## Facts

- Johnny Stewart Game Calls, Inc. created and sold cassette tapes of animal sounds used to attract game, developed through extensive travel, repeated recording attempts, noise elimination efforts, editing, and looping of usable samples.
- U.S. Sporting Products, Inc., led by its president John Bowling, marketed competing animal-sound tapes that allegedly copied sounds from nineteen of Game Calls’ tapes.
- Game Calls’ president repeatedly confronted Bowling and demanded Sporting Products stop selling the allegedly copied sounds; Bowling maintained he acted properly and claimed he bought the sounds in good faith from a third party.
- Game Calls sued Sporting Products and Bowling asserting misappropriation and related unfair competition theories.
- A jury found misappropriation and awarded $209,000 in actual damages and $482,125 in exemplary damages.
- The trial court entered judgment on the verdict, awarded attorney’s fees related to defense of a counterclaim, and issued a permanent injunction requiring defendants to stop selling the infringing tapes and to recall tapes from identifiable distributors and dealers.

## Issues

1. Whether Texas law recognizes a misappropriation claim protecting commercially valuable recordings produced through substantial labor, skill, and expense.
2. Whether public sale of the tapes barred misappropriation, and whether misappropriation is limited to items with short-lived “time value.”
3. Whether Bowling could be held personally liable as a corporate officer based on his participation in the alleged tort.
4. Whether exemplary damages required a specific finding of “actual malice,” and whether the evidence supported the exemplary damages award.
5. Whether alleged jury-charge and submission errors required reversal.

## Decision

- The court affirmed the judgment in full.
- Misappropriation was recognized and applied as a branch of Texas unfair competition protecting a plaintiff’s unique pecuniary interest created through labor, skill, and money.
- Publication and sale of the tapes did not defeat the claim, and the doctrine was not limited to “time value” situations.
- Bowling’s personal liability was upheld based on evidence he knowingly participated in the misappropriation.
- Exemplary damages were upheld; implied (legal) malice was sufficient and supported by evidence defendants acted knowingly, willfully, and deliberately.
- The court rejected challenges to the jury charge and findings as insufficient to support liability and damages against each defendant.

## Legal Principles

- Texas misappropriation (as unfair competition) protects a commercially valuable interest created through a plaintiff’s labor, skill, and expense against a competitor’s appropriation for competitive use.
- Public dissemination or sale of a product does not necessarily extinguish the protected pecuniary interest for misappropriation purposes.
- Misappropriation is not confined to “hot news” or other short-term “time value” claims; it can apply where value derives from investment and resulting commercial advantage.
- A corporate officer may be personally liable for a business tort when the officer knowingly participates in or directs the wrongful conduct.
- Exemplary damages may be awarded upon proof of implied malice where evidence supports knowing, willful, and deliberate conduct.

## Conclusion

The court upheld liability and broad remedies for copying and selling competing animal-sound tapes, holding that Texas misappropriation law protects the pecuniary value of products created through substantial effort and expense, is not barred by publication or limited to time-sensitive information, and can support individual officer liability and exemplary damages on proof of implied malice.


U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214 (Tex. App.—Waco 1993, writ denied)