### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2535

C HRISTIAN K. N ARKIEWICZ

‐ L AINE

, Plaintiff

‐ Appellant

,

v.

K EVIN C. D OYLE

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11

‐ cv

‐ 1826

— Frederick J. Kapala

, Judge

.

____________________

A RGUED A PRIL 5, 2019

— D ECIDED J ULY 19, 2019

____________________

Before F LAUM

, K ANNE

, and S CUDDER

, Circuit Judges

.

S CUDDER

, Circuit Judge

. This case arose from the destruc

‐

tion of personal property and artwork belonging to Christian

Narkiewicz

‐ Laine, an artist. Narkiewicz

‐ Laine stored his art

‐

work and other belongings in a space in Galena, Illinois that

he rented from the defendants. Years into the lease, the de

‐

fendants emptied the unit, destroying the majority of Narkie

‐

wicz

‐ Laine’s property. He responded by suing to recover for

the loss of his property. After a six

‐ day trial, the jury awarded2 No. 18

‐ 2535

him damages on multiple claims. Unsatis fi ed with his dam

‐

ages award, Narkiewicz

‐ Laine now appeals, challenging a

number of the district court’s rulings made along the way. We

a ffi rm.

I

The lease between Narkiewicz

‐ Laine and the defendants,

members of the Doyle family and a ffi liated entities, began in

2004. About six years later, the defendants cleared the rental

space and discarded the majority of his property, including

the only records he had listing the property stored in the unit.

Narkiewicz

‐ Laine then brought this suit, pursuing claims un

‐

der an amendment to the Copyright Act known as the Visual

Artists Rights Act of 1990, 17 U.S.C. § 106A, to recover for the

destruction of his artwork. For certain types of visual art, the

Act confers upon artists rights to a tt ribution and integrity—

including, for particular qualifying works, the right to pre

‐

vent the work’s destruction. See Kelley v. Chicago Park Dist.

,

635 F.3d 290, 296 (7th Cir. 2011).

Narkiewicz

‐ Laine added common law claims for trespass,

conversion, and negligence under Illinois law. He based these

la tt er claims on a broader theory of recovery that would allow

him to obtain damages for all of his lost property—the en

‐ tirety of his destroyed artwork and other items of personal

property.

The case proceeded to trial. Narkiewicz

‐ Laine testi fi ed on

the central issue of what property and art had been stored in

the rental unit. He did so by introducing a list of all the art

‐

work and personal property, explaining that he prepared the

inventory after learning of the destruction by checking his

personal records, contacting institutions where his work hadNo. 18

‐ 2535 3

been exhibited, and a tt empting to obtain photographs of his

work from friends. The inventory listed 1,457 pieces of

Narkiewicz

‐ Laine’s own artwork, items of personal property,

and artwork created by others that he had stored in the rental

unit. He asked the jury to award him $11 million for his losses.

For their part, the defendants presented evidence that

Narkiewicz

‐ Laine had missed multiple rent payments and

long since stopped paying for the utilities for the property.

The defendants also underscored that, prior to emptying the

space, they saw nothing resembling art or valuable personal

property in the rental unit. The defendants took the position

that they disposed of junk, not art.

In the course of the trial, the defendants impeached

Narkiewicz

‐ Laine with a prior conviction for lying to an FBI

agent. Prior to trial, the district court had denied Narkiewicz

‐

Laine’s motion to exclude evidence of the conviction, which

was over ten years old.

The jury returned a verdict in Narkiewicz

‐ Laine’s favor. It

found that the defendants had destroyed four pieces of art

‐

work protected under the Visual Artists Rights Act and

awarded $120,000 in damages. But the jury did not award him

damages on the remainder of the works for which he had

claimed damages under the Act—some 1,453 other pieces of

artwork. As for the common law claims, the jury decided in

Narkiewicz

‐ Laine’s favor and awarded $300,000, re fl ecting

the loss of all the artwork and other belongings stored at the

unit.

