                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 12 2009

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NEW FORM, INC., DBA Laguna Films,                No. 08-56001

              Plaintiff - Appellee,              D.C. No. 2:02-cv-02296-FMC-E

  v.
                                                 MEMORANDUM *
TEKILA FILMS, INC.; MARCO
INIGUEZ, an individual,

              Defendants - Appellants.


                   Appeal from the United States District Court
                       for the Central District of California
                 Florence-Marie Cooper, District Judge, Presiding

                           Submitted November 6, 2009**
                               Pasadena, California

Before: GOULD and BEA, Circuit Judges, and HART, *** Senior District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable William T. Hart, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
      Tekila Films, Inc. and Marco Iniguez (“Tekila Films”) bring this appeal after

a jury trial in which they were found to have willfully infringed fifteen of New

Form’s copyrights to Mexican films. Before trial, the district court rejected Tekila

Films’s proposed jury instruction defining “statutory damages” under the

Copyright Act. See 17 U.S.C. § 504(c). Tekila Films appeals that ruling, and

claims that the jury’s subsequent award of $1,312,500 in statutory damages to New

Form was excessive. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.

      The district court did not abuse its discretion in declining to adopt Tekila

Films’s proposed jury instruction that would direct the jury to measure statutory

damages in relation to actual damages using the “fair market value” of the

infringed works. A statutory damages award within the limits prescribed by

Congress is appropriate “[e]ven for uninjurious and unprofitable invasions of

copyright.” F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233

(1952). We have consistently held and stated that statutory damages are

recoverable without regard to the existence or provability of actual damages. See,

e.g., Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc.,

259 F.3d 1186, 1194 (9th Cir. 2001); L.A. News Serv. v. Reuters Television Int’l,

Ltd., 149 F.3d 987, 996 (9th Cir. 1998); Peer Int’l Corp. v. Pausa Records, Inc.,


                                          2
909 F.2d 1332, 1337 (9th Cir. 1990). There is no required nexus between actual

and statutory damages under 17 U.S.C. § 504(c). Accordingly, the district court

did not err in refusing Tekila Films’s proposed instruction, which itself would have

been a misstatement of the law.

      Tekila Films also alleges that the jury awarded excessive damages because

the statutory award was “far in excess of and disproportionate to the actual

damages” New Form suffered. This argument is a retooled version of the jury-

instruction argument above. Tekila Films’s excessive-verdict claim turns on the

incorrect premise that statutory damages must be tethered to actual damages.

Because there is no such requirement, the jury’s verdict cannot be deemed

excessive on that basis.

      AFFIRMED.




                                         3
