Summary
considering a common-law claim for misappropriation of a literary character
Summary of this case from Dethmers Manufacturing Company v. Automatic Equip. Mfg.Opinion
March 6, 1975
Judgment, Supreme Court, New York County, entered on January 28, 1972, in favor of plaintiff, after a jury trial, unanimously modified on the law and on the facts, to the extent of remanding the matter for a new trial only on the issue of damages, including punitive damages, if any, and otherwise affirmed. Plaintiff-appellant-respondent shall recover of defendants-respondents-appellants one bill of $60 costs and disbursements of these cross appeals. The trial court erred in excluding the testimony offered by plaintiff and his expert witness, by which plaintiff sought to establish the reasonable value of the literary character created by him and misappropriated by defendants and in limiting plaintiff's recovery to defendants' profits. The proper measure of damages flowing from defendants' wrongful appropriation of plaintiff's literary property is the reasonable value thereof and "Opinion evidence of the value of the property" is admissible. ( Robbins v. Frank Cooper Assoc., 14 N.Y.2d 913, 915.)
Concur — Stevens, J.P., Lupiano, Capozzoli and Lane, JJ.