here because in july of two thousand and ten defendants and destroyed all of the plaintiffs artwork his inventories of his artwork and other personal property that plaintiffs had stored for years in that he rented from the defendants based on the defendant's destruction plaintiffs sued for violation of his moral rights under the visual artist rights act which are called bar a nine hundred ninety amendment to the number two reversal of the district court's improper reduction of the jury verdict by one hundred twenty thousand dollars which plaintiff elected as sketchy tory damages and on his far a claim and number three relief from the court and the leading case there is buckhannon board and care home versus west virginia department of health and human resources the magnitude of the when it's a relatively even a nominal apartment that the claim was fourteen hundred fifty seven how many did the jury find the jury found that for the jury found four were protected as far but that that is not the that's not the law mean you know the law isn't that you take a claim and you break it up into little pieces so why is that there is there is one's winner and there's one loser cases in copyright cases where defendants have received fees it's because they have clear wins the case was dismissed the motion for summary judgment was denied i mean a clear win here the plaintiffs got that one hundred twenty thousand dollars one hundred twenty thousand dollars verdict that he prevail nobody else didn't join judge copal recognize that there are this may be a hard question and it may be a disputed question i think that's what explains why you put a footnote six in his order but footnote six says that that his decision on the attorney's fees would be the same even if he considered you a prevailing party well i mean isn't that so are we given that footnote are we operating under abusive review it's in other words  the proper analysis to determine whether or not be plaintiff was entitle to fees under phobia vs fantasy's united states supreme court case you can't just you can't just  was made there was no discussion and if he had done a proper phobia analysis he would it which is required he would have had to consider frivolousness motivation objective and reasonable ness the need to advance focusing factors and this court has not hesitated to remand cases where the district court failed to explain the grounds of its decision in sufficient depth for the court to understand whether the determination was reasonable the susan walking doll company versus ashley drake gallery is that one case and in mostly memories of vs short use only in turning to the district courts improper reduction of the verdict the jury awarded play to four hundred twenty thousand dollars and that's what he's entitled to the one hundred twenty thousand dollars statutory damages the damages awarded to plaintiff under state law were measured differently than the damages that plaintiff elected on his bar a claim and the jury instructions made this clear jury instruction number forty five of actual damages for violating plaintiff's tangible property rights under state law and that was the fair market value of the property immediately before the occurrence and that was the same measure of a for actual damages under vara as described in jury instruction number forty three but the measure of actual damages under bar became irrelevant and not operative once plaintiffs elected statutory think he's wrong about that but that's what he concluded i'm not sure and sam right about that well first of all i'm not sure that's that's we concluded i think he just blew by statutory damages and on and off in full didn't he did ok but he put a footnote he put footnote two in his opinion and in footnote two of his opinion he says statutory damages are merely an alternative form of compensating the plaintiff weak weak that is not that's not it's not accurate at ok if he's right about that the offset makes sense right and here's why he's not right about that statutory p m t curious and tender say that statutory damages and actual damages serve different purposes actual damages are designed to  compensate for as he said the at the fair market value of the property actual tangible property rights statutory damages under far are designed to to change it's to deal with something different and if you look at the german struction which is jury instruction number forty four that lays out the measure of damages and it says it makes it clear that it's not measured by the fair market value of the prakriti it's it's based on other factors the expenses that the defendant say the property or the revenues the plaintiff lost because of the destruction the difficulty of proving actual damages the circumstances of the struction and deterren that's true well there are two different things that we have two different things here we've got vara and we've got the state law claims two different bases for relief there both relate to the to the destruction of  hearts and that's what we have here you know this record made that distinction and honey district court in this case made that distinction and i think the district court completely misread however because the common law claims in fact made determinations as to the value of the property that was lost that most of the case would then travel back to the district court if you were to reverse on the bar claims is not merely a claim in which you receive statutory damages you can receive either or and in fact in this case the jury verdict form had two separate lines one where the jury was to find what the actual damages under a vara were and one separate line under which they could find what the statutory damages had to borrow were only after the jury had rendered its verdict was plaintiff then given the opportunity to choose which one he wanted to pick in this case the jury found that both the actual damages for the four pieces that were lost and the statutory damages were the