In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 17-2241 & 18-2534 

AMY LEE SULLIVAN, d/b/a DESIGN KIT, 

Plaintiff-Appellee, 

Cross-Appellant, 

v.

FLORA, INC., 

Defendant-Appellant, 

Cross-Appellee. 

____________________ 

Appeals from the United States District Court for the 

Western District of Wisconsin. 

No. 3:15-cv-298 — William M. Conley, Judge. 

____________________ 

ARGUED FEBRUARY 8, 2019 — DECIDED AUGUST 21, 2019 

____________________ 

Before FLAUM, BARRETT, and SCUDDER, Circuit Judges. 

SCUDDER, Circuit Judge. This appeal presents a question of 

first impression for us on the scope of statutory damages recoverable under the Copyright Act of 1976. Section 504(c)(1) 

of the Act permits a copyright holder “to recover, instead of 

actual damages and profits, an award of statutory damages 

for all infringements involved in the action, with respect to 
2 Nos. 17-2241 & 18-2534 

any one work,” with Congress separately instructing that, in 

determining statutory damages, “all the parts of a compilation or derivative work constitute one work.” This case requires us to determine what constitutes “one work” in a fact 

pattern where a jury found infringement on multiple works 

registered in a single copyright application. 

Amy Sullivan, a graphic design artist, produced a series of 

33 illustrations for Flora, Inc., an herbal supplement company, 

to use in two advertising campaigns. Upon noticing that Flora 

was using the illustrations in other ads, Sullivan brought suit 

for copyright infringement and opted to pursue statutory 

damages. She did so to maximize her potential payout by classifying each of her 33 illustrations as “one work” within the 

meaning of § 504(c)(1) of the Copyright Act. Flora disagreed, 

contending that the illustrations were part of two broader 

compilations and thus, if Sullivan prevailed, § 504(c)(1) limited her to just two statutory damage awards—one award for 

infringement on the illustrations used in each of the two advertising campaigns. The district court agreed with Sullivan, 

and instructed the jury that she could recover separate awards 

of statutory damages for 33 acts of infringement on 33 separate illustrations. The jury found infringement on each of the 

33 illustrations and returned a statutory damages award of 

$3.6 million. 

On appeal Flora challenges the district court’s ruling on 

statutory damages and separate rulings on two additional defenses to liability asserted at trial. While procedural shortcomings defeat these latter two challenges, Flora is right that the 

district court committed error in permitting separate awards 

of statutory damages unaccompanied by any finding that 

each or any of the 33 illustrations constituted “one work” 
Nos. 17-2241 & 18-2534 3 

within the meaning and protection of § 504(c)(1) of the Copyright Act. It is neither appropriate nor possible for us to make 

that finding on the record before us. So we vacate the judgment in Sullivan’s favor and remand for further proceedings. 

I 

Flora, Inc. manufactures herbal supplement and health 

products. In 2013, looking to produce advertisements for two 

new products, “7-Sources” and “Flor-Essence,” the company 

contacted freelance production specialist Joseph Silver to develop two animated videos. Unbeknownst to Flora, Silver 

then contacted Amy Sullivan, a Wisconsin-based graphic design artist, to develop illustrations that would then be animated for use in the advertisements. In Sullivan’s written 

agreement with Silver, she granted Flora exclusive rights to 

her illustrations in the two specified advertising campaigns. 

Over the following months, Silver and Sullivan corresponded to develop the illustrations. Silver made suggestions 

on color, style, and text, while also offering rough outlines 

and sketches to guide Sullivan’s work. For her part, Sullivan 

used digital design software to create the ultimate illustrations, sometimes incorporating Silver’s suggestions and other 

times not. Flora used Sullivan’s illustrations in its final advertisements for the two product lines. 

At some point in the summer or fall of 2013, Sullivan noticed that Flora was using her illustrations to promote other 

product lines. Exactly when the unauthorized use occurred is 

unclear. What the record shows for certain is that, on October 

16, 2013, Sullivan sent Flora a letter complaining of copyright 

infringement. At that time, however, Sullivan had not (yet) 

registered her illustrations with the Copyright Office. 
4 Nos. 17-2241 & 18-2534 

Sullivan subsequently did so in two copyright applications approved by the U.S. Copyright Office. Registration “VA 

1-888-930” had an effective date of November 6, 2013 and covered the “7 Sources Illustration Collection.” It listed 17 separate illustrations with names like “Frame7” and “7S-Bottle Illustration.” Registration “VA 1-893-717” had an effective date 

of December 12, 2013 and covered the “FEV Illustration Collection,” short for Flor-Essence. It listed 16 separate illustrations with names like “Frame-3,” “Herbs,” and “Amy Tex 

Bubble.” 

