OPINION
Johnny Stewart started his business, Johnny Stewart Game Calls, Inc. (Game Calls), by venturing into the wild and either recording animal sounds in the animals’ natural habitats or capturing the animals to record their sounds in a more conducive setting. The recording process itself was long and labor intensive. Stewart travelled extensively to gather a variety of sounds. To get a satisfactory sample, he would record an animal on several occasions, attempting to eliminate unwanted background noise such as an airplane overhead or a passing automobile. Even then, the resulting animal sounds might not be adequate on any given occasion. To overcome these problems, the sample of several seconds would be edited and “looped” repetitiously to occupy a full-length cassette tape. Hunters and photographers purchased Stewart’s tapes and used them to draw animals into close range.
United States Sporting Products, Inc. (Sporting Products) allegedly copied sounds from nineteen of Stewart’s tapes and marketed them in competition with Game Calls. Gerald Stewart, Johnny Stewart’s son and president of Game Calls, confronted John Bowling (Bowling), Sporting Product’s president, on several occasions asking that Bowling cease his practices. Bowling insisted that he was doing nothing improper and that he was purchasing his sounds in good faith from a third party. Game Calls brought this suit. After finding that Sporting Products and Bowling misappropriated recordings of various animal sounds gathered and marketed by Game Calls, a jury assessed $209,000 in actual damages and $482,125 in exemplary damages. The court entered judgment against Sporting Goods and Bowling for actual damages, exemplary damages, attorney’s fees for defending a counterclaim, and permanent injunctive relief requiring them to stop selling the tapes and to recall tapes from distributors and dealers they could identify.
POINTS ON APPEAL,
Sporting Products and Bowling bring six points of error:
1. The court erred in rendering judgment for Game Calls because it had no cause of action against Bowling and Sporting Products for the claimed misappropriation.
2. The court committed reversible error by commenting on the weight of the evidence.
3. The court erred in rendering judgment against Bowling because there was no jury finding that he knowingly participated in the claimed tortious conduct.
4. The court erred by failing to require specific findings of both liability and damages against both Bowling and Sporting Products.
5. The court erred in rendering judgment for exemplary damages because there was no jury finding that Appellants acted with “actual malice.”
6. The court erred by not ordering a remittitur of exemplary damages.
We will overrule all the points and affirm the judgment.
MISAPPROPRIATION
In their first point, Appellants contend that Game Calls failed to state a claim for misappropriation as it is recognized in Texas. They make three arguments in support of this point. First, they cite
Loeb v. Turner,
RECOGNITION OF CAUSE OF ACTION
We first note the difference between unfair competition as a general area of law and the specific causes of action that it subsumes. “The law of unfair competition is the umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters.”
American Heritage Life Ins. Co. v. Heritage Life Ins. Co.,
The tort of misappropriation takes root in federal common law. The Supreme Court first espoused a guideline for misappropriation in
International News Service v. Associated Press,
[T]his defendant ... admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is saleable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown ... with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself and a court of equity ought not to hesitate long in characterizing it as unfair competition in business.
Id.
at 239,
The Supreme Court’s reasoning was later adopted by a Texas court in
Gilmore v. Sammons,
In support of their proposition that the misappropriation doctrine has not been expressly embraced in Texas, Appellants cite
Schuchart &
Assoc.
v. Solo Serve Corp.,
In
Wissman,
the issues before the court were whether the defendants “misappropriated” plaintiff’s ideas in violation of trade-secret law and whether the defendants “misappropriated” the ideas for the purposes of
*218
palming off. The court held that there could be no trade secret in an idea of general knowledge in an industry; thus, there could be no wrongful taking.
Wissman,
The
Schuchart
court similarly misconstrued
Furr’s Inc.
In characterizing the holding in
Furr’s,
the
Schuchart
court stated, “[T]he Court suggested that the misappropriation must be of a trade secret or in violation of a confidence.”
Schuchart,
Finally, although the
Schuchart
court correctly characterized the holding in
Loeb
as denying a property interest in news items,
Loeb
was mistaken in another facet of its analysis.
Loeb
correctly stated that the news itself cannot become the subject of a property right belonging exclusively to any one person but failed to distinguish between newsworthy events as they exist in the public domain and the news as it is reported as the product of one’s efforts.
Loeb,
Both business competitors and the public can gather and communicate information squarely in the public domain such as newsworthy events or, as in this case, animal sounds. For example, Sammons and the International News Service could have gathered and reported the news events from a source other than their competitor’s publications. Similarly, Appellants could have refrained from using Game Calls’ tapes as a source of information. By recognizing a property right in the product of one’s effort, misappropriation does not extend any property interest to matters in the public domain.