Following the trial, the district court reduced Narkiewicz

‐

Laine’s total damages award from $420,000 to $300,000 to

avoid what it saw as an improper double recovery. It4 No. 18

‐ 2535

determined that the jury’s award on the common law claims

needed to be reduced by the amount he recovered for the de

‐

struction of his works protected under the Visual Artists

Rights Act, as some of the damages were duplicative. Even

more speci fi cally, the court reasoned that the award for

Narkiewicz

‐ Laine’s common law claims—which compen

‐

sated him for the loss of all property and artwork that had

been destroyed—necessarily included the loss caused by the

destruction of the subset of his artwork protected under the

Visual Artists Rights Act.

Next, the district court concluded that Narkiewicz

‐ Laine

was not entitled to a tt orneys’ fees under the Copyright Act.

The court reasoned that, while he had won a damages award

covering some of the works, he also lost the majority of the

claims he brought under the Visual Artists Rights Act—his

claims covered 1,457 protected works, but he prevailed only

as to four of those works. In the court’s view, then, there was

no clear prevailing party and Narkiewicz

‐ Laine was not enti

‐

tled to a tt orneys’ fees.

II

On appeal Narkiewicz

‐ Laine seeks a new trial on his

claims under the Visual Artists Rights Act and a reversal of

the district court’s post

‐ trial rulings reducing his damages

award from $420,000 to $300,000 and denying his application

for a tt orneys’ fees.

A

We begin with Narkiewicz

‐ Laine’s argument that he is en

‐

titled to a new trial because the district court never should

have allowed the defense to impeach him with his 2003 con

‐

viction for making false statements to an FBI agent—aNo. 18

‐ 2535 5

conviction well over ten years old at the time of the trial.

Narkiewicz

‐ Laine likewise takes issue with the scope of cross

‐

examination that the district court allowed at trial regarding

the conviction. On that score, he asserts that the district court

improperly allowed the defendants to cross

‐ examine him

with the plea agreement from his 2003 conviction to elicit in

‐

formation about other charges of which he was never con

‐

victed. He further contends that the district court erred in al

‐ lowing the defendants to impeach his expert witness by ask

‐ ing a question that improperly characterized Narkiewicz

‐

Laine as an “art felon.”

Our review of the district court’s decision to admit Narkie

‐

wicz

‐ Laine’s prior conviction as well as its other evidentiary

rulings related to the use of the conviction at trial is limited.

We ask only whether those rulings re fl ected an abuse of dis

‐

cretion. See Barber v. City of Chicago

, 725 F.3d 702, 707 (7th Cir.

2013). Even then, we will not reverse if the error was harmless.

See Whitehead v. Bond

, 680 F.3d 919, 930 (7th Cir. 2012). Rather,

reversal is required if the evidentiary error “had ‘a substantial

and injurious e ff ect or in fl uence on the jury’s verdict.’” United

States v. Reddi tt

, 381 F.3d 597, 601 (7th Cir. 2004) (quoting

United States v. Woods

, 301 F.3d 556, 562 (7th Cir. 2002)). Evi

‐ dentiary errors meet this standard “only when a signi fi cant

chance exists that they a ff ected the outcome of the trial.”

Whitehead

, 680 F.3d at 930.

Federal Rule of Evidence 609 supplies the controlling ana

‐ lytical framework. Rule 609(a)(2) allows into evidence—for

purposes of impeachment—a witness’s prior conviction for a

crime involving dishonesty. But the Rule sets up di ff erent pre

‐ sumptions for convictions more than ten years old, like

Narkiewicz

‐ Laine’s here. Evidence of such a conviction is6 No. 18

‐ 2535

admissible only if “its probative value, supported by speci fi c

facts and circumstances, substantially outweighs its prejudi

‐

cial e ff ect.” Fed. R. Evid. 609(b)(1).

In this way, Rule 609 tilts the analysis in favor of excluding

evidence of convictions over ten years old. Such convictions,

we have emphasized, should be admi tt ed “only in rare and

exceptional circumstances.” United States v. Rogers

, 542 F.3d

197, 201 (7th Cir. 2008). But so too is it true that there exists no

absolute bar to admi tt ing a conviction over ten years old, and

we will uphold the district court’s decision doing so “as long

as the record shows that the district court thoughtfully ana

‐ lyzed the facts and properly weighed the probative value of

the evidence against its prejudicial e ff ect.” Reddi tt

, 381 F.3d at

601.

