
USCA1 Opinion

	




          January 5, 1994   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          Nos. 92-2016               92-2132               93-1504               93-1518                          GAMMA AUDIO & VIDEO, INC., ET AL.,                       Plaintiffs, Appellees, Cross-Appellants,                                          v.                        EAN-CHEA D/B/A OVERSEAS VIDEO, ET AL.,                        Defendant, Appellant, Cross-Appellees.                                     ____________                                     ERRATA SHEET               The opinion  of this court  issued on December 22,  1993, is          amended as follows:               Page 10, lines 6 and 13:  Change "work" to "works."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 92-2016               92-2132               93-1504               93-1518                          GAMMA AUDIO & VIDEO, INC., ET AL.,                       Plaintiffs, Appellees, Cross-Appellants,                                          v.                        EAN-CHEA D/B/A OVERSEAS VIDEO, ET AL.,                        Defendant, Appellant, Cross-Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               William F. Spallina on brief for defendant  appellant/cross-               ___________________          appellee Ean-Chea, d/b/a Overseas Video.               Philip S.  Shaw, with  whom Rafferty, Polich  & Shaw  was on               _______________             ________________________          brief for  plaintiffs appellees/cross-appellants Taing  Tao, Meng          I. Ung and  Chen V. Ung and  Marvin Feldman and Tetel  & Feldman,                                       ______________     _________________          P.C. on brief for plaintiff appellee/cross-appellant  Gamma Audio          ____          & Video, Inc.                                 ____________________                                  December 22, 1993                                 ____________________                      BOWNES, Senior Circuit  Judge.  These cross-appeals                      BOWNES, Senior Circuit  Judge.                              _____________________            involve claims of copyright infringement  under the Copyright            Act  of 1976, 17 U.S.C.   101,  et seq.  After a bench trial,                                            __ ___            judgment was  entered in favor  of plaintiffs, Gamma  Audio &            Video,  Inc.,  Taing  Tao,  Meng  I. Ung  and  Cheng  K.  Ung            (collectively "Gamma"), on their  claim that defendant,  Ean-            Chea, unlawfully  distributed two videotapes  containing four            episodes  of the  Cambodian language  version of Jade  Fox, a                                                             _________            popular   Chinese  language  soap  opera.    In  addition  to            obtaining a permanent injunction against Ean-Chea,  Gamma was            awarded $2,500  in statutory  damages, as  well as  costs and            attorney's fees.  Both parties appeal from various aspects of            the   final  judgment  entered  below  and  seek  to  recover            appellate  attorney's fees.  We affirm  the district court on            all  issues except  one;  we  reverse  the  district  court's            finding  that the four  episodes of  Jade Fox  constitute one                                                 ________            "work"  for purposes of computing statutory damages.  Because            we  hold  that  four  works  were infringed,  we  vacate  the            district  court's  judgment ordering  Ean-Chea  to pay  Gamma            $2,500 for the infringement of  only one work, and remand for            a redetermination of damages.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      Television Broadcasts Ltd. ("TVB") is a producer of            Chinese language television programs and videotapes of  those                                         -2-                                          2            programs.  The two programs at issue are Jade Fox and Hunters                                                     ________     _______            Prey.   They consist, respectively, of twenty-four and twenty            ____            one-hour  episodes.  Both are Chinese language "Kung Fu"-type            serials created by TVB in  Hong Kong and originally broadcast            there.   Although considerably more violent, the programs are            of the  same genre as  American soap operas.   It  is unclear            whether  the  episodes  were originally  broadcast  daily  or            weekly.  TVB holds a valid United States copyright in each of            the programs.                      Through  a   series  of  four   recorded  licensing            agreements,  Gamma  obtained  three  exclusive  rights   with            respect to TVB's  programs.  Gamma obtained the  right to dub            TVB  videotapes  into  Cambodian,  to  duplicate  the  dubbed            versions,  and to distribute by rental the Cambodian versions            in  thirty-seven  states  including   Massachusetts.    Gamma            assigned all copyrights in the dubbed works  to its licensor,            Telefeature,  Inc.   At the  time this action  was commenced,            neither Gamma nor  anyone else had registered  the copyrights            in the derivative works created by Gamma.                      Shortly thereafter, Gamma entered into an exclusive            licensing  agreement with  Taing Tao  and  his partners,  the            other individual  plaintiffs.   The agreement  gave them  the            exclusive  right to distribute, by rental  to the public, the            Cambodian language videotapes created by Gamma, in six states            including  Massachusetts.   Ean-Chea  owns and  operates  two                                         -3-                                          3            video rental stores in Lowell, Massachusetts.  The stores are            named Overseas Video and Overseas Video II.  Ean-Chea was the            authorized distributor  of  the Cambodian  versions of  TVB's            programs in Massachusetts for Gamma's predecessor.                      On February  9,  1991,  Chea  Sokhoeun,  acting  on            Gamma's  behalf, went to Overseas Video and rented tapes four            through  eleven of the  Cambodian Jade  Fox series.   Because                                              _________            each  tape contained two  episodes, the rented  tapes covered            episodes seven through twenty-two.                      On June 13, 1991 Gamma commenced this action in the            United   States   District   Court   for   the   District  of            Massachusetts.  The complaint contained six causes of action.            Gamma alleged  violations of  the Copyright  Act of  1976, 17            U.S.C.    101, et seq.  (the "Copyright Act") and  the Lanham                           __ ___            Act, 15 U.S.C.   1051 et seq.  It also alleged four state-law                                  __ ___            claims:       unfair   competition,    conversion,   tortious            interference  with  advantageous  business  relations  and  a            constructive trust.  Gamma alleged that Ean-Chea was behind a            massive pirating scheme, and requested millions of dollars in            relief.                      Together with the complaint,  Gamma submitted a one            page document entitled "Motion  For Seizure and Impoundment."            By this  motion, Gamma sought  an ex parte order  allowing it                                              __ _____            "to seize and impound any and all video tapes which are owned            or  under  the  control  of  the  defendants  and  which  are                                         -4-                                          4            Cambodian  language versions  of the  TVB programs,  produced            under the  authority of plaintiff  Gamma Audio &  Video, Inc.            including any and all such  videotapes on the premises of the            respective  stores  of  defendants."   Simultaneously,  Gamma            moved for  a  temporary  restraining  order  and  preliminary            injunction   enjoining   Ean-Chea   from   further  acts   of            infringement    and    from   disposing    any    potentially            "incriminating"  materials  such  as  business  records   and            advertising materials.  This motion also asked that Ean-Chea                      deliver up ... to be impounded during the                      pendency of  this action,  all copies  of                      the Gamma TVB Programs and all negatives,                      prints,  matrices,   master  tapes,   all                      business  records  relating to  the  sale                      and/or rental of video tapes of the Gamma                      TVB  Programs,  and all  other  materials                      including   video   recorders,  automatic                      video  tape  rewinders,   and  television                      monitors  (collectively "machines")  used                      in the making  of such infringing  copies                      and all advertising and materials used in                      the promotion thereof.            