When settlement negotiations failed, Sullivan sued Flora 

for copyright infringement in the Western District of Wisconsin. The Copyright Act allows a plaintiff to choose to recover 

either statutory damages or actual damages. See 17 U.S.C. 

§ 504(a). The choice must come before the entry of final judgment. See id. § 504(c)(1). As the litigation progressed, Sullivan 

chose to pursue statutory damages, with the parties then staking out opposing positions on the scope of a permissible 

award under § 504(c)(1). These competing positions frame the 

primary issue before us on appeal. 

Flora contended that Sullivan’s 33 illustrations fell into 

one of two compilations (corresponding with the company’s 

two advertising campaigns in which the illustrations appeared and also aligning with the two copyright registrations) 

and thus § 504(c)(1) precluded Sullivan from receiving more 

than two separate awards of statutory damages—one for each 

compilation infringed. Sullivan begged to differ. She urged 

the district court to treat each of the 33 illustrations as 33 separate works entitled to 33 separate awards of statutory damages upon a showing that Flora infringed each work. 
Nos. 17-2241 & 18-2534 5 

Who was right very much mattered, for Congress authorized an award of between $750 and $30,000 in statutory damages for each work infringed, and up to $150,000 per work if 

a jury found willful infringement. See id. § 504(c)(2). Put most 

simply, Sullivan wanted the copyrighted work multiplier to 

be 33 and not two. 

The district court addressed the issue pretrial. It did so by 

focusing on Sullivan’s copyright applications. The certificates 

from the U.S. Copyright Office showed that Sullivan had registered each of the 33 illustrations in two applications, with 

the illustrations grouped to correspond with Flora’s two advertised product lines. The Copyright Act and its implementing regulations allow the registration of multiple works this 

way. See id. § 408(c)(1) (authorizing the extension of copyright 

protection from a single registration to multiple works listed 

in the registration application); 37 C.F.R. § 202.3(b)(4) (same). 

Relying on these provisions and drawing upon the statute’s 

definition of “collective works,” the district court determined 

that “[Sullivan’s] copyrighted works are collective works, in 

which contributions, constituting separate and individual 

works in themselves, are assembled into a collective whole.” 

See 17 U.S.C. § 101 (defining “collective works” this way). 

From there the district court concluded that “the [33] individual illustrations are individual works, entitling Sullivan to 

separate statutory damages awards.” The case advanced to 

trial against the backdrop of this ruling. 

Trial proceeded in three phases. In phase one, the court 

tasked the jury with determining whether Sullivan was the 

sole author of the copyrighted works, or instead whether Silver was a joint author capable of granting his own rights to 

Flora. In phase two, the jury considered whether Flora copied 
6 Nos. 17-2241 & 18-2534 

and used Sullivan’s illustrations without authorization. In 

phase three, the jury determined what statutory damages resulted from the infringement. 

The jury ruled in Sullivan’s favor at each phase. In phases 

one and two, the jury determined that Flora had copied and 

used Sullivan’s illustrations willfully and without authorization and furthermore that the works were not joint works but 

instead belonged to Sullivan alone. At phase three, the jury 

awarded $3,600,000 in statutory damages, finding that Flora 

willfully infringed on each of Sullivan’s 33 individual illustrations. The jury also found $143,500 in actual damages, which 

Sullivan declined in favor of the larger statutory award. 

II 

Flora’s main contention on appeal is that the district court 

committed legal error in determining that Sullivan could collect statutory damages for infringement on each of the 33 illustrations as separate works. Sullivan urges us to avoid the 

issue on the basis that Flora waived any challenge to the damages award by not expressly objecting to the district court’s 

jury instruction. We cannot agree. While Flora could have objected, the fairest reading of the record is that the company—

throughout the litigation—had made its position on statutory 

damages abundantly clear, including by briefing the issue 

during the pretrial proceeding that resulted in the district 

court’s determinative ruling. The law required no more in this 

circumstance. See Dresser Industries, Inc., Waukesha Engine Div. 

v. Gradall Co., 965 F.2d 1442, 1450 (7th Cir. 1992) (explaining 

that the failure to object to a jury instruction embodying a legal determination “may be disregarded if the party’s position 

had previously been clearly made to the court and it is plain 
Nos. 17-2241 & 18-2534 7 

that a further objection would be unavailing”). So we proceed 

to the merits. 

A 

The scope of statutory damages available to Sullivan turns 

on § 504(c)(1) of the Copyright Act: 

[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award 

of statutory damages for all infringements involved in the action, with respect to any one work, 

for which any one infringer is liable individually, or for which any two or more infringers are 

liable jointly and severally, in a sum of not less 

than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all 

the parts of a compilation or derivative work constitute one work.