same they said they're both worth they're both worth one hundred twenty thousand dollars and so that's why in the common law verdict where they awarded three hundred thousand dollars by virtue of the way that the instructions are you have to assume that the hundred twenty thousand dollars of actual damages that the plaintiff would see for his artwork under vara and just that's a little unusual in that it's a it's a very nice thing for plaintiffs i will say it is something that has been determined by many courts it's something that is i think fairly read into lara and thorough was passed i think in order to try and really frankly give artists a tremendous number of more rights than even typical copyright holders find i want to ask you a question about the argument years dancing here ok so when that choice is made the choice the judge  pointed to in the plaintiff shows statutory damages if we look at that verdict form the one that you were pointing out can we just can we for all practical purposes here just assume that the top part is just  out the moment that the plaintiff makes that choice in other words the plaintiff says i want to hundred twenty thousand of statutory damages right yes so he's opted not to take any in actual damages yes ok it's a little confusing here because of the same number right ok but he's opted for statutory damages cracked ok what throws me off about that is that in your brief you say on page thirty four only that actual  images were awarded for the for our works and that's what was deducted from the common law verdict but that's not right what was netted against the common law verdict or the statutory damages because the plaintiffs opted to take  zero in actual damages so the moment he made that choice the top part of the form became zero except that and perhaps he didn't explain this very well in  brief the actual damages that were awarded under the common law necessarily includes actual damages for those for artwork so because the jury was specifically instructed  damages for everything that was in this case i think you're probably right about that but why why does that mean that the that you then net against back statutory damages well our argument is not that we are net the statutory damages under vara the plaintiff is not entitled to both actual and statutory and because we know from the jury verdict form that the jury specifically statutory i think your argument rises and falls on whether statutory damages are compensatory well i really do and there is certainly there were certainly as you made the point earlier in the footnote of judge palos order he talks about the factor he mentions the fact that there are there is a compensatory in nature argument and again i don't necessarily agree that way you have information about what the jury decided and the jury said this is worth one hundred twenty thousand dollars and everything together is worth three hundred thousand dollars i don't think that a plaintiff can then essentially nullify that jury verdict by saying no we're going to treat the actual that they found  for statutory it effectively allows the plaintiffs an end run around flores principle that you cannot get both statutory and actual for the same stop and so if if it's true that by opting for statutory zero then and they know the bottom out with one twenty the plaintiff is always going to choose the one twenty over zero more importantly the plaintiff would be entitled to four hundred twenty thousand dollars in that instance ok so what you're arguing then is what's  top part of the form yes because it's not zero because you can't get both actual and statutory damages under vajra that's one virus specifically says you cannot have both and both in the form of the one part of actually damages was included in the common law claims and so you can't that's that's exactly the point you cannot get both under the statute and by using the common law claims to say well i can get the actual that the awarded smear only under the common law claims despite the fact that we know that's exactly the same as what they awarded under vajra that's a double recovery absolutely let me ask you just a general question is who was there any evidence of of the plaintiff in this case selling actually selling our work no he in fact admitted repeatedly that he had never sold a single piece he never saw him painting correct he never sold anything he had photographs allegedly he never sold anything but the jury determined  was of some value well your honor that's what's interesting about this and we haven't even really counsel hasn't talked yet about the felony conviction and yet one of the more interesting aspects about seeking a new trial because of the admission of the felony conviction is that the plaintiff wasn't prejudiced by that the jury did in fact woodward him three hundred thousand dollars cut hundred twenty of which were for these four alleged artworks and that that doesn't reflect any sort of prejudice against the fact that he was convicted of fraud and lying to the f b i fourteen years prior to this case so that perhaps that also goes to the point about prevailing party they found that for artworks were protected under bar and they awarded the maximum amount within the range under bar of statutory damages three hundred thirty thousand dollars for each work that's assuming they don't they did not find it not assuming but they specifically found there was no willfulness and no innocence so within the range of statutory damages they said thirty thousand for each work well each of those four artworks w awarded a high damage award however the council made an interesting point about saying you can't break up a claim when talking about prevailing with the prevailing parties you can't take a single claim and break it up into different parts but that's not what we're doing the plaintiffs brought one thousand four hundred four five hundred forty seven different claims if he had brought one claim and said this one