We recognize the elements of misappropriation as: (i) the creation of plaintiffs product through extensive time, labor, skill and money, (ii) the defendant’s use of that product in competition with the plaintiff, thereby gaining a special advantage in that competition (i.e., a “free ride”) because defendant is burdened with little or none of the expense incurred by the plaintiff, and (iii) commercial damage to the plaintiff.
See Synercom Technology, Inc.,
PUBLICATION DEFENSE
Appellants ask that we follow the rationale of
Loeb
and allow publication as a defense.
See
First, the court noted that the stations were over one thousand miles apart and in no way competed or interfered with each other, hence no claim under unfair competition could have arisen. This fact alone refutes a misappropriation claim because the element of competition is not satisfied; however, the court further stated that, once uncopyrighted news items are published, they become available for everyone’s use.
Id. Vernon Abstract Co. v. Waggoner Title Co.,
on which the
Loeb
court relied as authority for this proposition, dealt with the attributes of common-law property rights in a manuscript.
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Id.; Vernon Abstract Co. v. Waggoner Title Co.,
“time-value” defense
Citing
Synercom Technology,
Appellants argue that, to the extent misappropriation is recognized in Texas, it is limited to matters with “time value” such as news items. We disagree.
See
REMEDY FOR MISAPPROPRIATION
Finally, Appellants argue that, even if
Gilmore
correctly states Texas law on misappropriation, equitable relief is the only remedy to which Game Calls is entitled. We disagree. Gilmore asked for temporary and permanent injunctive relief as well as for the value of 374 news items at $1.50 each.
Gilmore,
It would be incongruous for us to recognize a monetary value of property for the purposes of stating a claim, but not for the purposes of granting relief. If only in-junctive relief were available for a misappropriation claim, tortious conduct would take the posture of an ordinary business decision allowing a defendant to keep his ill-gotten gain. Further, to allow compensatory damages without exemplary damages would serve as no deterrent because a defendant would, in effect, be only made to return what was not his in the first place. We hold that both compensatory and exemplary damages *220 are recoverable for misappropriation in addition to injunctive relief.
We overrule point one.
COMMENT IN COURT’S CHARGE
Appellants argue that the trial court committed eiTor by commenting on the weight of the evidence in the charge. The portion of the jury charge at issue reads:
You are instructed that when an individual or business creates a product through extensive time, labor, skill and money, that person or business is protected by law from the misappropriation of that product by others in competition who would gain a special advantage because they would be burdened with little or none of the expense of development. The term “misappropriation” means the wrongful taking and use of another’s property. The unauthorized copying and sale of another’s tapes would constitute misappropriation.
QUESTION NO. 1:
Do you find from a preponderance of the evidence, if any, that Defendants United States Sporting Products, Inc. and John Bowling misappropriated the Johnny Stewart Game Calls, Inc.’s tapes at issue in this lawsuit?
Answer “Yes” or “No”.
Answer: Yes
(Emphasis added).
Appellants argue that, after defining “misappropriation” as “the wrongful taking and use of another’s property,” the trial court gave an erroneous instruction. They argue that the next statement, “the unauthorized copying and sale of another’s tape recordings would constitute misappropriation,” was a comment on the weight of the evidence which eviscerated Appellant’s good-faith-purchaser defense. We disagree.
Error occurs when the trial judge directly comments on the weight of the evidence, suggesting the judge’s opinion concerning the matter put to the jury.
Linden-Alimak, Inc. v. McDonald,
Appellants concede that the first statement, “ ‘misappropriation’ means the wrongful taking and use of another’s property,” could have supported a finding of liability because it inquired whether Appellants acted “wrongfully.” Thus, if the jury believed that Appellants were good-faith purchasers, the jury could find that they did not act “wrongfully” and absolve them of liability. However, Appellants argue that because the court included the second statement — “the unauthorized copying and sale of another’s tape recordings would constitute misappropriation” — the jury was erroneously foreclosed from distinguishing between the “Appellants” acting wrongfully and Appellants as mere “sellers” acting within their rights. In other words, Appellants contend that, even if the jury believed that they were good faith purchasers, the court’s instruction required the jury to find liability if it believed that whoever sold Appellants the tapes misappropriated them.
We, however, read the second statement to be a permissible clarification of the first. See id. The first statement serves as a brief definition of misappropriation law. The second only demonstrates its application to the particular case at hand, that of copying and selling another’s tapes, and as such, is an accurate statement of law. In answering “yes” to question one, the jury necessarily found that Appellants were the actors who misappropriated the tapes at issue, whether misappropriation is defined as a “wrongful taking and use of another’s property” or as an “unauthorized copying and sale of another’s tapes.”
We overrule point two.