Gamma was authorized to visit Ean-Chea's video stores, in the            company  of  a  U.S.  Marshal  or Deputy  Sheriff,  "for  the            purposes  of  inspection,   inventorying,  and  photographing            materials   alleged  to  infringe,"  and  to  carry  out  the            impoundment.                      District  Judge  Mazzone  granted  the  motion  for            seizure and  impoundment and a  T.R.O. and  ordered Gamma  to            post a  bond in  the amount  of $2,500.   On  June 24,  1991,            District  Judge Zobel, to  whom the case  was assigned, heard                                         -5-                                          5            argument on Gamma's  motion for a preliminary  injunction and            granted it.                      In  the  meantime,  on  June  14,   the  individual            plaintiffs and their attorneys, accompanied by a local deputy            sheriff, went to Overseas Video  to carry out the seizure and            impoundment.   The  raid yielded  nine  videotapes containing            episodes three  through twenty  of Hunters  Prey, which  were                                               _____________            found in  a cardboard  box behind  the  front counter,  three            high-speed commercial videotape  duplicating machines, and  a            notebook  containing business records  of Overseas Video that            reflected the shipment to Montreal of an unauthorized copy of            a program called Serpentine Romance.                             __________________                      Six months  later, on  December 13, 1991,  Ean-Chea            moved  for an order compelling Gamma  to return the impounded            video equipment and tapes.   On January 13, 1992, Judge Zobel            granted  the  motion,   to  which  no  opposition   had  been            submitted.    On   January  17,  however,  Gamma   moved  for            reconsideration;  and  on  February  26  Judge  Zobel granted            Gamma's motion for reconsideration and then denied Ean-Chea's            motion for return of the impounded material.                      On  April 28, Gamma elected to recover statutory as            opposed   to  actual  damages,  on  its  claim  of  copyright            infringement.  The  next day it voluntarily  dismissed counts            two through six  of its complaint, leaving only the copyright            claim  to be tried.   By this  time, Gamma  realized that the                                         -6-                                          6            copyrights  in all  but four  episodes  of Jade  Fox, numbers                                                       _________            thirteen  through  sixteen,  as  well  as  the  copyright  in            Serpentine  Romance  had  not been  registered  prior  to the            ___________________            commencement  of the lawsuit, and therefore could not support            an  action  seeking   statutory  damages.     These  episodes            therefore  dropped out  of the  case, leaving  only  the four            episodes  of Jade Fox  and the  seized videotapes  of Hunters                         ________                                 _______            Prey, as subjects of this litigation.            ____                      On May 11,  1992, at the close of  a four-day bench            trial, the trial  judge stated her findings of fact.  In sum,            the  court found that Gamma had established infringement with            respect to episodes thirteen through sixteen of Jade Fox, but                                                            ________            had failed to  carry its burden of  proving infringement with            respect to the seized Hunters Prey tapes.                                  ____________                      The court then requested  additional submissions by            counsel for both parties on  two issues.  First, whether Ean-            Chea's unauthorized distribution of the Cambodian  version of            four  episodes  of  Jade Fox  could  support  a judgment  for                                ________            statutory   damages.    Second,  whether  each  of  the  four            infringed  episodes entitled  Gamma to  a  separate award  of            statutory damages.  The court held that Ean-Chea had wilfully            infringed  upon Gamma's  exclusive  right  to distribute  the            video images of  the Chinese language version of  Jade Fox in                                                              ________            Massachusetts,  and  that   Gamma  could  therefore   recover                                         -7-                                          7            statutory  damages.  It  then found that  Gamma could recover            only one award of statutory damages for the infringement.                      Meanwhile,  on June 8, 1992, Ean-Chea had moved for            the  return  of  its  high-speed  duplicating  machines   and            notebook, and for payment of the $2,500 bond posted by Gamma.            On July 3  the court ordered that the  materials be returned,            but  declined to  order payment  of the  bond.1   On  July 15            Gamma  moved for  costs under  the  Copyright Act,  including            attorney's  fees, and on  December 12, 1992,  Ean-Chea cross-            moved for attorney's fees.                        In an  opinion dated  April 2,  1993, the  district            court  ruled upon  Gamma's motion  for  costs and  attorney's            fees, and Ean-Chea's  cross-motion for attorney's fees.   The            court  awarded Gamma its costs and  determined that Gamma, as            the   "prevailing  party,"  was  eligible  for  an  award  of            attorney's fees.  It also found  that Gamma was entitled to a            fee award  because Ean-Chea  was a  willful  infringer.   The            court denied Ean-Chea's cross-motion for fees.  These appeals            ensued.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                      On  their  respective   appeals  each  party  makes            several arguments.  Ean-Chea maintains that:  (1) as a matter                                            ____________________            1.  The  articles are still in Gamma's possession pursuant to            an order of attachment.                                         -8-                                          8            of law,  Gamma  could not  obtain  a judgment  for  statutory            damages  because  the copyrights  in  the  Cambodian language            episodes of Jade Fox were not registered; (2) Gamma  violated                        ________            Ean-Chea's rights guaranteed  by the Fourth Amendment  in its            search of  the premises  of Overseas Video;  (3) there  was a            lack  of statutory  authority  for  seizing  the  duplicating            machines  and notebook; and  (4) the district  court erred in            finding   Gamma  to  be  the  "prevailing  party"  under  the            Copyright Act, and that  Ean-Chea was in fact  the prevailing            party.                      On its  cross-appeal, Gamma contends  that: (1) the            district  court  erred  in  finding  that  Ean-Chea  had  not            unlawfully  copied  the  Hunters Prey  videotapes;    (2) the                                     ____________            district court erred  in limiting Gamma to a  single award of            statutory  damages; and  (3) the  district  court abused  its            discretion in determining Gamma's attorney's fees award.                      We review the district court's findings of fact for            clear error, and its conclusions of law de novo.  See Lenn v.                                                    __ ____   ___ ____            Portland Sch.  Comm., 998  F.2d 1083, 1087  (1st Cir.  1993).            ____________________            Mixed questions  of law  and fact are  also reviewed  under a            clearly  erroneous standard.  I.C.C. v. Holmes Transp., Inc.,                                          ______    ____________________            983 F.2d 1122, 1128 (1st Cir. 1993).                                         -9-                                          9                                          A.                                          A.                                  Ean-Chea's Appeal                                  Ean-Chea's Appeal                                  _________________                      As  its first ground on appeal Ean-Chea argues that            Gamma could not obtain a  judgment for statutory damages with            respect to  the unlawful  distribution  of episodes  thirteen            through sixteen of the Cambodian language version of Jade Fox                                                                 ________            because the copyrights in those episodes were not registered.            