                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                   F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                                  October 1, 2004

                                ______________________                         Charles R. Fulbruge III
                                                                                       Clerk
                                     No. 03-30102
                                ______________________


                                     SHAHRAM NAGHI,

                                Plaintiff - Appellee,

                                              v.

                          EUROPE’S FINEST, INC., ET AL.,

                                        Defendants,

                    CHARLES SHAW d/b/a MARDI GRAS TRADING,

                                Defendant – Appellant.

                                ______________________

               Appeal from the United States District Court
                  for the Eastern District of Louisiana,
                            USDC No. 00-CV-2231
                          ______________________


Before SMITH, PRADO, and PICKERING, Circuit Judges.

PER CURIAM:*

       On June 25, 2002, a jury found Charles Shaw liable for

infringing Shahram Naghi’s copyright on a design for a hemp leaf,

Mardi Gras necklace.            The district court entered judgment against

Shaw and ordered him to pay Naghi $117,352 in fees and costs.



       *
        Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5TH
CIRCUIT RULE 47.5.4.

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Shaw appeals that judgment.

       On appeal, Shaw seeks a new trial on the grounds that (1)

the evidence was insufficient to support the jury verdict, (2) he

should be allowed an opportunity to assert an estoppel defense,

and (3) the district court’s rulings were so prejudicial that he

did not receive a fair trial.                 Shaw also asks this court to hold

that the district court abused its discretion in awarding

attorney’s fees.          We AFFIRM the judgment of the district court.

       Sufficiency of the Evidence

       Shaw first argues that the evidence was insufficient to

support the finding that Naghi possessed a valid copyright.

Because Shaw failed to properly renew his motion for judgment as

a matter of law at the close of all evidence as required by FED.

R. CIV. P. 50,1 we review the sufficiency of the evidence for

plain error only.           See Adames v. Perez, 331 F.3d 508, 511 (5th

Cir. 2003).        Under the plain error standard, we may set aside the

jury verdict and grant Shaw a new trial only if “the judgment

works a manifest miscarriage of justice,” examining “whether

there is any evidence to support the jury’s verdict.”                            Id. at

511-12.

       Shaw contends that Naghi’s necklace design, which contained

beads in the shape of hemp leaves, was not copyrightable under


       1
        Notwithstanding Shaw’s argument on appeal that his self-styled “Motion for Entry Into
the Record” constituted a post-verdict motion for judgment as a matter of law, we conclude that
he did not comply with the requirements and purposes of FED. R. CIV. P. 50.

                                               2
the “merger doctrine.”    The merger doctrine provides that if an

idea is capable of only one manner of expression, the idea and

the expression “merge” and are exempted from copyright

protection.     See Veeck v. Southern Bldg. Code Congress Int’l,

Inc., 293 F.3d 791, 801 (5th Cir. 2002).      Shaw argues that a hemp

leaf, as a thing in nature, is capable of only one manner of

expression, and, therefore, Naghi’s necklace design was

uncopyrightable.

     An examination of the record reveals ample evidence to

support the jury’s finding that Naghi held a valid copyright over

the necklace design.    The evidence indicated that hemp leaf beads

were capable of more than one mode of expression, and that

Naghi’s particular expression of them, within the context of the

necklace as a whole, was unique.       Further, because Shaw failed to

argue at trial that the evidence was insufficient under the

merger doctrine, the judgment was not manifestly unjust.

Accordingly, we will not disturb the jury’s verdict by granting a

new trial.

     Estoppel

     Shaw also requests a new trial so that he may assert an

estoppel defense against Naghi.    Estoppel is an affirmative

defense that is waived if not raised at trial and will not be

considered for the first time on appeal.       See FED. R. CIV. P.

8(c); Henry v. First Nat’l Bank of Clarksdale, 595 F.2d 291, 298


                                   3
(5th Cir. 1979).

     Shaw concedes that he did not raise an estoppel defense at

trial.    In addition, the record indicates that estoppel was not

tried by implied consent, as permitted under FED. R. CIV. P.

15(b).    Finally, we disagree with Shaw that refusal to allow him

another opportunity to bring an estoppel defense will result in

manifest injustice.   Because Shaw could have raised the defense

of estoppel at trial but he failed to do so, that defense was

waived.

     Fair Trial

     Shaw next contends that he should be granted a new trial

because the district court abused its discretion in making

several discovery and evidentiary rulings, and that these errors

caused Shaw to receive an unfair trial.    In Latiolas v. Whitley,

we held that a new trial may be necessary when, in the context of

all the circumstances surrounding a trial, a party was

substantially prejudiced by an accumulation of trial errors such

that the trial was fundamentally unfair.   93 F.3d 205, 207, 210

(5th Cir. 1996).   Because the record here suggests no such

accumulation of errors, or that the trial was unfair or that Shaw

was substantially prejudiced, a new trial is not warranted.

     Attorney’s Fees Award

     Lastly, Shaw contends that the attorney’s fees award was

erroneous or excessive.   We review the district court’s


                                  4
attorney’s fees award for abuse of discretion.                           Strong v.

BellSouth Telecomms., Inc., 137 F.3d 844, 850 (5th Cir. 1998).

       We conclude that the district court did not abuse its

discretion in making the attorney’s fees award.                            First, the court

appropriately applied the factors set forth in Fogerty v.

Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994), and certain of

those set forth in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 717-19 (5th Cir. 1974).2                    Further, the record supports

the court’s determination that attorney’s fees were warranted

under those factors.             Although Shaw argued that attorney’s fees

should not be awarded because the litigation was so financially

burdensome for him, he submitted no evidence in support of this

argument.       In addition, the court noted that Shaw had been found

liable for copyright infringement in another case.                             Finally,

although Shaw argues that award was excessive in light of the

jury’s finding that he was not a “willful infringer,” attorney’s

fees awards are not statutorily conditioned upon a defendant’s

willfulness, bad faith, or unreasonableness.                          Hence, the district

court was within its discretion in awarding attorney’s fees to



       2
         The factors articulated in Fogerty, all of which were addressed by the district court, are:
(1) frivolousness; (2) motivation; (3) objective reasonableness (in the factual and legal
components of the case); and (4) the need for compensation and deterrence. Fogerty, 510 U.S. at
534 n.19. The four “Johnson factors” considered by the district court in this case are: (1) the time
and labor required to work on the case; (2) the attorney’s customary fee; (3) the amount of
damages involved and the results obtained; and (4) the experience, reputation, and ability of the
attorneys. Johnson, 488 F.2d at 717-19.

                                                 5
Naghi.

     For the foregoing reasons, we AFFIRM the judgment of the

district court.

AFFIRMED.




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