dissenting:
The district court assessed Feltner $9,000,-000 in statutory damages — $10,000 for each of the 900 occasions on which MCA’s programming was improperly aired. Because I believe that the district court incorrectly assessed statutory damages for each infringement (including repeat showings) rather than for each work (i.e., individual episode) infringed, I would remand the case to the district court for a correct determination of damages.
The court’s opinion correctly observes that the text of section 504(c)(1) of the Copyright Act and the ease law interpreting that Act make clear that the statute allows only one award of statutory damages for each work infringed. Section 504(c)(1) provides:
the 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,....
17 U.S.C. § 504(c)(1) (emphasis added).1 See Mason v. Montgomery Data, Inc., 967 F.2d 135, 143-44 (5th Cir.1992) (“So if a plaintiff proves that one defendant committed five separate infringements of one copyrighted work, that plaintiff is entitled to only one award of statutory damages....”); Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C.Cir.1990) (“Both the text of the Copyright Act and its legislative history make clear that statutory damages are to be calculated according to the number of works infringed, not the number of infringements.”)
This court, however, finds this established legal standard inapposite because of state*772ments included in the pretrial stipulation. The majority observes that Feltner presented no evidence at trial that the 900 “showings” he stipulated to in the pretrial stipulation amounted to less than 900 “works” due to multiple telecasts of the same program. The majority contends that because Feltner failed to raise this issue until after the close of the evidence, he became estopped from raising the issue in the district court and from asserting error in that regard on appeal.2 The majority decision represents an erroneous interpretation of the pretrial stipulation, unjustly shifts the burden of establishing damages from the plaintiff to the defendant, and awards the plaintiff damages to which it is not entitled under the law.
First, the issue of damages was properly before the district court. One of the remaining issues of law specified by the pretrial stipulation was “what statutory damages shall be awarded in favor of MCA under § 504(e) of the Copyright Act.” As developed above, section 504(e) provides for one award of statutory damages per work infringed. The first question subsumed in this issue is thus what constitutes a “work” under the Copyright Act. Although this sub-issue was not specifically raised in the pretrial stipulation, the district court, and indeed this court on appeal, properly addressed it as a necessary aspect of the statutory damages claim. Having resolved this initial question by determining that each episode constituted a work, the inquiry shifted to how many works had been infringed. The district court, however, held that this second sub-issue had not been properly raised. To my mind, there exists no basis for determining that the pretrial stipulation raised the first sub-issue but not the second. Both are subsumed by the issue “what statutory damages shall be awarded in favor of MCA under § 504(c) of the Copyright Act.”
Second, the plaintiff, MCA, bears the burden of establishing its right to damages. Once the district court determined that each episode constituted a “work,” it was MCA’s obligation to establish the number of different episodes improperly aired. MCA did not carry this burden by the pretrial stipulation, and the district court plainly erred in finding otherwise. The pretrial stipulation stated only that there had been 900 unauthorized telecasts. Contrary to the opinion of the court, at no point did the pretrial stipulation state the number of “works” infringed, nor did it provide the number of different episodes involved.3 Although 900 may have been a convenient number, it was not the correct number of “works.” 4 It was MCA’s obligation to establish the number of works infringed. The district court should not have determined MCA’s failure to fully develop its damages claim in a manner favorable to MCA and detrimental to the defendant.
In my view, a court should hold a party to the language of the stipulation and nothing more. Feltner stipulated only to 900 telecasts of copyrighted material without MCA’s authority, not to 900 works. Furthermore, the issues of law raised in the pretrial stipu*773lation concerned the amount of statutory damages to be awarded. The $9,000,000 award is grossly unfair under these circumstances. I dissent and would remand for a proper assessment of statutory damages based on each work shown to be infringed.
. The legislative history of section 504 provides: A single infringer of a single work is liable for a single amount , no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series. H.R.Rep. No. 1476, 94th Cong., 2d Sess., at 162 (1976), reprinted, in 1976 U.S.C.C.A.N. 5659, 5778.
. Feltner argues on appeal that he was surprised by the sudden close of the trial and that the district court erred by denying him the opportunity to present evidence on the issue of damages. Although this claim is not the basis of my dissent, I believe the majority should have addressed this alleged irregularity in the proceedings before summarily stating that Feltner "failed to offer evidence” on the damages issue.
. In fact, what constituted a work was an issue before the district court and indeed before this court on appeal. MCA contended that each episode constituted a work, while Feltner maintained that each television series was a single work. Since the number of different episodes was irrelevant under Feltner's version of the case, he had no reason to develop those facts at trial. Once the district court determined that each episode constituted a work and announced that it would use the 900 infringements established by the pretrial stipulation as the basis of its award, Feltner argued that several of the showings were of the same episodes and thus constituted multiple infringements of a single work. See Tr. of Decision at 13-18. The district court held that the argument came too late and refused to accept evidence on the point.
.During the hearing at which the district court orally made its judgment, the district court allowed Feltner to put evidence into the record concerning the number of the 900 showings which were repeat broadcasts of the same episodes. Feltner’s statements indicated that at least 300 showings were repeats. See Tr. of Decision at 15-17. At $10,000 per infringement this amounts to over $3,000,000 in excess damages.