*221 LIABILITY FINDINGS
Bowling argues in point three that there was no finding of his knowing participation in the misappropriation to render him personally liable. As a general rule, a corporate agent may not be held personally liable in a suit against the corporation. However, if that agent knowingly participated in the tort, he becomes liable as a joint tort-feasor.
Permian Petroleum Co. v. Barrow,
The jury’s answers to two questions in the charge were equivalent to a finding of knowing participation by Bowling. First, the jury found in its affirmative answer to question one that “Defendants United States Sporting Products, Inc. and John Bowling misappropriated the [Game Calls] tapes.” (Emphasis added). Second, the jury found in question three “that the misappropriation by United States Sporting Products, Inc. and John Bowling ... was committed knowingly, willfully, and deliberately.” (Emphasis added). By naming both Appellants conjunctively in the charge, the jury found their participation sufficient to render both Sporting Products and Bowling independently liable as joint tort-feasors.
Because the jury found that Bowling knowingly participated in the misappropriation, we will not discuss the alternative “alter ego” theory of liability. We overrule point three.
EXEMPLARY DAMAGES
In two points Appellants attack the award of exemplary damages.
SEPARATE ASSESSMENTS
In point four they argue that the court should have required separate exemplary damage findings against both Sporting Products and Bowling. Appellants cite
St. Gelais v. Jackson,
In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.
Tex.Civ.PRAC. & Rem.Code Ann. § 41.005 (Vernon Supp.1993).
First, Appellants’ reliance on section 41.-005 is misplaced because it does not apply to intentional torts. Section 41.002 states, “This chapter applies to an action in which a claimant seeks exemplary damages relating to a cause of action as defined by Section 33.001.”
Id. §
41.002(a) (Vernon Supp.1993);
see also Transfer Products, Inc. v. Tex.Par Energy, Inc.,
Second, separate findings of exemplary damages are not necessary when the defendants are closely related. The acts, conduct, and intent of Bowling as the president of Sporting Products and as an individual were the subject of the jury’s determination. Bowling acted for both; thus, his intention, conduct, and acts were attributable to both.
See Norton Refrigerated Express, Inc. v. Ritter Bros. Co.,
We overrule point four.
MALICE
The jury found that Appellants committed the misappropriation “knowingly, willfully, and deliberately.” Appellants assert in point five that the court erred by not requiring a finding of actual malice to support the exemplary-damages award. Generally stated, a jury must find actual malice or implied malice to award exemplary damages. Actual malice is defined as “ill-will, spite, evil motive, or purposing the injuring of another.”
Clements v. Withers,
Appellants argue that a misappropriation claim is analogous to tortious interference with a contract, where actual malice is the necessary standard for exemplary damages. They rely on interference cases dealing generally with business conduct and profit motive.
See Clements,
We disagree with Appellants’ interpretation of Times Herald Printing. That court quoted with approval a jury instruction which stated, “a person is privileged or justified to interfere with the business relations of another with the motive and purpose, at least in part, to advance or protect his own business or financial interests.” Id. at 215. However, no mention is made of one business parasitically profiting at the expense of another as is the nature of misappropriation. If Appellants’ argument were correct, every tortious act arising in the context of business would be privileged, regardless of any resultant harm to competitors, because the act would arguably be profit motivated. Also, the court’s charge in Times Herald Printing reflected tortious-interference law with regard to liability, not exemplary damages. Id. If a jury should find that a defendant had interfered with a complainant’s contract, but did so only to advance its legitimate business interests, then the defendant is absolved of all liability. Privilege does not apply to exemplary damages in interference cases; nor will we apply it to the exemplary-damage issue here.
Game Calls, on the other hand, asserts that misappropriation is analogous to conversion, where implied or legal malice is sufficient to support exemplary damages.
See Morey v. Page,
REMITTITUR
Appellants argue in point six that the jury’s exemplary-damages award of $482,125 was excessive and that the court erred in not ordering a remittitur. The record, however, supports the jury’s assessment. Game Calls introduced evidence that Appellants gradually re-recorded the offending tapes with other material only after negotiations for the sale of Sporting Products’ assets had commenced and Sporting Products was about to indemnify the purchaser against Game Calls’ claim and warrant that no duplication had occurred. Despite over $1 million in revenue a year, Bowling could not say how many of the offending tapes had been sold or were still in the hands of distributors. In addition, the jury heard evidence that Bowling’s tax return included approximately $180,000 from his business earnings.
Appellants do not contest the jury’s finding of $209,000 in actual damages. Exemplary damages must be reasonably proportioned to actual damages.
Alamo Nat’l Bank v. Kraus,
We do not believe that the award of exemplary damages in this case, less than three times actual damages, is unreasonable proportioned to the award of actual damages.
See Alamo Nat’l Bank,
We affirm the judgment.