Gamma  argues that  Ean-Chea  infringed  upon the  registered            copyrights  in  the registered  Chinese  language  version of            those episodes, and  that it could enforce  those copyrights.            The questions  before this court  are twofold:  (1)  did Ean-            Chea infringe upon  rights that flow  from the copyrights  in            the Chinese language version of Jade Fox; and (2) could Gamma                                            ________            enforce those rights.                      As  the  district  court recognized,  two  sets  of            copyrights are  at  issue in  this litigation,  those in  the            underlying works - the Chinese language episodes of Jade Fox,                                                                ________            and those  in the  derivative works2 created  by Gamma  - the            Cambodian language  episodes of  Jade Fox.   See 17  U.S.C.                                               ________    ___            102(a) ("[c]opyright  protection  subsists  ...  in  original                                            ____________________            2.  "A `derivative  work' is  a work based  upon one  or more            preexisting   works,   such   as   a   translation,   musical            arrangement, dramatization, fictionalization,  motion picture            version,  sound  recording,  art  reproduction,  abridgement,            condensation,  or any  other  form  in which  a  work may  be            recast,  transformed  or  adapted.    A  work  consisting  of            editorial  revisions,  annotations,  elaborations,  or  other            modifications which, as  a whole, represent an  original work            of authorship, is a `derivative work'."  17 U.S.C.   101.                                         -10-                                          10            works   ... fixed  in any tangible  medium of  expression ...            from  which they  can be  reproduced");   17 U.S.C.    103(b)            (derivative works are separately copyrightable).                      Gamma owns the copyrights in the derivative  works,            and TVB owns the copyrights in  the underlying works.  Any of            the   exclusive  rights  comprised  in  a  copyright  may  be            transferred in  whole or in part.  See 17 U.S.C.   201(d)(1).                                               ___            By virtue of the licensing agreements, Gamma obtained certain            exclusive  rights  emanating  from  the   copyrights  in  the            underlying  works.  Thus, Gamma owns exclusive rights flowing            from both sets of copyrights.                       It is undisputed,  however, that the  copyrights in            Gamma's  derivative  works  are unregistered.    Accordingly,            Gamma  cannot recover statutory  damages, the only  remedy it            sought,  for the infringement of its exclusive rights arising            under  these  unregistered copyrights.3   Instead,  Gamma may            only  recover statutory  damages  if Ean-Chea's  unauthorized            rental  of the Jade  Fox videotapes infringed  upon exclusive                           _________            rights held by Gamma pursuant to the registered copyrights in            the underlying works.                                              ____________________            3.  To  maintain  an   action  for  statutory   damages,  the            copyrights in  the infringed  works must be  registered.   17            U.S.C.    412;  Melville B. Nimmer and David Nimmer, 3 Nimmer                                                                   ______            on  Copyright,     14.04[E],  at  14-59  (1993)  (hereinafter            _____________            "Nimmer").                                         -11-                                          11                      Ean-Chea  maintains  that  it only  infringed  upon            rights   held  by  Gamma  arising  out  of  the  unregistered            copyrights in the derivative works.  We disagree.                      Although  a  derivative   work  may  be  separately            copyrighted,  that copyright does not affect the copyright in            the underlying work.  The statute provides that                      [t]he copyright in  a ... derivative work                      extends only to  the material contributed                      by  the   author   of   such   work,   as                      distinguished   from    the   preexisting                      material employed in  the work, and  does                      not imply  any  exclusive  right  in  the                      preexisting material.   The  copyright in                                              _________________                      such a  work is independent of,  and does                      _________________________________________                      not affect  ... any  copyright protection                      _________________________________________                      in the preexisting material.                      ___________________________            17  U.S.C.    103(b)  (emphasis  added);    see 1  Nimmer,                                                           ___    ______            3.04[A], at  3-17 to  -18 (1993).   Thus  the copyright  in a            derivative   work  only   protects   the  original   elements            contributed by  the author  of the  derivative work,  in this            case the Cambodian language soundtrack created by Gamma.  Any            elements that the author of the derivative work borrowed from            the underlying work, such as  the video images in the Chinese            language  episodes of  Jade  Fox,  remain  protected  by  the                                   _________            copyrights in the underlying work.   We are led inexorably to            the conclusion that Ean-Chea infringed upon copyrights in the            underlying works  by renting  out episodes  of the  Cambodian            version of Jade Fox which contained video images protected by                       ________            the registered copyrights in the Chinese version of Jade Fox.                                                                ________                                         -12-                                          12            Next   we  determine  whether  Gamma  may  recover  for  this            infringement.                      Under the Copyright  Act, the copyright owner  of a            derivative work  "has a cause  of action for  infringement by            reason of the substantial copying from the derivative work of            material which originally appeared  in the underlying  work."            1 Nimmer   3.05, at 3-30.  This means that, if  the copyright              ______            owner  in a  derivative  work is  the  exclusive licensee  of            certain  rights  in  the  underlying  work,  it  becomes  the            copyright owner  of the  underlying work for  the purpose  of            exercising   those  rights.    Id.;  17  U.S.C.     201(d)(2)                                           ___            (transferee of any exclusive right is entitled "to all of the            protection and remedies accorded to the copyright owner").                      In  the  present  case,   Gamma  is  the  exclusive            licensee  of the right  to distribute, in  Massachusetts, the            video  images  of  the  Chinese production  of  Jade  Fox, in                                                            _________            conjunction with  a Cambodian  language soundtrack.   See  17                                                                  ___            U.S.C.   106  (exclusive rights  include rights  to copy  the            work,  prepare derivative works,  and distribute the  work to            the public by rental, sale or lease).  Accordingly, Gamma may            recover  for Ean-Chea's  infringement.   17  U.S.C.    501(b)            ("[t]he legal or beneficial owner of an exclusive right under            a copyright  is entitled ...  to institute an action  for any            infringement of that  particular right committed while  he or            she  is the owner  of it").   It is irrelevant  that what was                                         -13-                                          13            actually distributed by  Ean-Chea was the derivative  and not            the underlying work.   See 1 Nimmer   3.05, at 3-31; see also                                   ___   ______                  ___ ____            G. Ricordi  & Co. v.  Paramount Pictures, Inc., 189  F.2d 469            _________________     ________________________            (2d Cir.), cert. denied, 342  U.S. 849 (1957) (performance of                       _____ ______            play  in which copyright registration had expired constituted            infringement of  the registered  copyright in the  underlying            story from  which play  was derived);   Grove Press,  Inc. v.                                                    __________________            Greenleaf  Publishing Co., 247  F. Supp. 518  (E.D.N.Y. 1965)            _________________________            (copying  of  unregistered  English  language translation  of            French language novel infringed upon the registered copyright            in the underlying French language story).                      Taking  a  somewhat scattershot  approach  to brief            writing,  Ean-Chea identifies  a  host  of  infirmities  with            respect to  the seizure  and impoundment  order obtained  and            executed by Gamma at the outset of this litigation.  Ean-Chea            appears to argue that: (1)  in executing the orders signed by            Judge  Mazzone, Gamma  violated  Ean-Chea's Fourth  Amendment            right to  be free  from unreasonable  searches and  seizures;            (2)    503(a)  of the  Copyright Act  does not  authorize the            seizure of  videotape duplicating machines;   (3)    509 does            not authorize the  seizure of books  and records (i.e.,  Ean-                                                              ____            Chea's  notebook);  and  (4) although     509  authorizes the            seizure of videotape  duplicating machines,  Gamma failed  to            follow the procedures set forth therein.                                         -14-                                          14                      Ean-Chea  has,  generously   speaking,  provided  a            superficial briefing of the above issues, often dedicating no            more  then  three or  four  conclusory sentences  to  a topic            before moving on.   For this and other reasons  we reject all            of the above contentions.                      First we  confront Ean-Chea's  constitutional claim            arising under the Fourth Amendment.   While there appears  to            be  some support  for the  substance of  this argument,   see                                                                      ___            Paramount  Pictures  Corp. v.  Doe,  821 F.  Supp.  82, 90-91            __________________________     ___            (E.D.N.Y.  1993) (proposed seizure  and impoundment  order in            copyright case  must specify with  particularity the premises            to be searched and the articles to  be seized or run afoul of            Fourth Amendment), Ean-Chea failed  to present this  argument            to the district  court and is thus precluded  from raising it            on  appeal.     See  McCoy  v.  Massachusetts   Institute  of                            ___  _____      _____________________________            Technology,  950 F.2d 13,  22 (1st Cir.  1991), cert. denied,            __________                                      _____ ______            112 S. Ct. 1939 (1992)  ("theories not raised squarely in the            district  court  cannot be  surfaced  for the  first  time on            appeal").                      The  next   argument  raised  by   Ean-Chea,  which            implicates the scope of    503(a)4, was not presented at oral                                            ____________________            4.  Section 503(a) provides as follows:                      At any  time while  an action  under this                      title is pending, the court may order the                      impounding, on such terms as  it may deem                      reasonable, of all copies or phonorecords                      claimed to  have  been made  or  used  in                      violation   of   the   copyright  owner's                                         -15-                                          15            argument, takes up a mere  handful of sentences in its brief,            and is wholly  unaccompanied by any developed  argumentation.            We  have consistently admonished  litigants that  they cannot            simply present this  court with a shopping  list of arguments            and  then expect  us to  both develop  and address  each one.            Ean-Chea's argument with  respect to   503(a) is presented in            such  a  cursory  and  mechanical  fashion  as to  render  it            unpreserved on appeal.  See,  e.g., Cohen v. Brown Univ., 991                                    ___   ____  _____    ___________            F.2d 888, 903 (1st Cir. 1993)  ("Litigants cannot preserve an            issue for appeal by raising a  pennant and then moving on  to            another subject");  Ryan v.  Royal Ins.  Co. of  America, 916                                ____     ___________________________            F.2d 731, 734 (1st Cir.  1990) ("issues adverted to on appeal            in  a  perfunctory  manner, unaccompanied  by  some developed            argumentation, are deemed to have been abandoned").                      Ean-Chea's  argument premised  upon     509 is  off            base.  Although  he spends a considerable amount  of space on            this  point, Ean-Chea  fails to  realize  that    509 has  no            bearing on the  matter before us.  Section  509(a) provides a            list  of articles  that may  be seized  and forfeited  to the            United  States in  criminal prosecutions  brought  to enforce                               ________                                            ____________________                      exclusive  rights,  and  of  all  plates,                      molds,  matrices,  masters,  tapes,  film                      negatives, or other articles  by means of                      which such copies or phonorecords may  be                      reproduced.            17  U.S.C.      503(a).     This   provision  establishes   a            discretionary power to order impoundment.  Midway Mfg. Co. v.                                                       _______________            Omni Video Games, Inc., 668 F.2d 70, 72 (1st Cir. 1981).            ______________________                                         -16-                                          16            violations  of the Copyright Act.  The procedures referred to            by Ean-Chea,  set forth in    509(b), apply only  to seizures            and forfeitures described by subsection (a) of   509.  See 17                                                                   ___            U.S.C.    509(b).    Because    509  is  limited to  criminal            actions, it is of no use to Ean-Chea in the present case.                      Next,   Ean-Chea   appeals  the   attorney's   fees            component  of the district  court's judgment.   The  focus of            Ean-Chea's discontent with  the fee allowance in  the present            case is that the district court determined that Gamma and not            he was the "prevailing party" below.                      Section  505  of  the  Copyright  Act  provides  as            follows:                      In any civil action under this title, the                      court  in  its discretion  may  allow the                      recovery of full costs  by or against any                      party ....  [T]he court may  also award a                      reasonable   attorney's   fee    to   the                      prevailing party as part of the costs.            17 U.S.C.    505.  "Under the Copyright  Act, the `prevailing            party  is one  who succeeds  on  a significant  issue in  the            litigation  that  achieves  some of  the  benefits  the party            sought in bringing  the suit.'"  Video Views,  Inc. v. Studio                                             __________________    ______            21, Ltd., 925  F.2d 1010, 1022 (7th Cir.),  cert. denied, 112            ________                                    _____ ______            S.  Ct. 181  (1991) (quoting  Warner Bros.,  Inc. v.  Dae Rim                                          ___________________     _______            Trading, Inc., 877 F.2d  1120, 1126 (2d Cir.  1989) (citation            _____________            omitted)).                      We   review   de   novo   the   district    court's                                    __   ____            determination  that Gamma  met the  "prevailing party"  test.                                         -17-                                          17            Domegan v. Ponte, 972 F.2d  401, 406 (1st Cir. 1992), vacated            _______    _____                                      _______            on  other grounds,  113 S.  Ct. 1378  (1993) (citing  cases).            _________________            Although prevailing party  determinations are often  reviewed            under  an abuse  of  discretion  standard,  see  McDonald  v.                                                        ___  ________            Secretary  of Health and  Human Services, 884 F.2d 1468, 1474            ________________________________________            (1st Cir.  1989), such is  not the  case where,  as here,  no            facts  are  in  dispute and  application  of  the "prevailing            party"  test presents  a  pure  question  of  law  warranting            plenary review.  Domegan, 972 F.2d at 406-07 n.8.                             _______                      Ean-Chea  argues  that   Gamma  did  not  "prevail"            because,  prior to trial,  it voluntarily dismissed  the five            non-copyright  claims  contained in  the  complaint, conceded            that  it was  not  entitled to  statutory  damages on  twelve            episodes of Jade Fox whose copyrights had not been registered                        ________            prior to the commencement of this action, and failed to prove            infringement  with  respect to  the Hunters  Prey videotapes.                                                _____________            Although  all of  this  is  true, Gamma  did  succeed on  its            infringement claim with respect to episodes thirteen  through            sixteen   of  Jade  Fox.    While  we  recognize  that  Gamma                          _________            downscaled its case as the  litigation proceeded, in light of            its victory vis- -vis the four  episodes of Jade Fox, we have                                                        ________            little  trouble in  concluding  that  Gamma  succeeded  on  a            "significant  issue in  the  litigation."    See  Langton  v.                                                         ___  _______            Johnston, 928 F.2d  1206, 1226 (1st Cir.  1991) (significance            ________                                         -18-                                          18            must be  viewed  in light  of  "the scope  and  tenor of  the            litigation as a whole").                      Furthermore,  by virtue of  its success,  Gamma was            awarded  $2,500  in  statutory  damages,  and  Ean-Chea   was            permanently enjoined from further acts of infringement.  This            restriction  on Ean-Chea's  future  behavior  marks  a  clear            change  in the legal relationship between the parties enuring            to  Gamma's  benefit.   In  addition,  the  monetary judgment            recovered by Gamma  on the merits  of its claim is  more than            sufficient to qualify it as a "prevailing party."  See, e.g.,                                                               ___  ____            Farrar v. Hobby,  ____ U.S. ____, ____,  113 S. Ct. 566,  573            ______    _____            (1992) (civil rights  plaintiff who won only  nominal damages            of one dollar still "prevailing  party" and thus eligible for            attorney's fee award).                      Ean-Chea  points  to  the  poor winning  percentage            posted by Gamma and concludes that Gamma cannot possibly be a            "prevailing party."   We disagree.   In the first  place, the            voluntarily dismissed  claims were not  copyright claims  and            thus not germane to the  determination of whether Gamma was a            "prevailing party" under the Copyright Act. More importantly,            this court has  firmly rejected a "mathematical  approach" to            the  "prevailing party" determination.  See Domegan, 972 F.2d                                                    ___ _______            at 407  n.9.   In any  event, it  is well  settled that  "the            degree  of  the  plaintiff's  overall  success  goes  to  the            reasonableness" and not the allowability of an attorney's fee                                         -19-                                          19            award.  Farrar, ____ U.S. at ____, 113 S. Ct. at 574 (quoting                    ______            Texas  State  Teachers Assn.  v.  Garland  Independent School            ____________________________      ___________________________            Dist., 489  U.S. 782,  793 (1989)).   We affirm  the district            _____            court's determination that Gamma was the "prevailing  party,"            and hence eligible for a fee award.                        We have  considered Ean-Chea's  remaining arguments            and find them to be without merit.                                          B.                                          B.                                 Gamma's Cross-Appeal                                 Gamma's Cross-Appeal                                 ____________________                      As  its first ground  for appeal Gamma  argues that            the district court clearly erred by finding that it failed to            prove  that Ean-Chea had either reproduced or distributed the            videotapes of Hunters Prey.                          ____________                      We start with the proposition that the plaintiff in            a copyright  action carries  the burden  of proof.   Concrete                                                                 ________            Machinery Co. v. Classic Lawn Ornaments, Inc.,  843 F.2d 600,            _____________    ____________________________            605 (1st Cir.  1988); Motta v. Samuel Weiser,  Inc., 768 F.2d                                  _____    ____________________            481, 483  (1st Cir.), cert. denied, 474 U.S. 1033 (1985).  To                                  _____ ______            carry this burden a plaintiff must prove each of the elements            of copyright infringement:   (1) ownership of  the copyright;            and (2) copying by the defendant.  Id.  It is undisputed that                                               ___            Gamma  satisfied the  first  prong of  this  test, and  Gamma            argues that it met the second through circumstantial evidence            presented at trial.                       We have recognized that, in a copyright action,                                         -20-                                          20                      proof  by direct  evidence of  copying is                      generally not  possible since  the actual                      act  of copying  is  rarely witnessed  or                      recorded.  Normally, there is no physical                      proof of copying other than the offending                      object  itself.    Copying  therefore  is                      generally established by showing that the                      defendant had  access to  the copyrighted                      work   and   that   the   offending   and                      copyrighted  articles are  "substantially                      similar."            Concrete  Machinery  Co.,  843  F.2d  at  605.   "Copying  is            ________________________            demonstrated when  someone who  has access  to a  copyrighted            work uses material  substantially similar to the  copyrighted            work in a  manner which interferes with a  right protected by            17 U.S.C.   106."   Ford Motor Co. v. Summit  Motor Products,                                ______________    _______________________            Inc., 930 F.2d  277, 291 (3d  Cir. 1991) (footnote  omitted).            ____            Among the rights protected  by   106 are  the rights to  copy            and distribute the copyrighted work.                      Both   access   and  substantial   similarity   are            undisputed  in the present  case, and  there was  no question            that the videotapes of Hunters Prey found in Ean-Chea's store                                   ____________            were piratical  copies.5  Ean-Chea,  however, disclaimed  any            knowledge of the  Hunters Prey tapes found at  his store, and                              ____________            denied  that  he had  ever  copied  or distributed  tapes  of            Hunters Prey.   Ean-Chea testified that a  customer must have            ____________            rented  the tapes  at another  video  store and  accidentally            returned them to Overseas Video.                                            ____________________            5.  "Piratical" copies are copies  made without authorization            of the copyright owner.  H.R.  Rep. No. 1476, 94th Cong.,  2d            Sess. 162, reprinted in 1976 U.S.C.C.A.N. 5659, 5785.                       _________ __                                         -21-                                          21                      The  function of the district court acting as fact-            finder was to determine, by  weighing all of the evidence, if            Gamma had met  its ultimate burden of persuasion.   The court            concluded  that it had not.  The court found that "[t]he only            direct evidence with  respect to Hunters Prey is  that at the                                             ____________            time of the raid there were ... 10 or 11 tapes, in a box near            the  counter."     Viewing  this  evidence  along   with  the            circumstantial  evidence, which  consisted  primarily of  the            fact  that videotape copy  machines were found  at Ean-Chea's            store,   the  district  court   found  that  either   of  two            conclusions were possible:   either (1) appellant  had copied            tapes of Hunters Prey and/or held them out for  distribution;                     ____________            or (2) the tapes belonged  to another store and some customer            erroneously  returned them to Ean-Chea's store.  