In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2535
CHRISTIAN K. NARKIEWICZ‐LAINE,
Plaintiff‐Appellant,
v.
KEVIN C. DOYLE, 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.
____________________
ARGUED APRIL 5, 2019 — DECIDED JULY 19, 2019
____________________
Before FLAUM, KANNE, and SCUDDER, Circuit Judges.
SCUDDER, 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 awarded
2 No. 18‐2535
him damages on multiple claims. Unsatisfied with his dam‐
ages award, Narkiewicz‐Laine now appeals, challenging a
number of the district court’s rulings made along the way. We
affirm.
I
The lease between Narkiewicz‐Laine and the defendants,
members of the Doyle family and affiliated 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 attribution 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
latter 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 testified 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 had
No. 18‐2535 3
been exhibited, and attempting 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, reflecting
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. It
4 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 specifically, 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 attorneys’ 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 attorneys’ 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 attorneys’ 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—a
No. 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 reflected 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 effect or influence on the jury’s verdict.’” United
States v. Redditt, 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 significant
chance exists that they affected 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 different pre‐
sumptions for convictions more than ten years old, like
Narkiewicz‐Laine’s here. Evidence of such a conviction is
6 No. 18‐2535
admissible only if “its probative value, supported by specific
facts and circumstances, substantially outweighs its prejudi‐
cial effect.” 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 admitted “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 admitting 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 effect.” Redditt, 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
effect of admitting 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 effect). 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 attempted to recreate such an inventory after the fact,
and testified to his compilation at trial. His testimony, then,
served as the evidence establishing the existence of many of
No. 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 admitting 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 little 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 admitting 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 significantly, it is far from clear that the admis‐
sion of the 2003 conviction—and related testimony elicited on
cross‐examination—had any effect whatsoever on the jury’s
verdict. Remember that Narkiewicz‐Laine won part of the
trial: the jury awarded him damages for some of the claimed
8 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 significant value.
Narkiewicz‐Laine presents no persuasive explanation as to
why the use of his conviction at trial might have influenced
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 affect 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 effect—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. To
No. 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
plaintiff 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 offset any amounts that the plain‐
tiff 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 afforded
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 plaintiff may elect to recover either actual damages or stat‐
utory damages but not both. See 17 U.S.C. § 504(c)(1). A plain‐
tiff electing statutory damages must make that choice “at any
time before final 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 it
10 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 different
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
specifically, 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 justifications.” 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
specifically 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 finding 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 attributed 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 $300,000
claims for all losses
Portion of that award cover‐ ‐$120,000
ing the four works protected
by the Visual Artists Rights
Act
Net common law award $180,000
Jury award of statutory dam‐ +$120,000
ages for the four Visual Artists
Rights Act works
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 affords a different, 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 have
No. 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 attempting to assume a contrary position to
14 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 final word to the district court’s decision not to
award Narkiewicz‐Laine attorneys’ 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
attorneys’ fees to the “prevailing party.” 17 U.S.C. § 505. Un‐
der this section, “[p]revailing plaintiffs and prevailing de‐
fendants are to be treated alike, but attorney’s fees are to be
awarded to prevailing parties only as a matter of the court’s
discretion.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).
Narkiewicz‐Laine contends he is presumptively entitled
to attorneys’ 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 attorneys’ 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 Visual
No. 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 flipside 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‐
tiff need not prevail on every claim to be considered the pre‐
vailing party, plaintiffs 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 plaintiffs and
defendants “by treating successful plaintiffs more favorably
than successful defendants in terms of the award of attorney’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 attorneys’ 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 court
16 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 attorneys’ fees
for their costs in litigating this appeal.
Accordingly, we AFFIRM.