The district court’s decision to allow Narkiewicz

‐ Laine’s

2003 conviction respected these principles. The court rested

its ruling on a thoughtful analysis balancing the probative

value of the evidence of the conviction against the prejudicial

e ff ect of admi tt ing it. See United States v. Montgomery

, 390 F.3d

1013, 1015 (7th Cir. 2004) (articulating the factors to be consid

‐

ered in determining whether the probative value of a convic

‐

tion outweighs its prejudicial e ff ect). Recognizing the proba

‐

tive value of the conviction to Narkiewicz

‐ Laine’s credibility,

the district judge took care to consider the importance of his

testimony to his case and the low risk that the jury would im

‐ properly hold the conviction against him.

Recall that with the emptying of the rental unit went all

documentation of what existed in the space. Narkiewicz

‐

Laine a tt empted to recreate such an inventory after the fact,

and testi fi ed to his compilation at trial. His testimony, then,

served as the evidence establishing the existence of many ofNo. 18

‐ 2535 7

the items for which he claimed damages. As the district court

saw it, this made Narkiewicz

‐ Laine’s testimony and credibil

‐ ity pivotal to his case, weighing in favor of admi tt ing the 2003

conviction. Further, the district court saw the fact that the con

‐

viction implicated Narkiewicz

‐ Laine’s truthfulness—because

it involved making false statements—as adding to its im

‐ peachment value. The district court also noted that the 2003

conviction had li tt le similarity to Narkiewicz

‐ Laine’s current

claims, a reality that lowered the risk of the jury using the ev

‐

idence for something other than impeachment.

Narkiewicz

‐ Laine argues that the district court com

‐ pounded the error of admi tt ing his 2003 conviction by allow

‐ ing the defendants too much latitude in their use of the con

‐

viction on cross

‐ examination. To be sure, these observations

are not without weight. But, in the end, we need not deter

‐

mine whether these evidentiary rulings amounted to an abuse

of discretion, because even assuming that the district court

erred, any impact was harmless. Viewing the trial evidence as

a whole, we fail to see how the admission and use of the 2003

conviction at trial adversely skewed the jury’s verdict. This is

especially so because the court instructed the jury that it could

consider the evidence of Narkiewicz

‐ Laine’s 2003 conviction

only for the limited purpose of determining whether his tes

‐ timony was truthful. See Rogers

, 542 F.3d at 201 (explaining

that “where a limiting instruction is given

... the error usually

will be harmless”).

And more signi fi cantly, it is far from clear that the admis

‐

sion of the 2003 conviction—and related testimony elicited on

cross

‐ examination—had any e ff ect whatsoever on the jury’s

verdict. Remember that Narkiewicz

‐ Laine won part of the

trial: the jury awarded him damages for some of the claimed8 No. 18

‐ 2535

artwork and personal property. To do so, the jury had to have

credited at least some of Narkiewicz

‐ Laine’s testimony and,

in the process, rejected the defendants’ position that the de

‐ stroyed property was all scrap without any signi fi cant value.

Narkiewicz

‐ Laine presents no persuasive explanation as to

why the use of his conviction at trial might have in fl uenced

the jury’s decision regarding some of his claimed losses but

not others. It is equally telling that he seeks a new trial only

as to his claims under the Visual Artists Rights Act. In chart

‐ ing this course, Narkiewicz

‐ Laine seems to accept that the use

of his 2003 conviction did not a ff ect the jury’s consideration

of his common law claims, even though those claims also de

‐ pended heavily on his testimony and the jury’s assessment of

his credibility.

None of Narkiewicz

‐ Laine’s evidentiary challenges clears

the reversible error hurdle because we cannot conclude that

the admission and use of his prior conviction at trial had a

substantial or injurious e ff ect—or indeed, any discernible ef

‐

fect at all—on the jury’s verdict.

B

That brings us to Narkiewicz

‐ Laine’s argument that the

district court abused its discretion in reducing the jury award.

Here, too, we disagree.