According to            the  district court,  the latter  "is  an equally  believable            version on the basis of the evidence ...."  Id.                                                          ___                      Taken as  a whole the court found that the evidence            was ambiguous to the extent that it was "not prepared to draw            the inference"  that Gamma  wished it to  draw, namely,  that            Ean-Chea either copied or  distributed videotapes of  Hunters                                                                  _______            Prey.            ____                      Although  the  evidence   could  have  supported  a            finding  of  infringement,  the  district  court  credited  a            plausible, lawful explanation  for the presence of  the tapes            at Ean-Chea's store.  It is established beyond cavil that the                                         -22-                                          22            trial judge is in the best position to assess the credibility            of  witnesses, see  Wainwright  v. Witt,  469  U.S. 412,  428                           ___  __________     ____            (1985) (assessing the credibility of witnesses  is peculiarly            within  the trial judge's province), and great deference must            be given  to a trial  court's findings  based on  credibility            determinations.      Rodriguez-Morales    v.   The   Veterans                                 _________________         ______________            Administration,  931 F.2d 980,  982 (1st Cir.  1991).  "Where            ______________            there   are  two  permissible  views  of  the  evidence,  the            interpretation assigned by the fact-finder  must be adopted."            Id.    Given the  restricted  nature  of  our review  of  the            ___            district  court's findings  of fact,  we cannot  say that  it            clearly  erred  in finding  that  Gamma failed  to  carry its            burden  of proving that Ean-Chea had either made unauthorized            copies or unauthorized rentals of videotapes of Hunters Prey.                                                            ____________                      Gamma argues that  it is entitled to four awards of            statutory  damages  for  Ean-Chea's willful  infringement  of            episodes  thirteen through  sixteen of  Jade Fox.   Under the                                                    ________            Copyright Act a party may  seek an award of statutory damages            "in lieu"  of actual damages.   17 U.S.C.   504(c).   Section            504(c) provides  for an award  of statutory damages  "for all            infringements involved in the action, with respect to any one                                                  _______________________            work,"  and further  provides  that  for  "purposes  of  this            ____            subsection, all the parts of a compilation or derivative work                                         -23-                                          23            constitute  one work."    17  U.S.C.     504(c)(1)  (emphasis            added).                      The district  court gave  Gamma a  single award  of            statutory  damages.    Although Ean-Chea  was  found  to have            infringed  upon the copyrights  in four separate  episodes of            Jade Fox, the court found that these episodes constituted one            ________            "work"  for purposes of  computing statutory damages.   Since            the   district   court's   findings  on   this   issue   were            substantially influenced by  its choice of a  different legal            standard  than  we  apply, its  determination  on  this mixed            question of  law and  fact is entitled  to less  deference on            review than would be  accorded a pure  finding of fact.   See                                                                      ___            United States v. Howard, 996 F.2d 1320, 1327 (1st Cir. 1993);            _____________    ______            see also Picture Music, Inc.  v. Bourne, Inc., 457 F.2d 1213,            ___ ____ ___________________     ____________            1215  n.5  (2d  Cir.  1972)  (rejecting  "clearly  erroneous"            standard when reviewing  whether work was created  "for hire"            under   24 of Copyright Act).                        Our discussion  is guided by  the Second  Circuit's            recent decision  in Twin  Peaks  Productions v.  Publications                                ________________________     ____________            Intern., 996 F.2d  1366 (2d Cir.  1993).  The  issue in  Twin            _______                                                  ____            Peaks  was whether  eight  separately  written teleplays  (or            _____            videotapes of  eight televised  episodes)6 of  the television            program  Twin Peaks constituted eight works  or a single work                     __________                                            ____________________            6.  The court   indicated  that its  holding applied  whether            written  teleplays or videotaped  television episodes were at            issue.  Twin Peaks, 996 F.2d at 1381.                    __________                                         -24-                                          24            under     504(c).     The  district  court  found   that  the            infringement  of  each  episode warranted  its  own  award of            statutory damages, and the court of appeals affirmed.                      The  eight  Twin  Peaks  episodes,  as  the  Second                                  ___________            Circuit explained, "represent  a current television  genre in            which  one  or  more  plots  continue  from  one  episode  to            another."   Id. at  1381.   In fact, Twin  Peaks carried  the                        ___                      ___________            point  of  the  basic  plot  -  who  killed  Laura  Palmer  -            throughout  its  first season.    On the  issue  of statutory            damages, the court stated:                      The  author of  eight  scripts for  eight                      television episodes is not limited to one                      award of  statutory damages  just because                      he or she can continue the plot line from                      one  episode  to  the next  and  hold the                      viewers'  interest  without  furnishing a                      resolution.     We  might  well   have  a                      different situation if  a book written as                      a  single  work  was   then  adapted  for                      television as  a group  of episodes,  for                      example,    the    six-part    television                      adaptations  of  John  LeCarre's "Tinker,                      Tailor,  Soldier,   Spy"  and   "Smiley's                      People."    Even in  such  circumstances,                      though  there  would  be   but  one  book                      infringed, there might be separate awards                      for   infringement   of   each  televised                      episode.             Id.   The Second Circuit  found that Twin  Peaks was an  easy            ___                                  ___________            case,  and that  the eight  teleplays  or televised  episodes            clearly constituted  eight separate  works.   While our  case            strongly  resembles Twin Peaks,  we pause here  to assay some                                __________            differences.                                         -25-                                          25                      First, the copyrights  in episodes thirteen through            sixteen of Jade Fox were  registered on a single registration                       ________            form, while the eight episodes of Twin Peaks were "separately                                              __________            copyrighted." Id.  Second, there was no evidence submitted as                          ___            to  whether the scripts for episodes thirteen through sixteen            of  Jade Fox  were  separately  written,  whereas  the  eight                ________            episodes of  Twin Peaks  were based  upon separately  written                         __________            teleplays.  Id.                        ___                      We take a step  back, at this juncture,  to discuss            some  background concerning  statutory  damages in  copyright            actions.   Unlike  the  Copyright Act  of  1909, under  which            statutory  damages were available for "each infringement that            was separate," Robert  Stigwood Group, Ltd. v.  O'Reilly, 530                           ____________________________     ________            F.2d 1096,  1102 (2d Cir.  1976), the  present Copyright  Act            "shifts   the  unit  of   damages  inquiry  from   number  of            infringements to number  of works."  