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 actual damages are ascertained, then under the dicta of Shapiro the award of statutory “in lieu” damages is mandatory, although the amount of such recovery remains discretionary.

The foregoing interpretation of Woolworth and Shapiro provide the rules by which the trial court will be guided in respect to “in lieu” damages on remand of this case. On remand the trial court’s first task is to determine, if possible, the profits of the infringers. If these profits are ascertainable, then plaintiffs are entitled to the larger of either the profits or damages, unless the district court, in its discretion, awards the statutory “in lieu” damages. If the profits are not ascertainable, then plaintiffs are entitled to the compensatory damages as found by the jury, unless the district court awards the discretionary “in lieu” damages.

In view of the holdings set forth in both portions of this opinion the judgment of the district court finding infringement is affirmed. The district court’s denial of plaintiffs’ motion for an accounting is reversed. The case is remanded for an accounting, after which the district court may, in its discretion, award statutory “in lieu” damages.

Affirmed in part and Reversed in part. JAMES M. CARTER, Circuit Judge, concurring and dissenting.

I concur in that portion of Judge Sneed’s Opinion dealing with statutory “in lieu” damages. However, I am convinced that the Copyright Act contemplates cumulative recovery of both damages and profits, and therefore dissent from that portion of the Majority Opinion dealing with this issue.

The statutory language of Section 101(b) provides for recovery of “such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement….” Thus, the statute itself provides for cumulative recovery of both damages and profits. However, considerable confusion was engendered by the House Report on the 1909 Act which indicated that recovery was to be in the alternative, as under the Patent Law. This led Courts in several early decisions to rule that recovery was either of damages or profits. See Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 400–01, 60 S.Ct. 681, 84 L.Ed. 825 (1940); Gordon v. Weir, 111 F.Supp. 117, 123 (E.D.Mich.1958), aff’d, 216 F.2d 508 (6 Cir. 1954); Lundberg v. Welles, 93 F.Supp. 359, 361 (S.D.N.Y.1950); Orgel v. Clark Boardman Co., Ltd., 128 U.S.P.Q. 531, 532 (S.D.N.Y.1960), modified, 301 F.2d 119 (2 Cir. 1962). See generally Note, Monetary Recovery for Copyright Infringement, 67 Harv.L.Rev. 1044, 1051 (1954). This court adopted the alternative recovery rule in the early case of Universal Pictures Co. v. Harold Lloyd Corp., supra, 162 F.2d at 376, which the