The jury returned a verdict for Narkiewicz

‐ Laine on his

claims under the Visual Artists Rights Act and determined

two damage amounts: $120,000 in actual damages or, in the

alternative, $120,000 in statutory damages. The jury also

found in his favor on his common law claims of trespass, con

‐

version, and negligence and awarded him $300,000 for the

loss of all of his property discarded from the rental unit. ToNo. 18

‐ 2535 9

preclude what it saw as a double recovery, the district court

reduced the jury’s award for the common law claims

($300,000) by the actual loss he sustained for the works pro

‐

tected under the Visual Artists Rights Act ($120,000). Narkie

‐

wicz

‐ Laine was instead compensated for the loss of these

works by the jury’s award of statutory damages under the Act

($120,000). This left him with a total award of $300,000.

Narkiewicz

‐ Laine brought his common law claims under

Illinois law, so we begin there. Under Illinois law, “an injured

plainti ff may receive only one full compensation for his or her

injuries.” Illinois Sch. Dist. Agency v. Pac. Ins. Co.

, 571 F.3d 611,

615 (7th Cir. 2009) (quoting Thornton v. Garcini

, 382 Ill. App.

3d 813, 820 (2008)). To prevent a double recovery, a damage

award must be reduced “to o ff set any amounts that the plain

‐

ti ff already has collected from other sources in compensation

for the same injury.” Id. at 615–16.

To assess whether the jury’s award would have a ff orded

Narkiewicz

‐ Laine a double recovery, we must turn to § 504 of

the Copyright Act, the provision authorizing the recovery of

damages on his Visual Artists Rights Act claims. Under § 504,

a plainti ff may elect to recover either actual damages or stat

‐

utory damages but not both. See 17 U.S.C. § 504(c)(1). A plain

‐

ti ff electing statutory damages must make that choice “at any

time before fi nal judgment is rendered” and may recover a set

range—between $750 and $30,000—for each work. Id. Here,

Narkiewicz

‐ Laine elected to receive statutory damages. That

choice meant he could not recover actual damages for the

same works.

What complicates our discussion here is the jury’s identi

‐

cal calculation of actual and statutory damages under the Vis

‐

ual Artists Rights Act: $120,000 for each. That makes it10 No. 18

‐ 2535

tempting to view the awards as interchangeable. But statutory

damages and actual damages are distinct under the Copy

‐ right Act: statutory damages compensate for harms di ff erent

from actual loss. See Bucklew v. Hawkins, Ash, Baptie & Co.,

LLP.

, 329 F.3d 923, 931 (7th Cir. 2003) (explaining that § 504

“authorize[s] statutory damages unrelated to losses or

gains”). And in the context of the Visual Artists Rights Act

speci fi cally, decoupling statutory damages from actual losses

accords with the statute’s purpose to protect the “moral

rights” of artists—rights “unrelated to the artist’s pecuniary

interests” and instead “grounded in philosophical ideas

about the intrinsic nature and cultural value of art rather than

natural

‐ property or utility justi fi cations.” Kelley

, 635 F.3d at

296.

Relying on Congress’s desire to protect the moral rights of

artists, Narkiewicz

‐ Laine argues he is entitled to both the

$120,000 in statutory damages under the Act and the $300,000

in actual damages on his common law claims. To his mind,

this does not amount to a double recovery because the

$120,000 he was awarded in statutory damages addressed his

moral rights, while the $300,000 in actual damages compen

‐

sated him for his property rights.

Couched this way, Narkiewicz

‐ Laine’s position has sur

‐

face appeal. A closer look shows that the analysis misses the

mark, though. The biggest problem for Narkiewicz

‐ Laine is

that § 504 of the Copyright Act precludes him from recovering

for both actual and statutory damages for the same works,

and under his theory, that is exactly what he would be al

‐

lowed to do. The jury’s verdict and the related instructions

bear this out.No. 18

‐ 2535 11

The jury instructions made clear that both actual damages

under the Visual Artists Rights Act and damages for Narkie

‐

wicz

‐ Laine’s common law claims would compensate him for

the same type of loss. We have no doubt on this point because

the district court instructed the jury to assess actual damages

under the Act and damages on the common law claims with

the same measuring stick: the “fair market value” of the de

‐ stroyed property. The court further explained that the dam

‐

ages for the common law claims would compensate Narkie

‐

wicz

‐ Laine for the value of all his property. This necessarily

included any works the jury found to be protected under the

Visual Artists Rights Act.