Twin Peaks,  996 F.2d at                                                 __________            1381.  The House Report concerning   504(C)(1) makes it clear            that,                      although the minimum  and maximum amounts                      [of statutory  damage awards]  are to  be                      multiplied  where  multiple  "works"  are                      involved in  the  suit, the  same is  not                      true with respect to multiple copyrights,                      multiple   owners,   multiple   exclusive                      rights, or multiple registrations.            H.R. Rep.  No. 1476, 94th  Cong., 2d Sess. 162,  reprinted in                                                             _________ __            1976 U.S.C.C.A.N. 5659, 5778.                                         -26-                                          26                      The term  "work," is undefined under  the Copyright            Act.   Although the  Twin Peaks court  did not  undertake the                                 __________            task of  supplying a  definition,  one court  of appeals  has            posited  that "separate  copyrights  are not  distinct  works            unless  they can  `live  their own  copyright  life.'"   Walt                                                                     ____            Disney  Co. v.  Powell, 897  F.2d 565,  569 (D.C.  Cir. 1990)            ___________     ______            (quoting Stigwood  530 F.2d at 1105).7  The test set forth in                     ________            Walt Disney  is a functional  one, with the focus  on whether            ___________            each expression (or in  our case, television episode)  has an            independent  economic value and  is, in itself,  viable.  See                                                                      ___            Walt Disney, 897  F.2d at 569;  see also 3 Nimmer   14.04[E],            ___________                     ___ ____   ______            at 14-64.                       The  district court's  determination that  all four            episodes  of Jade  Fox were  one  "work" for  the purpose  of                         _________            statutory damages was  based on two facts:   that Gamma sells            or rents only  complete sets of the Jade Fox  series to video                                                ________            stores, and the copyrights in the four episodes at issue were            registered on  one form.   The former fact, according  to the            district  court,  "suggests  plaintiffs  view  the  Jade  Fox                                                                _________            episodes as  one work  for economic purposes  notwithstanding                                            ____________________            7.  Walt  Disney arose  under the  Copyright Act of  1976 and                ____________            involved the infringement of six copyrights, each  protecting            a distinct pose of either Mickey  or Minnie Mouse.  The court            held that  the defendant had  only infringed upon  two works,            Mickey  and  Minnie,  for  purposes  of  assessing  statutory            damages.   See Walt Disney, 897 F.2d at 570 ("Mickey is still                       ___ ___________            Mickey whether he is smiling or frowning, running or walking,            waving his left hand or his right.").                                         -27-                                          27            the rental  by consumers of only a few  episodes at a time or            its production  in separate  episodes[,]"   while the  latter            fact  "indicates  [that]   TVB  [the  author  of   Jade  Fox]                                                               _________            considered  at least these four episodes to be one work."  We            do not find the district court's reasoning compelling.                      Starting with the district court's second point, we            find that  there is simply  no authority for drawing  such an            inference.   Under regulations  promulgated by  the Copyright            Office, the copyrights in multiple works may be registered on            a single form, and thus  considered one work for the purposes                                                         ________________            of  registration, see 37 C.F.R.   202.3(b)(3)(A), while still            ________________  ___            qualifying as  separate  "works"  for  purposes  of  awarding            statutory damages.8   We are  unable to find any  language in                                            ____________________            8.  The regulation states in pertinent part:                      For  the  purpose  of registration  on  a                      single application and upon  payment of a                      single  registration  fee,  the following                      shall be considered  a single work:   (A)                      In  the  case of  published  works:   All                      copyrightable elements that are otherwise                      copyrightable  as  self-contained  works,                      that  are included  in a  single unit  of                      publication, and  in which  the copyright                      claimant is the same ....            37 C.F.R.   202.3(b)(3)(A).  Although we question whether the            four episodes of Jade  Fox at issue here were "included  in a                             _________            single unit  of publication," since episodes thirteen through            sixteen  of Jade  Fox are contained  on two  videotapes, this                        _________            goes to  the issue  of TVB's  compliance  with the  copyright            regulations, not whether Gamma is entitled to multiple awards            of  statutory  damages.   As  the  legislative  history to               504(c)(1)  makes clear, the number of copyright registrations            is not  the unit of  reference for determining the  number of            awards of statutory damages.  Moreover, we note that the Twin                                                                     ____            Peaks  court  did  not  rely   on  the  number  of  copyright            _____            registrations  in reaching its  result.  See  Twin Peaks, 996                                                     ___  __________                                         -28-                                          28            either  the statute  or  the  corresponding regulations  that            precludes a copyright  owner from registering the  copyrights            in multiple  works on a single registration  form while still            collecting an award of statutory damages for the infringement            of each work's copyright.                      With regard  to the  district court's first  point,            that  Gamma sells  or rents  only complete  Jade Fox  sets to                                                        ________            video  stores, we  do not  find this  fact persuasive  in the            present inquiry.   A distributor's decision  to sell or  rent            complete sets of a series to video stores in no way indicates            that each  episode in the  series is unable to  stand alone.9            More significant for  present purposes is  the fact that  (1)            viewers who rent the tapes  from their local video stores may            rent as few or as many tapes as they want, may view one, two,            or twenty episodes  in a single sitting, and  may never watch            or rent all of the episodes; and (2) each episode in the Jade                                                                     ____            Fox series was separately produced.            ___                                            ____________________            F.2d at 1381.            9.  If the distributor of the Rocky series of motion pictures                                          _____            required video stores to purchase  all five of the movies, or            alternatively, packaged the movies as a boxed set for resale,            the five movies would not  suddenly become one "work" for the            purpose  of  damages.   See, e.g.,  Cormack v.  Sunshine Food                                    ___  ____   _______     _____________            Stores,  Inc.,  675  F.  Supp.  374,  377  (E.D. Mich.  1987)            _____________            (written  tests  designed  to  detect honesty  and  emotional            status, respectively in  the workplace are not one "work" for            the  purpose of  statutory  damages  just  because  they  are            packaged and sold together).                                         -29-                                          29                      While our case arguably falls somewhere between the            Twin Peaks and the hypothetical novel turned television mini-            __________            series scenario presented therein, 996 F.2d at 1381, it  more            closely resembles  Twin Peaks  than the  hypothetical.   