piece of art is subjective and we're entitled to damages under that under that under vara for that one piece of art that could have been a trial in another itself that was one complete fool is to claim that stood on its own two feet and so the fact that he won four of his claims does not render him the prevailing party for one thousand four hundred fifty six fifty three of the remaining claims on which the defendants very clearly prevailed and would be entitled to race judicata if they try if you tried to sue them again to say you destroyed this piece of art and that is why the district court was quite correct in determining that there really wasn't a determining who was the prevailing and sorry he did determine there was no prevailing party had to determine the prevailing party there are certain factors that one can consider in deciding then they are after whether you are tort award attorneys fees he did not go through each and every one of those factors however his decision on who the prevailing party was did in fact touch on a lot of those issues the fact that this this case which rendered a three hundred thousand dollars verdict was essentially turned into an eleven million dollar case which is why it went for as long as it did and there was so much at stake here plaintiff is appealing not because he didn't win because he did in fact get three hundred thousand dollars but because he didn't get eleven million dollars is what it was which is what he felt that his artwork was worth similarly the credibility factor is here in terms of the admission of his of his conviction that the jury in a warning him this money in finding the three of these ar were were protected under vara found that one hundred eighty thousand dollars worth of other things that were not protected under barak were also destroyed in terms of whose credibility was really at stake here i would posit perhaps the jury believed less the plaintiffs expert who opined that these aren't work supposedly worth eleven million dollars it's not that they didn't believe the plaintive the plaintiffs said i had lots and lots of stuff in there i had all my art i had this and that and they wanted him three hundred thousand dollars for that despite the fact that the defense witnesses uniformly said this was a bunch of junk and it was dirty and it was dark and it was something that needed to go in the dumpster so the conviction didn't even have that in past you your experts indicated they valued a set of value were no value on the poor or work we did we had our expert i believe he assessed a value of just a little over five thousand dollars for everything that was  all of the cases that plaintiffs lights on the prevailing party issue which are civil rights cases where there is a a much more overweening public policy in favor of awarding plaintiffs who even prevailed slightly on their claims with their attorneys fees this is a pure and simple copyright act claim where both parties are to be treated equally for any vs fantasy which is cited extensively by the parties is clearly a case in which is a case in which they specifically the supreme court specifically says both sides are to be treated equally and frankly if this court determines that the the lower court was wrong in determining that there was no prevailing party the correct remained would be to send it back to determine who of either party was prevailing and perhaps both were because again the defendants one one thousand four hundred fifty three claims independent stand alone copyright act bar a that i think the issue there is he didn't necessarily plaintiff didn't necessarily request less for the four artworks he did in fact get a pretty decent damage award for just those fo received he received absolutely zero for the fourteen hundred or so other artworks that he brought his claims on and in those cases in those claims stand alone claims the defendants clearly what ailed what was presented to the jury to establish there were fourteen hundred plus art works on the second floor plaintiff himself prepared great big notebooks in which he had each page represented or had either a visual picture if you had one of what he claimed was an artwork or it would artwork maybe a third between a third and a half i want to say i didn't account so i don't and that's it for my time thank you very much  found number two when we when we it's clear that the well but the statutory get that the statutory damages are getting at something different than actual damages and  and i think judge starr you got it right when you want you cross that off all you're looking at is the statutory damages which do serve different purposes which you can see clearly by looking at jury instruction number forty three and if you look at it if you look at nintendo they also make that distinction i mean it's really it's really quite quite different the third part the third thing i'd like to talk about is the prevailing party and you get better also you talked about footnote six in the court's opinion he says in the event the court had to declare only one part party as the prevailing party in this case it is not clear who that would be that's a legal error i mean if you look at if you look at the case law that judge candidates said we didn't get as much as you want that's right you can twenty one and twenty two of our reply brief where defendants in happy write cases have gotten fees it wasn't it wasn't and it wasn't an either or somebody prevailed somebody didn't prevail and where would defendants specific things that you have to consider and there was the sight in our brief there are a bunch of cases where this court has sent cases back to the district court because they couldn't tell the basis upon which  was making its focus the analysis and some of the you could tell you didn't want to do what you did want to do what you like the judge you thought it was close but you felt like you had to and in this case it wasn't even close merely acknowledging that there