Charles Evans Hughes

“ The court was resolved 'to avoid the one certainly unjust course of giving the plaintiffs everything, because the defendants cannot with certainty compute their own share'. The court would not deny 'the one fact that stands undoubted', and, making the best estimate it could, it fixed petitioners' share at one-fifth of the net profits, considering that to be a figure 'which will favor the plaintiffs in every reasonable chance of error'.
First.-Petitioners insist fundamentally that there can be no apportionment of profits in a suit for a copyright infringement ”

“ Both the Copyright Act and our decisions leave the matter to the appropriate exercise of the equity jurisdiction upon an accounting to determine the profits 'which the infringer shall have made from such infringement'.
Second.-The analogy found in cases of patent infringement is persuasive. There are many cases in which the plaintiff's patent covers only a part of a machine and creates only a part of the profits. The patented invention may have been used in combination with additions or valuable improvements made by the infringer and each may have contributed to the profits. ”

“ In addition to the drawing power of the 'motion picture stars', other factors in creating the profits were found in the artistic conceptions and in the expert supervision and direction of the various processes which made possible the composite result with its attractiveness to the public. ”

“ The amendment, so far as it relates to the reception of expert testimony, recognized and cannot be deemed to enlarge the rules already applied in courts of equity, and the fact that the copyright law was not similarly amended cannot be considered to detract from the jurisdiction of the Court to receive similar evidence in copyright cases whenever it is found to be competent. ”

“ And in view of that impossibility, the defendant, being responsible for the blending of the lawful with the unlawful, had to abide the consequences, as in the case of one who has wrongfully produced a confusion of goods. ”

“ The Court observed that 'while recognizing the impossibility of reaching a conclusion that is mathematically exact', there has been received, in addition to other relevant evidence, 'the testimony of experts as to the relative costs of doing a local and through business'. Chicago, M. & St. P.R. Co. v. Tompkins, 176 U.S. 167, 178, 20 S.Ct. 336, 340, 44 L.Ed. 417. The Court thought that 'What is permissible in an effort to separate costs may also be done in a patent case where it is necessary to separate profits'. ”

“ That novel was also based upon the story of Madeleine Smith and the motion picture rights were bought by respondents. There had been negotiations for the motion picture rights in petitioners' play, and the price had been fixed at $30,000, but these negotiations fell through.
As the Court of Appeals found, respondents in producing the motion picture in question worked over old material; 'the general skeleton was already in the public demesne. A wanton girl kills her lover to free herself for a better match; she is brought to trial for the murder and escapes'. ”

“ Statutory provision for the recovery of profits in patent cases was enacted in 1870. [2] The principle which was applied both prior to this statute and later was thus stated in the leading case of Tilghman v. Proctor, 125 U.S. 136, 146, 8 S.Ct. 894, 899, 31 L.Ed. 664: 'The infringer is liable for actual, not for possible, gains. The profits, therefore, which he must account for, are not those which he might reasonably have made, but those which he did make, by the use of the plaintiff's invention ”