Each                               __________            episode of Jade Fox was produced independently from the other                       ________            episodes,  and  each   episode  of  Jade  Fox  was  aired  on                                                _________            television  independently from  the preceding  and subsequent            episodes.10    In  addition,   unlike  the  "Tinker,  Tailor,            Soldier, Spy" hypothetical in  Twin Peaks, our case  does not                                           __________            involve the infringement  of a single book, but  rather, much            like   Twin  Peaks,   involves   the  infringement   of  four                   ___________            separately-produced television episodes prepared as part of a            weekly (or perhaps daily) series.   We conclude that Gamma is            entitled to four  awards of statutory damages  for Ean-Chea's            infringement of four separate "works."                       As its final  argument on  its cross-appeal,  Gamma            contests the  district court's attorney's fee award.  The fee            application requested a total of $80,198.62  and costs in the            amount of $7,608.87.   The district court awarded  all of the            requested  costs,  but  substantially  reduced  Gamma's   fee            request,  awarding $12,500.   This reduction  was based  on a            multitude of factors.                                            ____________________            10.  Because  no English  translation  of  the  episodes  was            provided below,  the district court  was unable to  study the            episodes' plots to gauge their relation to each other.                                         -30-                                          30                      Generally speaking,  the district court  found that            Gamma had  "over-prosecuted this  case, pursued  infringement            actions on works that were not registered, and achieved  very            limited  success."  More  specifically, the court  found that            plaintiffs  had  originally  "filed  a  six-count   complaint            alleging a massive scheme of wrongdoing, ... seeking millions            of dollars in damages," and then, armed with a court order,                      raided  Ean-Chea's  store  ... apparently                      expecting  to  uncover  a huge  cache  of                      infringing materials.  Instead, what they                      found  was   a  single  set   of  pirated                      `Hunters Prey'  tapes located  under some                      trash in a cardboard  box by the counter,                      some high speed  video copying equipment,                      and a business  record that reflected the                      shipment of  one unauthorized  copy of  a                      program entitled `Serpentine  Romance' to                      Montreal.            The   court  further  noted  that,  as  trial  neared,  Gamma            dismissed the  five non-copyright claims, "and  conceded that            because  [the  copyrights in]  Serpentine Romance  and twelve            episodes of  Jade Fox  had not been  registered prior  to the                         ________            filing of the lawsuit, they too fell out of the case."                      With  respect to Gamma's fee request, the court had            much to say:                      many  of  the [time-sheet]  entries  were                      extremely  vague,  making   it  virtually                      impossible  ...   to  determine   whether                      requested hours were excessive, redundant                      (especially with respect to how New  York                      and  local  counsel  divided  tasks),  or                      otherwise  unnecessary,  as  well  as  to                      parse  out  attorney  time  and  expenses                      related  to the  unsuccessful claims  and                                         -31-                                          31                      [voluntarily]  dismissed  portion  of the                      case.            The district court  then pointed out numerous  ambiguities in            the  attorneys' records, as well as instances where telephone            conversations  between counsel  were  reflected  only in  the            records  of one  of the  two  attorneys.   Finally the  court            provided   examples  of   charges   that  appeared   facially            excessive, such as billing the client for leaving a telephone            message when  the person  telephoned was  absent.   The court            settled  on  a   fee  award  that  it   believed  represented            reasonable compensation for the nature of the work performed,            taking into account how much time was actually expended.                      The  district  court  found  that  the   time-sheet            entries submitted  by  Gamma's attorney's  were so  ambiguous            that  it was  not clear  which  claims in  the complaint  the            entries related  to.  For  example, the district  court noted            entries that stated merely "Draft documents," "Work on Case,"            "Review of  Discovery," and  "study file,  legal research  re            Mass. case."                      We review fee  awards for abuse of  discretion, see                                                                      ___            Foley  v. City of Lowell, Mass., 948 F.2d 10, 18-19 (1st Cir.            _____     _____________________            1991),  and  "'normally  prefer to  defer  to  any thoughtful            rationale  and  decision developed  by a  trial court  and to            avoid exhaustive second guessing.'"  Domegan, 972 F.2d at 421                                                 _______            (quoting Grendel's  Den, Inc.  v. Larkin,  749 F.2d  945, 950                     ____________________     ______            (1st Cir. 1984)).                                         -32-                                          32                      Under the circumstances, the district court clearly            acted   within  the  broad   limits  of  its   discretion  by            substantially  discounting Gamma's fee  request.   Finding no            abuse, we affirm the district court's fee award.                      Each party contends that, under 17 U.S.C.   505, it            is  entitled to recover its costs, including attorney's fees,            incurred on this appeal.  In addition, Gamma seeks sanctions,            in the  form of attorney's  fees, under  Fed. R. App.  P. 38.            Rule 38 allows for fees and double  costs to be awarded to an            appellee  where the appellant has brought a frivolous appeal.            While Ean-Chea did not prevail on his  appeal, we do not feel            that this  case warrants  the imposition  of sanctions  under            Rule 38.                      While  it is true that, under    505, the Copyright            Act, this court may  make an award of attorney's  fees to the            prevailing  party for services  rendered on appeal,  see Twin                                                                 ___ ____            Peaks, 996 F.2d  at 1383;  see  also 3 Nimmer    14.10[E], at            _____                      ___  ____   ______            14-129 ("An award of attorney's fees may be made for services            rendered  on appeal  as  well  as at  the  trial level"),  we            decline to do so.  Because  he did not prevail on his  appeal            or the cross-appeal, Ean-Chea is  not entitled to an award of            fees.  The appeal, however, was not frivolous, and Gamma only            achieved  limited success on its cross-appeal.  Therefore, in            the  exercise of  our discretion  we decline  to  award Gamma                                         -33-                                          33            appellate fees.   Gamma is,  of course, entitled to  costs on            appeal.                                         III.                                         III.                                      CONCLUSION                                      CONCLUSION                                      __________                      On  Ean-Chea's appeal, the judgment of the district            court is affirmed.   On Gamma's cross-appeal, the judgment of            the  district court is  affirmed except  that we  reverse its            finding as  to the number  of "works" infringed upon  by Ean-            Chea for the  purpose of calculating  statutory damages.   We            hold that  Ean-Chea infringed upon  four works, not one.   We            therefore vacate the district court's judgment ordering  Ean-            Chea to pay Gamma $2,500  in statutory damages, and remand to            the district  court for  a redetermination  of damages  based            upon our holding.                                         -34-                                          34