The instructions did not direct the jury to exclude the loss

caused by the destruction of Narkiewicz

‐ Laine’s works pro

‐

tected under the Act from its calculation of damages on his

common law claims. This had a clear consequence: the

$300,000 awarded on the common law claims—for all prop

‐

erty lost—necessarily included the subset of works that were

speci fi cally covered under the jury’s verdict on the Visual Art

‐

ists Rights Act claims. And even though Narkiewicz

‐ Laine

elected to receive statutory damages, we cannot ignore the

jury’s express fi nding that the fair value of his loss on the four

works covered by the Visual Artists Rights Act amounted to

$120,000. Because Narkiewicz

‐ Laine is not entitled to recover

twice for the same property, the actual damages a tt ributed to

those four works must be subtracted out of the jury’s award

of actual damages for all destroyed property.12 No. 18

‐ 2535

Perhaps this conclusion is easier illustrated this way:

Jury award on common law

claims for all losses $300,000

Portion of that award cover

‐ ing the four works protected

by the Visual Artists Rights

Act ‐ $120,000

Net common law award $180,000

Jury award of statutory dam

‐

ages for the four Visual Artists

Rights Act works +$120,000

Adjusted total award $300,000

Skipping the subtraction step would allow Narkiewicz

‐

Laine to recover twice for his loss of the same artwork covered

by both the jury’s award on his common law claims and the

separate award on his claims under the Visual Artists Rights

Act. On this record, the district court did not abuse its discre

‐

tion in reducing the damages on the common law claims.

The trial record a ff ords a di ff erent, alternative path to the

same conclusion. During the jury instruction conference,

Narkiewicz

‐ Laine’s counsel assured the defendants and the

judge that his client was not seeking to recover under both the

common law and the Visual Artists Rights Act for the same

losses. In no uncertain terms, he explained that Narkiewicz

‐

Laine was not taking the position that “a VARA work could

recover both under VARA and under the common law.” The

court and the defendants accepted these assurances at face

value. Indeed, the defendants had originally proposed a ver

‐

dict form for the common law claims that would haveNo. 18

‐ 2535 13

instructed the jury to exclude any award for property that was

included in the damage award under the Visual Artists Rights

Act claims. After receiving these assurances, the defendants

agreed to withdraw their form, and the resulting jury verdict

form did not instruct the jury to exclude damages for the Vis

‐

ual Artists Rights Act artwork from its calculation of damages

on Narkiewicz

‐ Laine’s common law claims.

In a similar vein, during closing argument, Narkiewicz

‐

Laine’s counsel asked the jury to include works protected un

‐

der the Visual Artists Rights Act in its calculation of actual

damages for the common law claims. He went so far as to as

‐

sure the jury that, even though these works would be in

‐

cluded in the calculation of damages for the common law

claims, “nobody is trying to get paid twice.” Cementing the

point, counsel then explained that, if the jury awarded actual

damages for the Visual Artists Rights Act works and actual

damages for the common law claims, then the actual damages

for the Visual Artists Rights Act works would be subtracted

from the damage award for the common law claims, stating

“[t]he Judge will do this.”

On this record, Narkiewicz

‐ Laine cannot be allowed an

unjust about

‐ face on appeal: he is urging us to reverse for the

very reason he expressly disavowed at trial. See New Hamp

‐

shire v. Maine

, 532 U.S. 742, 749 (2001) (quoting Davis v. Wake

‐

lee

, 156 U.S. 680, 689 (1895)) (“[W]here a party assumes a cer

‐

tain position in a legal proceeding, and succeeds in maintain

‐ ing that position, he may not thereafter, simply because his

interests have changed, assume a contrary position, especially

if it be to the prejudice of the party who has acquiesced in the

position formerly taken by him.”). Recognizing that Narkie

‐

wicz

‐ Laine was a tt empting to assume a contrary position to14 No. 18

‐ 2535

the detriment of the defendants, the district court got it right

in reducing Narkiewicz

‐ Laine’s award from $420,000 to

$300,000.