17 U.S.C. § 504(c)(1) (emphasis added). 

By its terms, § 504(c)(1) limits a plaintiff’s recovery to one 

award of statutory damages for each work infringed. Put another way, Congress focused the inquiry on the number of 

protected works infringed, not the number of infringements. 

See Twin Peaks Prods., Inc. v. Publications Int’l Ltd., 996 F.2d 

1366, 1381 (2d Cir. 1993). In doing so, Congress imposed the 

additional limitation that, in awarding statutory damages, 

each part of a compilation shall be considered “one work.” 

17 U.S.C. § 504(c)(1). In construing § 504(c)(1), it is therefore 

essential to determine not only what constitutes “one 

work”—a term Congress left undefined in the Copyright 
8 Nos. 17-2241 & 18-2534 

Act—but also when multiple works combine to form a “compilation,” a term Congress did define in the statute. 

In copyright law, a “work”—as its name implies—reflects 

an original expression, whether in the form of art, literature, 

music, or another tangible medium of expression, that may be 

entitled to protection. See 17 U.S.C. § 102(a). An artist seeking 

copyright protection for multiple works can do so in a single 

registration application. See 17 U.S.C. § 408(c)(1) (allowing for 

a single registration for a group of related works); 37 C.F.R. 

§ 202.3(b)(4) (same); see also 2 Melville B. Nimmer & David 

Nimmer, Nimmer on Copyright § 7.18(c) (Rev. Ed. 2019) (discussing the Copyright Act’s flexible approach in allowing a 

single registration for multiple works). The Copyright Office’s 

granting such a single application results in each registered 

work receiving copyright protection. See Wildlife Express Corp. 

v. Carol Wright Sales, Inc., 18 F.3d 502, 507, 508 (7th Cir. 1994) 

(explaining that “[a] certificate of registration from the U.S. 

Register of Copyrights constitutes prima facie evidence of the 

validity of a copyright” and “[a]n owner of a copyright is protected against unauthorized copying”). Sullivan charted this 

exact course here, applying to protect what she called “illustration collections” and receiving two certificates of registration from the Copyright Office. These certificates resulted in 

Sullivan’s 33 illustrations being registered and therefore having copyright protection. 

The district court began and ended its analysis of the statutory damages question with this same observation. It put its 

ruling on the scope of statutory damages this way: 

Based on the undisputed fact that plaintiff registered her two illustration collections as a collective or group work under 17 U.S.C. 
Nos. 17-2241 & 18-2534 9 

§ 408(c)(1) and 37 C.F.R. § 202.3(b)(4)(i), and that 

that identification appears appropriate—or, at 

least, defendant [Flora] has failed to explain 

why the copyrighted works do not appropriately fall within that designation—the court 

conclude[s] that the copyrighted works are collective works, in which contributions, constituting separate and individual works in themselves, are 

assembled into a collective whole. 

(Dkt. 240 at 1) (emphasis in the original). The court reinforced 

its ruling when instructing the jury on the scope of statutory 

damages it could award Sullivan upon findings of infringement by Flora, explaining that “for purposes of considering a 

statutory damages award, you may consider each illustration 

in the 7 Sources illustration collection and the Flor-Essence illustration collection as an independent, copyrighted work.” 

The district court drifted off course in seeing the 33 illustrations as “collective works” without first asking, as 

§ 504(c)(1) requires, whether each illustration constituted 

“one work” or instead combined to form a “compilation.” The 

misstep becomes apparent upon recognizing that Congress, 

in defining “compilation” in § 101 of the Copyright Act, made 

clear that the term “includes collective works.” So the consequence of the district court characterizing the 33 illustrations 

as “collective works” was that the illustrations then also constituted a “compilation” and thus, by operation of § 504(c)(1), 

“all the parts of a compilation”—each of Sullivan’s 33 illustrations—“constitute one work.” But that conclusion is at odds 

with the district court also determining that the Copyright Act 

authorized the jury to return 33 separate awards of statutory 

damages for infringement on each of the 33 illustrations. 
10 Nos. 17-2241 & 18-2534 

The knot untangles by returning to the language of 

§ 504(c)(1). The key distinction in § 504(c)(1) is not between a 

compilation and a collective work—indeed, § 101’s definition 

makes plain that the former includes the latter—but instead 

between “one work” and a “compilation.” Or, stated another 

way, the proper inquiry under § 504(c)(1) asks whether Sullivan’s 33 illustrations constitute 33 individual works or instead are parts of two compilations (corresponding with the 

two advertising campaigns in which Flora used the illustrations). The district court stopped short of asking this question 

(or putting it to the jury) by giving controlling weight to the 

fact that Sullivan registered her illustrations as a group and 

therefore protected each of the 33 illustrations. That observation, while reflecting an accurate understanding of the registration process, does not resolve the scope of statutory damages available to Sullivan. That answer, we conclude, must 

come by parsing § 504(c)(1) and distinguishing between a 

work and a compilation. 

