I dissent and vote to affirm.
The plaintiff had a contract with a singer named Sarah Vaughan for the exclusive right to make and market records of her performance. To obtain the exclusive right, the plaintiff paid her $25,000, in addition to contracting to pay royalties derived from the sale of the records. Miss Vaughan appeared and sang in a motion picture produced by the appellants. No one questions her right to do so or the right of appellants to hire her for that purpose. From the sound track of the motion picture appellants procured a record to be made and distributed by the nonappealing defendants, and defendants have received substantial royalties from that record. Plaintiff sued for an injunction and damages. The trial court granted relief.
The relief of an injunction and damages has been attacked on several grounds. The first attack might be styled mechanical. The record was made not by Miss Vaughan but by a sound track of her voice. The contract provided for “ phonograph records or any reproductions of any kind of the performances by any method now or hereafter known.” A second contention, that the recording was made for the purposes of exploiting the picture rather than for commercial sales of the record, both legally and factually barely survived announcement of the contention.
,/There are, however, two contentions that cannot be disposed / of so abruptly. The trial court found that before making the / record defendants knew, or ought to have known, of the contract between Miss Vaughan and plaintiff. It is claimed that nothing short of actual knowledge will suffice. This is not a precise statement of the law. Let us assume the accuracy of the text writers that there is no liability for negligent interference with contract (1 Harper and Jones, Law of Torts, 509; Prosser, Handbook of the Law of Torts [2d ed.], p. 732 et seq.) There is quite a distinction between a negligent failure to know and a deliberate intent to stay in ignorance of what one suspects. It is granted that plaintiff did not prove that defendants actually knew of plaintiff’s contract. But it was proved that news of the contract was published in two trade papers, attesting to the general interest of such an occurrence in the milieu in which these people operated. It was also established through the testimony of defendants’ own expert that the practice was to *340inquire of the performer, before using him to make a record, whether the performer had existing contractual commitments. "While it was not proved that defendants did so, it was certainly a reasonable conclusion for the trier of the fact to draw that the failure of the defendants to inquire was due to a desire not to be told. If this is not the equivalent of knowledge, it would seem to be an extremely technical exception in the law, as well as one without any basis in policy.
Lastly, it is said that no damages were proved. The failure to prove damage should not affect the branch of the decision regarding injunction. Defendants’ argument that an injunction is needless because it will not make another record is not particularly convincing coming from one who had made a record, and betrays an unusual preoccupation with the reputation of a wrongdoer. That the plaintiff suffered monetary damage is clear, though it may not be possible to establish the extent with certainty. Preliminarily, when one pays a very substantial sum for an exclusive right it seems, at the least, odd to be told that a violation of that right has caused no damage. The award of the court was based on two items: the royalties received by the appellant and the profit made by the manufacturer of the record. These would appear to be unexceptionable items. Perhaps the only way—and certainly the accepted way—of establishing a monetary loss resulting from infringing on proprietary rights is to show what the wrongdoer profited from the venture. Actually defendants do not seriously dispute this. They do claim that only a part of the record was the recorded voice of the singer, the balance being instrumental music. But they cannot and do not dispute that the record was marketed as a song rendition by Sarah Vaughan. Also they claim that the royalties they received were not in fact royalties in that they had to pay out some of them to other parties. What they did with the royalties does not change the character of the receipts. While there are other arguments, these do not merit further statement, as the statements alone prove their refutation. Damages were amply proved according to accepted standards.
The judgment should be affirmed.
Valente, J. P., and Eager, J., concur with McNally, J.; Stetjer, J., dissents in opinion in which Stevens, J., concurs.
Judgment reversed upon the law and upon the facts and a new trial ordered, with costs to abide the result of the final judgment in the action.