not have re-issue value in the days of talking pictures, at which time it was purchased, so that the testimony was not material to this case, which involves re-issue value of a- talking picture. The proffered testimony was properly excluded as it had little or no relevance in determining the value of the instant picture. The appellant-Universal finally contends that the doctrine of laches and estoppel may be invoked to preclude recovery of damages or profits. It is alleged that there was an unexplained delay of 15 months before appellee asserted its claim of copyright infringement. The appellant rests its case on the seasonable nature of the alleged infringing work. The appellant contends that the appellee has the burden of showing its ignorance of the alleged infringement since December 3, 1943, and when and how the knowledge was first obtained, citing Window Glass Mach. Co. v. Pittsburgh Plate Glass Co., 3 Cir., 284 F. 645, cert. denied 261 U.S. 623, 43 S.Ct. 518, 67 L.Ed. 832, to the effect that an unreasonable delay so places the burden. It is a reasonable rule that a copyright owner may not deliberately delay his prosecution and thereby speculate without risk with another’s money to determine the success of the exploitation, but the evidence herein does not support such a premise. Appellant cites Haas v. Leo Feist, Inc., D.C. 234 F. 105, 108, to the effect that it is inequitable for an owner of a copyright, having notice of an infringement, to remain inactive while infringers spend large sums of money and then intervene only when the speculation proves a success. However, the quotation used is followed by other pertinent language. “If the defendant be a deliberate pirate this consideration [laches] might be irrelevant, and I think it such * * And as stated in Window Glass Mach. Co. v. Pittsburgh Plate Glass Co., 3 Cir., 284 F. 645, “Mere delay will not ordinarily bar a suit for an injunction against a naked infringer.” Lloyd testified that he objected to the infringement “not very long” after his' attention was directed to the infringement, but that 'he 'did not recall the exact date he discovered it. On March 20, 1945, notice was written to the appellant of the fact of an infringement of a picture which appellant released several months before. Appellant further contends that this course of action constituted an equitable estoppel which prevents recovery in damages, that is, that a long period of inaction constitutes such laches as to create an equitable estoppel. The appellant cites Pollit-zer v. Foster, 6 Cir., 59 F.2d 901, wherein such a rule was presented but with the further statement that the delay of action by the copyright owner must be of such a character as to justify a belief on the part of the infringer that there is assurance of an immunity from a claim of liability. The trial judge did not find such a delay in the instant case, and we do not think his discretion was abused. The appellant-Universal admitted in its answer that they received the written notice testified to. It is contended that the notice was offered by appellants into evidence to “establish an estoppel.” Such a purpose was not shown nor did they in any way plead estoppel. Further, no one objected to the introduction of the notice. Such an instrument would ordinarily be shown to prove that there was a notice sent and received at that particular date. Appellee would not stipulate that it was the first notice of such a claim since it contends that the appellants were under continual notice of the misappropriation. It is asserted that the defense of estoppel and laches need not be affirmatively pleaded where the issue is tried by express or implied consent of the parties. The court received the evidence offered on the subject and decided there was neither laches not estoppel. The question can only be: Did the evidence support the adverse finding? Universal asserts that the finding that the exhibition of its picture continued after notice of infringement constitutes reversible error. The court in making the finding of facts states that “The court furthermore finds that the defendant-Universal Pictures Co. Inc., continued to release and distribute and cause to be exhibited to the general public throughout the United States, said motion picture entitled ‘So’s Your Uncle’ with notice and knowledge of plaintiff’s rights in the premises and of the continuing infringements upon plaintiff’s copyrights and said defendant will continue to infringe upon plaintiff’s copyright upon its motion picture photoplay entitled ‘Movie Crazy’ unless permanently restrained and enjoined from so doing by order and injunction of this Court.” Such a finding was appropriate in support of an injunction which the court found to be necessary for the protection of Lloyd’s rights. The defendant-appellant - asserts that the plaintiff-appellee stipulated upon trial that upon receipt of the notice of infringement the exhibition of the picture of defendant’s picture had been stopped, and the court in its finding contradicted the stipulation and committed reversible error. The testimony to which appellant refers was in fact a colloquy between attorneys in the case and is as follows: “Mr. Abeles: We sent out the — the defendant Universal Pictures Company sent out instructions to all their exchanges to stop the exhibition of the picture until this matter had been determined. “Mr. Fendler: I will stipulate such instructions were given. I will not stipulate the instructions were complied with. “Mr. Abeles: To the best of our knowledge 1hey were complied with. “Mr. Fendler: You do not contend the plaintiff is not entitled to an injunction, do you? “Mr. Abeles: No. “Mr. Fendler: Very well, we will so stipulate. Shall I call my witness ?” The testimony speaks for itself and answers the contention of the appellant. This testimony shows that the appellants did not question the appellee’s right to an injunction and the questioned finding is in accord therewith. The appellant-Bruckman relies for the most part on the contentions made by appellant-Universal. He obj ects to the use of opinion evidence in that one side contends for $300,000 damages due to the infringement while the other side asserts that there isn’t any damage and claims that the $40,000 set by the court was a mere guess. He independently asserts that Section 1(d) does not give a monopoly of remake rights to the plaintiff for his picture “Movie Crazy”, quoting from White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1, 17, 28 S.Ct. 319, 323, 52 L.Ed. 655, 14 Ann. Cas. 628, to the effect that the reproduction of sheet music by music roll was not an infringement of the copyright of the music with the following statement: “The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such conception may be, but has provided for the making and filing of a tangible thing, against the .publication and duplication of which it is the purpose of the statute to protect the composer.” And in Corcoran v. Montgomery Ward & Co., 9 Cir., 121 F.2d 572, 573, the court states: “Appellant relies also on the provisions of subsection (b), giving the exclusive right ‘to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work * * *.’ It is claimed that the recording with music constitutes the making of another ‘version’ of the poem, and also amounts to a dramatization of it. “The precise meaning of the phrase ‘any other version’ appears not to be settled by the decisions. The phrase has been held to apply to abridgements. * * * [Cases cited.] It has been suggested that it refers to versions of a literary nature. Ladas, The International Protection of Literary and Artistic Property (1938) p. 779. However that may be, we think what was done here does not constitute the making of another version of the poem within the meaning of the statute. In the committee report referred to in the above note it was said that subsection (b) is ‘consistent with the existing law as construed by the court.’ Something new would be imported into the law if appellant’s position were to have judicial approval. White-Smith Music Pub. Co. v. Apollo, supra. And, if the phrase were to be construed so broadly as appellant claims it should be, the many provisions of the act dealing with particular versions would be rendered superfluous, as, for example, the provision in subsection (d) giving the proprietor of a dramatic work a monopoly of the right ‘to make or procure the making of any transcription or record thereof.’ ” In Arnstein v. Edward B. Marks Music Corporation, 2 Cir., 82 F. 2d 275, the court said: “Verbally our error arose from not reading the words, ‘the same,’ in Rev.St. 4952, as referring back to the words, ‘the work.’ The ‘sole liberty of printing, publishing §.nd vending’ the ‘work’ means the liberty to make use of the corporeal object by means of which the author has expressed himself; it does not mean ‘the sole liberty’ to create other ‘works,’ even though they are identical. Were it not so the man who first made_ and copyrighted a photograph under section 5(j) of title 17 U.S.Code, 17 U.S.C.A. § 5(j), could prevent every one else from publishing photographs of the same object.” We do not see, how these cases rule out the remake rights of a motion picture under section 1(d) which gives the right “to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, .produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever * * In Bruckman’s reply brief, it is contended that the court impliedly held the expert testimony to be untrue since his figure differed from those figures suggested by the expert witnesses. This is not true, since the court made allowances for certain limiting factors to scale down the damages. The court did not make an arbitrary finding of value and completely disregard the opinion of the experts, for it considered other evidence which limited the values placed thereon by the experts, such as the Columbia short, the age of the picture, star appeal, the wide margin between cost of picture and claimed damages, and several other such limiting factors. There was also considerable evidence recognized which supports the value placed thereon, such as a present demand and an open market for films successfully displayed, the present day number of re-issue and remake pictures being advertised, and the fact that people remember the picture for this sequence. The judge determined actual damages in finding the lessened value of the-copyright by reason of the infringement Cross-appeal Lloyd brings a cross-appeal from the judgment for damages, as found by the trial' court. It first contends that there was-error in sustaining objections to its offer of proof relating to the value of re-issue and remake rights in comparable sound and1 talking motion pictures starring Harold Lloyd. The offer of proof as to the alleged' value of another picture was first suggested' by Lloyd’s counsel and the court stated that the offer might be submitted in writing at. a later time. When the writing was submitted after considerable length of time, the court in its discretion determined that the evidence should be rejected, such evidence being irrelevant. We think the court. did not err in the circumstance of our case by holding that the value of another picture was inadmissible to prove the value of the instant picture. Lloyd asserts that the damages are inadequate, having pleaded general damages in the sum of $200,000 and special damages arising from the destruction of re-issue and remake rights in the sum of $200,000. The trial court found that Lloyd was damaged by Universal and Bruckman in the sum of $40,000. As stated in Lloyd’s cross-appeal brief, “It is plaintiffs [Lloyd’s] contention that general damages might be properly found by a court predicated upon evidence of the nature and value of plaintiffs property; the scope and extent of its misappropriation, and proof of the number of infringing performances in theaters in which the plaintiffs property has been used without its consent. (See United States Frumentum Co. v. Lauhoff, 6 Cir., 216 F. 610, at page 617, where 'general damages’ are expressly defined as ‘damage not resting on any of the applicable, exact methods of computation but upon facts and circumstances which permit the jury or the court to estimate in a general but in a sufficiently accurate way the injury to plaintiff caused by each infringing sale.’)” The evidence as to general damages in support of Lloyd’s contention consists of the following: The motion picture production cost of $652,853.86, distribution cost of $414,010.14, 21 months of production, cost of 11 writers ($66,773.67) to write the story; the gross income from distribution of $1,439,182.21 and the net profit of nearly $400,000 during the depression period; the picture was released in more than 50 countries; the sequence infringed upon, cost the appellee approximately $188,000; the infringing picture was exhibited in 6,636 theaters throughout United States with approximately 30,000 infringing performances. The fact that the