— Yes! Yes that's why I'm relieved but the main thing, listen. My play, I'll be able to produce it myself now, isn't that the marvelous irony in the whole thing? This piece of, sitting here tonight eating popcorn watching this piece of trash on television paying to put my play up there on the stage where it should have been in the first place yes the worse the movie is the better, the more tawdry, vulgar, bloody it is the better, that's justice isn't it? if you want poetic justice?
— Oscar look, that's what I came out to…
— No but the point of it, the whole point of it Harry listen. All this trouble and pain and years of misunderstanding with Father it's been mainly my fault, it's all been my fault for having no faith in him because I thought he didn't have any in me and this play and all of it when he was standing behind me all the time because that's true isn't it? that he wrote the appeal?
— Had to be, it had his handprints all over it that's what had Mudpye climbing the walls, little bastard expected to get up there with his long fancy oral argument and give those shrewd old hands on the bench a lesson in State law preempting the Federal statutes I don't think they gave him three minutes. One look at that appeal brief they didn't doubt for a second it had come from a colleague, never prove it of course but I think they knew where it came from, turned Mudpye's performance upside down on its face and left him out in the cold that's why he's out for blood in the second round here. I could have called you but I thought I'd better wait till I could come out and run through it with you in case you've got any questions, afraid you won't be too pleased with what they've come up with here reviewing the master's decree on your damages. — Who. All the profits yes, they who.
— The appeals court Oscar, look. You understand how this whole legal proceeding works don't you? He had out a folder, snapping the case closed on his lap — what you've got here, this is your final decree from the Second Circuit entered on the accounting they directed when they reversed the district court and it went to the master to determine your award, mind if I turn this thing off? and he was up again in the flickering light of the silent screen where a lively fellow fled the torments of diarrhea in what appeared to be an international airport, — told you they'd come back trying to get your award reduced didn't I? and he sat down again, now at the foot of the sofa opening the folder — now, you see here. You were awarded all the profits they made from exhibiting the picture The Blood in the Red White and Blue and the question is whether that was correct.
— Well of course it was, they stole my work and have to give me all their profits in damages it's that simple, isn't it?
— No. They insist that the profits should have been apportioned. Here, that the recovery of the author of a copyrighted work ought to be limited to those profits which result from its exploitation; and that since the value of the picture here depended only in very small measure upon those parts which the defendants have been found to have lifted, they should be accountable for only a correspondingly small part of the…
— Well that's, they can't do that no that's ridiculous, they stole it didn't they?
— Point is Oscar, all right look. Write a poem, somebody lifts it, publishes it elsewhere with his name on it simple case of plagiary, same words printed on a piece of paper, a movie's something else, the profits come from the people who pay to see it with the hope of enjoyment don't they? He thrust the stapled pages at the quavering hand on the quilt, — here, look. That enjoyment, which is one source of its further popularity, is made up of many factors: the actors, the work of the producer and director, the story, the scenery and costumes. The attraction and the hope which first draws them are principally aroused by advertisements, and the reputation of the stars and the producing company. These factors have no unit common to all, and are therefore incommensurable; in that, the situation is not different from the usual case of copyright infringement where the pirated material has been mixed with matter in the public domain. They've usually just tried to get the net profits down as low as possible, what the court's saying this time is that no matter how little the defendants say the value of the picture depends on what they stole, it's right here, the infringer carries the burden of disentangling the contributions of the several factors which he has confused. Your appeal didn't bring up that point and here, the court undertook sua sponte to declare that the plaintiff should recover all the profits and they moved to modify that so they could prove the value of their own contribution, move over a little so I can get my jacket off will you?
— Their own contribution! gone in a spasm of coughing, — nothing but a lot of, of…
— Gets into patent accountings here where the infringer has to separate the profits from his own contribution where it's just as unfair here to cast the infringer for all the profits as it would be to deny the patentee or the author any recovery because he can't separate his own contribution so the court puts the burden on them, you see? riffling through the pages, — what this whole thing is all about?
— No.
— All right, look. They claim everything they can and throw in the kitchen sink, some of it's allowed some of it isn't. Down here for instance, whether the profits from showing it outside the United States should be included, the court holds that the plaintiff, you the plaintiff, had an equitable interest in the negatives the minute they were made in this country where it was a tort so the law impresses them with a constructive trust. Here the master has used the cost of production as the basis for figuring the distribution cost the defendants have put in under overhead expenses they've tried to spread over their other pictures and the court holds for the master, same thing here where they've disallowed a five million dollar studio overhead item for stories or screenplays they bought that were failures or weren't made at all I, just let me get up for a minute? drawing away from the seething breath mingling with his own, — little early for a drink but that's a long drive out here, just give me a minute while you run through the rest of this?
— Harry? when he came back swirling ice in a glass, standing there loosening his tie — listen, I can't read all this, interest disallowed on a loan made to Erebus from one of their subsidiaries where the master has included in the overhead only the interest on the plant investment used in making the picture? that overhead that doesn't assist in the production of the infringement shouldn't be credited to the infringer and this allowance for continuities that were scrapped and pictures that were made but never shown and all the rest of, and this. And this Harry? legal costs? where the master allows only those legal expenses directly incurred by the, but that's me! I mean that's you, that's your law firm defending them against me for stealing my…
— No look Oscar, a lot of legal expenses go into a… — No listen Harry that's Mudpye getting paid to sit right here for that deposition twisting around everything I said so I'm supposed to be paying him hundreds of thousands of dollars for cutting my own throat while the…
— Not the way it works Oscar, he was probably priced out at around one eighty an hour but they'd be billed by the firm for…
— Yes for destroying everything I, for destroying me!
— No look Oscar, look, all kinds of legal expenses connected with a venture like this one, contracts, leases, insurance all just the nuts and bolts of the industry, not an art form it's an industry you see that by now don't you? and he sat back in the chair at a safe distance — you can see it right there. They can only charge back what they bought and paid for making the picture, but they can't charge for their work exploiting what they stole and that's where the court is protecting you but they didn't steal the battle at Antietam did they? Cast of thousands all those special effects how many millions do you think they…