January 5, 1994   UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                     

Nos. 92-2016
   92-2132
   93-1504
   93-1518

              GAMMA AUDIO &amp; 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 &amp; 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  &amp; Shaw  was on
                                                       
brief for  plaintiffs appellees/cross-appellants Taing  Tao, Meng
I. Ung and  Chen V. Ung and  Marvin Feldman and Tetel  &amp; Feldman,
                                                               
P.C. on brief for plaintiff appellee/cross-appellant  Gamma Audio
  
&amp; 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 &amp;

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.

                          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 &amp;  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.

                          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.

                      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  &amp; 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.

                     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.

                          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.

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                              34