Identifying the right question is easier than knowing the 

right answer, though. And this is where we benefit from not 

being the first court to consider the scope of statutory damages available under § 504(c)(1)—and, more specifically, the 

meaning of “one work.” 

B 

Other circuits seem to follow one of two approaches in answering the question presented, though the dividing lines are 

far from absolute. Start with the Second Circuit and its decision in Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 

2010). The case entailed allegations of infringement on two 

copyrighted music albums, each with ten songs, and the parties disputing whether statutory damages should be 
Nos. 17-2241 & 18-2534 11 

measured on a per-album or per-song basis. The court observed that each song had separate copyright protection and, 

in addition to being sold as part of an album, could be purchased individually through retailers like iTunes. See id. at 

138. Even when bought individually, however, the songs remained part of and indeed were produced and marketed as 

an album. That fact resolved the statutory damages question 

because, as the court saw it, “[a]n album falls within the Act’s 

expansive definition of compilation.” Id. at 140. “Based on a 

plain reading of the statute,” the reasoning followed, “infringement of an album should result in only one statutory 

damage award.” Id. at 141. More to it, the court emphasized, 

the “[Copyright] Act [in § 504(c)(1)] specifically states that all 

parts of a compilation must be treated as one work for purposes of calculating statutory damages.” Id. at 142. And, 

drawing reinforcement from the Copyright Act’s definition of 

compilation, the Second Circuit added that “[t]he fact that 

each song may have received a separate copyright is irrelevant to this analysis.” Id. at 141. 

In so holding, the Second Circuit distinguished its prior 

decision in Twin Peaks Productions v. Publications International, 

where the court held that eight distinct statutory damages 

awards were available for infringement on the copyrighted 

scripts of eight television episodes that the defendant later 

combined into a single book. 996 F.2d 1366, 1381 (2d Cir. 

1993). Separate awards of statutory damages were appropriate in Twin Peaks, the Bryant court subsequently explained, because “the plaintiff had issued the works separately, as independent television episodes,” and it was “the defendant [who] 

printed eight teleplays from the series in one book.” 603 F.3d 

at 141. Even though each episode of Twin Peaks contributed 

to the drama’s broader plot, which unfolded over the course 
12 Nos. 17-2241 & 18-2534 

of a season, the fact remained that the episodes aired at separate times and, in this way, stood on their own enough to 

avoid being grouped with the other episodes and thus considered a compilation within the meaning of the Copyright 

Act. The upshot, then, was that the plaintiff in Twin Peaks was 

entitled to eight separate statutory damage awards for each 

infringed episode. See Twin Peaks, 996 F.2d at 1381; see also 

WB Music Corp. v. RTC Communication Grp., Inc., 445 F.3d 538, 

540–41 (2d Cir. 2006) (following the same approach and reversing the district court’s limitation of a plaintiff’s statutory 

damages on a per-album basis). 

The Second Circuit’s approach—embodied, as we see it, in 

its most recent decision in Bryant—gives controlling weight to 

the last sentence of § 504(c)(1), where Congress directed that, 

for purposes of assessing statutory damages, “all the parts of 

a compilation or derivative work constitute one work.” The 

approach has a limiting effect. Take, for instance, the songwriter who produces an album, registers the album under the 

group registration process made available by 17 U.S.C. 

§ 408(c)(1), only then to learn someone infringed multiple 

tracks. The artist would be entitled to one and only one award 

of statutory damages because “it is the copyright holders who 

issued their works as ‘compilations’; they chose to issue Albums,” instead of producing each song as independent singles. Bryant, 603 F.3d at 141. The Second Circuit’s approach, 

in short, places dispositive weight on the songwriter’s bundling of songs—protected though they may be at the individual level—into an album. It is the production and publication 

of each song as part of an album that limits the songwriter’s 

recovery to one award of statutory damages no matter the infringement that may have occurred at the level of any individual song. 
Nos. 17-2241 & 18-2534 13 

Recognizing this limitation, most other circuits have interpreted § 504(c)(1) a different way. A good illustration comes 

from the First Circuit’s decision in Gamma Audio & Video, Inc. 

v. Ean-Chea, 11 F.3d 1106, 1118 (1st Cir. 1993). The court there 

considered how to award statutory damages for infringement 

on four episodes of the television series Jade Fox, where the 

episodes had been registered together on one copyright certificate and later rented or sold in sets containing multiple episodes. Construing § 504(c)(1), the court adopted what it 

called an “independent economic value test” to determine if 

each episode of Jade Fox had copyright value unto itself and 

was therefore an independent work—in statutory terms, “one 

work”—for purposes of awarding statutory damages. Id. at 

1116–17. 