C

We owe a fi nal word to the district court’s decision not to

award Narkiewicz

‐ Laine a tt orneys’ fees. The Copyright Act—

of which the Visual Artists Rights Act is part—provides that

“in its discretion,” a district court may award costs, including

a tt orneys’ fees to the “prevailing party.” 17 U.S.C. § 505. Un

‐

der this section, “[p]revailing plainti ff s and prevailing de

‐

fendants are to be treated alike, but a tt orney’s fees are to be

awarded to prevailing parties only as a ma tt er of the court’s

discretion.” Fogerty v. Fantasy, Inc.

, 510 U.S. 517, 534 (1994).

Narkiewicz

‐ Laine contends he is presumptively entitled

to a tt orneys’ fees as the prevailing party. See Riviera Distribu

‐

tors, Inc. v. Jones

, 517 F.3d 926, 928 (7th Cir. 2008) (explaining

that a prevailing party in copyright litigation is “presump

‐ tively entitled to reimbursement of its a tt orneys’ fees”). But

his argument misaligns with what happened here by assum

‐ ing that he prevailed across the board at trial. Not so.

True enough, the district court entered judgment in the

amount of $120,000 for Narkiewicz

‐ Laine on his Visual Artists

Rights Act claims. And Narkiewicz

‐ Laine is correct to observe

that a litigant is deemed to have prevailed when he obtains a

“material alteration of the legal relationship of the parties”—

in other words, a judgment in his favor. Id. (quoting Buckhan

‐

non Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Hu

‐

man Res.

, 532 U.S. 598, 604 (2001)). But it is also true that—

though embodied in only one count in his complaint—

Narkiewicz

‐ Laine asserted multiple claims under the VisualNo. 18

‐ 2535 15

Artists Rights Act covering 1,457 independent pieces of art

‐

work and seeking damages far beyond what he actually re

‐

covered. The jury found for Narkiewicz

‐ Laine on only four of

those claims. The fl ipside is that the jury necessarily found for

the defendants on the remaining claims under the Visual Art

‐

ists Rights Act—indeed, on the vast majority of those claims.

As the district court explained, that Narkiewicz

‐ Laine

“chose to plead all of his VARA claims in one count should

not dictate who is determined to be the prevailing party.”

And, unlike in the context of civil rights suits in which a plain

‐

ti ff need not prevail on every claim to be considered the pre

‐ vailing party, plainti ff s and defendants are on equal footing

for the purposes of fee awards under § 505. See Fogerty

, 510

U.S. at 524 (explaining that, in the civil rights context, Con

‐

gress sought to redress an imbalance between plainti ff s and

defendants “by treating successful plainti ff s more favorably

than successful defendants in terms of the award of a tt orney’s

fees,” but that no such objective existed for awarding fees un

‐

der the Copyright Act). Where, as here, the jury’s verdict

points in two directions as to who prevailed, the district court

was well within its discretion in declining to grant Narkie

‐

wicz

‐ Laine fees.

The same reasoning leads us to reject the defendants’ ar

‐

gument that they should be awarded their costs and fees of

defending this appeal. While it is true that when a party “wins

a suit and is entitled by statute to a reasonable a tt orneys’ fee,

the entitlement extends to the fee he reasonably incurs in de

‐ fending the award of that fee,” JCW Investments, Inc. v. Nov

‐ elty, Inc.

, 509 F.3d 339, 342 (7th Cir. 2007) (quoting Gorenstein

Enterprises, Inc. v. Quality Care

‐ USA, Inc.

, 874 F.2d 431, 438 (7th

Cir. 1989)), that is not the scenario before us. The district court16 No. 18

‐ 2535

did not declare either side a prevailing party; nor does the de

‐

fendants’ victory on appeal transform them into one. The de

‐

fendants are thus not entitled to an award of a tt orneys’ fees

for their costs in litigating this appeal.

Accordingly, we AFFIRM.