The First Circuit explained that such a substantive economic inquiry better reflected the value of each episode and 

gave effect to not only the language Congress used in 

§ 504(c)(1), but also the absence on a broader level of anything 

in “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 

on each work’s copyright.” Id. at 1117. Applying the test, the 

First Circuit determined that the evidence before it supported 

a finding that each episode of Jade Fox, although plainly part 

of a television series, constituted an independent work entitled to its own award of statutory damages. See id. at 1117–18. 

The Ninth, Eleventh, and D.C. Circuits follow the First Circuit’s approach. See, e.g., VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 

723, 747 (9th Cir. 2019) (adhering to its discussion in Columbia 

Pictures Television, Inc. v. Krypton Bd. of Birmingham, Inc., 
14 Nos. 17-2241 & 18-2534 

259 F.3d 1186 (9th Cir. 2001) and explaining that “the question 

of whether something—like a photo, television episode, or so 

forth—has ‘independent economic value’ informs our analysis of whether the photo or episode is a work” within the 

meaning of § 504(c)(1)); MCA Television Ltd. v. Feltner, 89 F.3d 

766, 769 (11th Cir. 1996) (employing the same test to determine “whether each expression has an independent economic 

value and is, in itself, viable”); Walt Disney Co. v. Powell, 

897 F.2d 565, 570 (D.C. Cir. 1990) (asking whether certain copyrighted materials are “distinct, viable works with separate 

economic value and copyright lives” to determine the scope 

of available statutory damages under § 504(c)(1)). 

The Fourth Circuit is the only other circuit to have considered the question presented. Its answer came with mixed signals, following the Second Circuit’s approach in Bryant but 

suggesting different facts may fit with a different construction 

of § 504(c)(1). See Xoom, Inc. v. Imageline, Inc., 323 F.3d 279, 285 

(4th Cir. 2003), abrogated on other grounds by Reed Elsevier, 

Inc. v. Muchnick, 559 U.S. 154 (2010). In Xoom, the court determined that two collections of numerous digital images, protected under two copyright registrations, were compilations 

and thus only subject to two statutory damages awards under 

§ 504(c)(1). See id. at 285 n.8 (explaining that “Imageline is entitled to one award of statutory damages per work infringed 

because SuperBundle and Master Gallery are compilations or 

derivative works in which Imageline holds copyrights”). At another point in its opinion, however, the Fourth Circuit appeared to agree that “the Copyright Act does not bar multiple 

awards for statutory damages when one registration includes 

multiple works.” Id. at 285. This qualification is substantial 

and seems to suggest the Fourth Circuit may chart a different 
Nos. 17-2241 & 18-2534 15 

course—perhaps the one followed by most other circuits—on 

different facts. 

C 

Section 504(c)(1) is hardly a model of clarity, especially 

when considering, as we are here, infringement of multiple 

protected works and a plaintiff seeking multiple, separate 

awards of statutory damages. It is not at all surprising that 

two approaches find recognition in the caselaw of other circuits. In the end, we conclude, in closer keeping with the approach of the First, Ninth, Eleventh, and D.C. Circuits, that 

§ 504(c)(1) requires courts confronted with circumstances 

with multiple works and multiple infringements to determine, or to charge a jury with fact finding tailored to answering, whether the protected works have value only in and 

through their composite whole (and thus meet the definition 

of a “compilation” in § 101) or instead have standalone value 

at the level of “one work.” A protected work has standalone 

value if the evidence shows that work has distinct and discernable value to the copyright holder. See Gamma Audio, 

11 F.3d at 1116 (explaining that “separate copyrights are not 

distinct ‘works’ unless they can live their own copyright 

life”—a viability determination that turns on whether the 

work in question has independent economic value); see also 

Feltner, 89 F.3d at 769; Walt Disney Co., 897 F.2d at 569. 

The question at the heart of the Second Circuit’s more limited approach in Bryant—which focuses on whether the copyright holder marketed and distributed the multiple protected works as individual works or as a compendium of 

works (like, for example, an album)—is certainly relevant to 

the inquiry we believe Congress has required in § 504(c)(1). 

But we also believe the inquiry needs to extend further to 
16 Nos. 17-2241 & 18-2534 

discern and give more fulsome effect to the distinction Congress drew in the text of § 504(c)(1) between “one work” and 

a “compilation.” See Yellow Pages Photos, Inc. v. Ziplocal, LP, 

795 F.3d 1255, 1281 (11th Cir. 2015) (employing a similar approach to discerning whether multiple photos constituted a 

compilation or individual works). To stop at the Second Circuit’s inquiry does not allow a possibility Congress made 

available in § 504(c)(1)—a situation where a copyright holder 

encounters infringement on multiple works available in the 

market as a group but where discernable value lies at the level 

of a particular individual work—for example, at the level of a 

particular photo or song which, although released as part of 

an album, is likewise marketed and available at the individual 

level. Sellers regularly allow buyers to acquire a part of a 

whole and the market assigns value accordingly. 

The inquiry and fact finding demanded by § 504(c)(1) is 

more functional than formal, taking account of the economic 

value, if any, of a protected work more than the fact that the 

protection came about by an artist registering multiple works 

in a single application. The necessary finding requires a focus 

on where the market assigns value. By way of an analogy, imperfect though it may be, think in the first instance of the multiple protected works as a quilt and then ask whether any one 

individual patch has discernable, independent economic 

value—whether once separated from the quilt a particular 

patch lives its own copyright life (as “one work”)—or instead 

whether the value lies in the patches’ combined assembly into 

the quilt as a whole (as a “compilation”). 

Our analysis must end here, though, as the record as it 

presently stands does not allow us to resolve as a factual matter whether all or part of Sullivan’s 33 illustrations are 
Nos. 17-2241 & 18-2534 17 

separate works with distinct and discernable value or part of 

two broader compilations. The district court did not ask (or 

put to the jury) the questions we see as necessary for resolving 

the statutory damages question. See VHT, Inc., 918 F.3d at 748 

(remanding on similar reasoning for additional fact finding). 

This error requires us to vacate the judgment in Sullivan’s 

favor. Our doing so in no way calls the jury’s findings of infringement into question. On remand the district court will 

have ample flexibility to structure the proceedings to enable 

the requisite findings pertinent to statutory damages. 

III 

Invoking an altogether different provision of the Copyright Act, Flora advances a separate and independent challenge to the jury’s statutory damages award based on the timing of the company’s infringement on Sullivan’s copyrighted 

works. The district court determined that Flora waived this 

challenge by raising it much too late at trial. We agree. 

Section 412 of the Copyright Act prohibits an award of 

statutory damages for “any infringement of a copyright in an 

unpublished work commenced before the effective dates of 

registration.” 17 U.S.C. § 412(1). By its terms, § 412 imposes a 

bar to recovering statutory damages if a defendant can show 

that any infringement began before the registration of the 

works in question. 

Neither the district court nor jury ever considered the timing bar imposed by § 412. The reason is because Flora raised 

the § 412 limitation for the first time during the third and final 

phase of trial—the damages phase—and even then, only at a 

side bar on an unrelated issue. Flora’s doing so surprised the 

district judge, as the position marked a substantial shift in the 
18 Nos. 17-2241 & 18-2534 

company’s trial strategy. All along Flora had sought to avoid 

liability based on the defense of joint authorship—by arguing 

that Silver and Sullivan jointly created each of the 33 illustrations—and thus that the company (through Silver’s joint ownership) could not possibly be liable for infringement. By invoking § 412 and advancing a timing defense, Flora changed 

course, recognizing (undoubtedly in response to the jury’s 

verdict in phase two) that it had infringed on Sullivan’s works 

but arguing that the infringement began before she had registered the illustrations. In Flora’s view, the timing of the infringement—before Sullivan’s registration—triggered the application of § 412 to bar any award of statutory damages. 

The district judge reacted to Flora’s raising this § 412 argument when it did with meaningful frustration. The court 

rightly underscored that Flora made no mention of any § 412 

defense in its answer, motion to dismiss, or request for summary judgment. Nor, the district court added, did Flora ever 

say a word about any possible § 412 bar at the jury charge 

conference—at a time when the court and parties could have 

considered how to put the infringement-timing question to 

the jury. Indeed, when asked directly whether either party 

had concerns with the jury instruction on statutory damages, 

counsel for Flora responded, “None, Your Honor.” 

As the district court saw it, then, Flora waited to pursue 

and raise its newfound § 412 defense until the close of evidence and thus well after either party could have structured 

its presentation of evidence—as to liability and defenses 

alike—to address the timing predicate on which application 

of the damages bar hinges. Or, as the district judge put the 

point, “by sitting on its challenge until the end of the evidence, defendant left plaintiff and the court to believe that it 
Nos. 17-2241 & 18-2534 19 

had conceded this requirement for an award of statutory 

damages.” Accordingly, the district court concluded that 

Flora had waived any § 412 timing defense. 

We see no error in the district court’s conclusion, in no 

small part because § 412 operates akin to an affirmative 

defense that Flora should have raised far earlier in the 

proceedings. Waiting this long resulted in waiver. See Carr v. 

O’Leary, 167 F.3d 1124, 1126 (7th Cir. 1999) (explaining that a 

party’s unreasonable delay in advancing an argument “is 

normally a compelling ground for deeming even a good 

ground waived”). Our cases are clear that waiver, not 

forfeiture, occurs when a defendant waits until the eleventh 

hour or beyond to raise an affirmative defense and in doing 

so prejudices the opposing party. See Reed v. Columbia St. 

Mary’s Hosp., 915 F.3d 473, 482 (7th Cir. 2019). “Allowing a 

last-minute defense that introduces new factual and legal 

issues after discovery has closed,” we have emphasized, 

“raises the costs of litigation and allows the party that was at 

least negligent in failing to plead its defense to take unfair 

advantage of its opposing party.” Id. 

It is hard to see what happened here any other way than 

the district judge put it: for whatever reason, strategic or inadvertent, Flora waited to raise its timing-of-infringement defense until the jury had already found infringement, leaving 

the trial record altogether missing evidence on precisely when 

the infringement began—the lynchpin inquiry under § 412. 

Without any notice that this change of course was coming, 

Sullivan had no reason to believe her infringement claim may 

rise or fall on evidence pinpointing the timing of Flora’s infringement on each of the 33 illustrations. 
20 Nos. 17-2241 & 18-2534 

In these circumstances, we cannot say the district court 

was wrong to conclude that “Flora, at minimum, needed to put 

the timing requirement of § 412 in issue by timely challenging 

it” and its failure to do so constituted waiver. 

IV 

Flora’s final effort on appeal to avoid liability comes in its 

contention that the district court erred in not setting aside the 

jury’s verdict on the basis that the trial evidence showed beyond dispute that Silver and Sullivan were joint authors of the 

33 illustrations. Here too, though, Flora runs into waiver, as 

the company failed to present this challenge to the district 

court in response to the jury’s adverse verdict. The pathway 

to that conclusion is straightforward. 

Joint authorship is a defense to copyright infringement. 

See Janky v. Lake County Convention and Visitors Bureau, 

576 F.3d 356, 361 (7th Cir. 2009). The defense, as its name implies, turns on whether two or more authors jointly created 

the work in question. If so, they hold undivided interests in 

the work and the underlying rights are shared and not exclusive to one or the other authors. See 17 U.S.C. § 201(a); Janky, 

576 F.3d at 361 (“The benefits of co-authorship are therefore 

significant: each author may use or license the joint work.”). 

Throughout the pretrial proceedings, Flora sought to 

show that Joseph Silver’s contributions to Sullivan’s illustrations resulted in joint authorship, which in turn would have 

allowed Silver to authorize Flora’s use of the illustrations, 

eliminating the basis for infringement. A copyright owner 

cannot infringe its own work. Flora continued to advance the 

joint authorship defense at trial, moving, for example, on day 

two for judgment as a matter of law on the issue. See Fed. R. 
Nos. 17-2241 & 18-2534 21 

Civ. P. 50(a). The district court denied the motion, and the 

case went to the jury. In finding infringement, the jury expressly found (and so answered on the verdict form) that 

Flora had not carried its burden of showing that the illustrations were the result of a joint effort by Silver and Sullivan. 

But Flora never renewed its challenge at any point after 

the jury returned its verdict in Sullivan’s favor. And therein 

lies the problem. Flora insists on appeal that the district court 

erred in not keeping the joint authorship question from the 

jury and failing to grant its Rule 50(a) motion on the issue. Yet 

this contention runs headlong into the well-settled precept 

that “a court of appeals may not award judgment due to insufficiency of the evidence where no Rule 50(b) motion was 

filed after the verdict.” Fuesting v. Zimmer, Inc., 448 F.3d 936, 

938 (7th Cir. 2006); see also Lexington Ins. Co. v. Horace Mann 

Ins. Co., 861 F.3d 661, 669 (7th Cir. 2017) (making clear that for 

a party to seek judgment on appeal, “the requesting party 

must not only have filed a motion under Rule 50(a), but must 

also have renewed that motion under Rule 50(b)”). 

The demands of Rule 50(b) serve a sound purpose. As the 

Supreme Court has emphasized, the “determination of 

whether a new trial should be granted or a judgment entered 

under Rule 50(b) calls for the judgment in the first instance of 

the judge who saw and heard the witnesses and has the feel 

of the case which no appellate printed transcript can impart.” 

Unitherm v. Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 

401 (2006). This explains why our caselaw is unyielding in 

requiring a party who believes a jury’s verdict lacks a 

sufficient evidentiary basis to raise that challenge in the 

district court. It is not enough to rest on having made a preverdict sufficiency-of-evidence challenge under Rule 50(a). 
22 Nos. 17-2241 & 18-2534 

To excuse its failure to move under Rule 50(b) following 

the jury’s adverse verdict, Flora argues that we have discretion on appeal to consider pure questions of law. But the question of joint authorship is not a pure question of law: answering whether two or more individuals or entities contributed 

enough to a work to result in joint authorship requires consideration of facts. And this is precisely why other courts have 

recognized, properly in our view, that the question is one for 

a jury to consider guided by an instruction from the district 

court. See Medforms, Inc. v. Healthcare Mgmt. Solutions, 290 

F.3d 98, 110 (2d Cir. 2002) (explaining that in a copyright case, 

“[a]uthorship is generally a question of fact for the jury”). 

Having failed to lodge a post-verdict challenge under Rule 

50(b), Flora waived the very issue it now wants us to review. 

We cannot do so. 

Even if Flora had not waived its joint authorship challenge, we would be quick to conclude that the jury reasonably 

found Sullivan was the sole author of the 33 illustrations in 

question. The jury received evidence of the contributions of 

both Silver and Sullivan and viewed both of the copyright registrations submitted solely in Sullivan’s name. The district 

court also properly instructed the jury that “[a] ‘joint work’ is 

a work that two or more persons prepared with the intention 

that their contributions be merged into inseparable elements 

of a single work.” This instruction mirrored the Copyright 

Act’s definition of a “joint work.” See 17 U.S.C. § 101. It also 

aligns precisely with what we have described as the attributes 

of a joint work. See Janky, 576 F.3d at 362 (explaining that a 

joint work requires “(1) intent to create a joint work; and (2) 

contribution of independently copyrightable material”). 
Nos. 17-2241 & 18-2534 23 

Asked whether a preponderance of the evidence demonstrated that the copyrighted illustrations were joint works, the 

jury answered in the negative, finding that Sullivan was the 

sole author. We cannot say this was an unreasonable result in 

light of the evidence presented. See Collins v. Kibort, 143 F.3d 

331, 335 (7th Cir. 1998) (explaining that we will “overturn a 

jury verdict for the plaintiff only if we conclude that no rational jury could have found for the plaintiff”). 

V 

We conclude with a brief word in response to Sullivan’s 

cross appeal challenging the district court’s refusal to award 

attorneys’ fees. Our review is limited to whether the district 

court’s ruling reflected an abuse of discretion. See Gastineau v. 

Wright, 592 F.3d 747, 748 (7th Cir. 2010). 

The Copyright Act affords a district court discretion in 

awarding attorneys’ fees to the prevailing party in an infringement case. See 17 U.S.C. § 505 (explaining that “the court in its 

discretion may allow the recovery of full costs by or against any 

party” in an infringement case) (emphasis added). The Supreme Court offered further guidance in Fogerty v. Fantasy, 

Inc., outlining a series of factors for courts to consider when 

awarding fees. 510 U.S. 517, 534 n.19 (1994) (setting out a series of nonexclusive factors, including frivolousness, motivation, objective unreasonableness of factual or legal positions, 

and considerations of compensation and deterrence). 

In denying Sullivan’s fee application, the district court reasoned well within the discretion afforded by Congress. Considering the factors outlined in Fogerty, the court saw the case 

as close on the merits and hard fought by the parties. From 

there the district court underscored that Sullivan had won a 
24 Nos. 17-2241 & 18-2534 

substantial verdict that would be costly for Flora to satisfy 

and that, when balancing the totality of what occurred in the 

litigation, an additional award of fees was neither required 

nor appropriate, especially in light of the reasonableness of 

the joint authorship defense Flora pressed at trial. Or, in the 

district court’s own words, “no further compensation or deterrence in the form of an attorneys’ fee award [was] necessary.” We cannot call the district court’s reasoning an abuse 

of discretion and therefore affirm its denial of Sullivan’s fee 

application. 

* * * 

For these reasons, we AFFIRM in part and otherwise 

VACATE the judgment in Sullivan’s favor and REMAND to 

the district court for further proceedings consistent with this 

opinion.