Wе have before us again appeals from the controversy surrounding the distribution of 300,000 copies of Mary Ellen’s Best of Helpful Hints by L’eggs Brands, Inc. In the first appeal, we affirmed the entry of summary judgment in favor of Mary Ellen Pinkham on her copyright infringement claim against Camex, Inc., and its officers, Jay Columbus and Victor Benedetto. Pinkham v. Sara Lee Corp.,
In addition to thе L’eggs transaction, Mary Ellen Enterprises had further complaints against the Camex defendants in their handling of other book transactions. Mary Ellen Enterprises sued the Camex defendants for fraud, breach of contract, and breach of fiduciary duty. The jury found liability against Camex on all counts, awarding Mary Ellen Enterprises $182,700 for breach of contract, $482,700 for fraud, and $665,200 for breach of fiduciary duty. The jury also found Columbus liable for breach of fiduciary duty, awarding $20,800 to Mary Ellen Enterprisеs. Camex prevailed on its counterclaim for breach of contract, entitling it to a $23,200 offset in the judgment against it. “To avoid double recovery,” the court reduced the total judgment on the diversity claims, entering an aggregate judgment of $524,700 on all three diversity claims. L’eggs and the Camex defendants now appeal.
I.
The Camex defendants argue that there was no evidence of fraud. They argue the jury verdict on the fraud count cannot stand because thеre is insufficient evidence of fraud as a matter of law and because the district court erred in denying their motion for a new trial.
We view the evidence in the light most favorable to the jury verdict, assuming as true all facts which Mary Ellen Enterprises’ evidence tended to prove. Farley v. Henson,
The evidence, and its reasonable inferences, shows that the Camex defendants failed to disclose to Mary Ellen Enterprises that L’eggs purchased 300,000 copies of the Helpful Hints book. Cаmex argues that the evidence that Pinkham released the printing plates for the book to Camex and directed Camex to retain the plates negates a finding of fraud because Camex did not induce Mary Ellen Enterprises to send the printing plates for a fraudulent purpose. That Mary Ellen Enterprises sent the printing plates to Camex does not negate the jury’s finding of fraud. Although Mary Ellen Enterprises originally sent the printing plates to Camex, it did so based on Camex’s representation that it would print 13,000 test market copies of the book. There is evidence that Camex failed to inform Mary Ellen Enterprises that L’eggs ordered an additional 300,000 copies and paid Camex $155,000. Indeed, there is evidence that Columbus told Pinkham that the book was unsuccessful in its test market and that the book had “no future” with L’eggs. Although Mary Ellen Enterprises received a check for its share of the profit from the L’eggs test, Camex led Pinkham to believe that the rеlationship with L’eggs ended after unsatisfactory test market results.
Mary Ellen Enterprises also claimed Camex fraudulently handled a transaction with Outlet Books. Camex entered into an agreement with Outlet Books to create and publish 45,000 copies of two baby books. The agreement also provided that Pinkham would write an introduction for the two books. There was evidence that Camex described a different version of the Outlet deal to Mary Ellen Enterprises. Columbus told Pinkham that he had an order for 20,000 copies of two of her baby books and asked her to release the printing plates to him. Pinkham agreed to this sale in exchange for
Despite this evidence, Camex contends that Pinkham agreed to publish two of her baby books in repackaged form. For support, it cites an April 23, 1984 letter Camex wrote to Mary Ellen Enterprises, informing it that “Outlet books wants 25,000 each of the two Baby Books.” The letter also stated, however, that the deal was not finalized, and Camex later wrote Pinkham informing her that it had an order for “20,000 books total.” This letter supports the jury’s finding of fraud, as a reasonable juror could conclude that the letter did not accurately describe the deal Camex had with Outlet. Camex actually had an order for 45,000 books and the order was not for Pinkham’s books, but books created by Outlet.
We similarly reject Camex’s argument that Mary Ellen Enterprises cannot prove fraud for the baby book transaction because there is no evidence of damage, as required by Minnesota law. See Berg v. Xerxes-Southdale Office Bldg. Co.,
Finally, there is evidence to support fraud in Camex’s handling of the sale of overstock books. In the spring of 1985, Mary Ellen Enterprises was experiencing liquidity problems. Mary Ellen Enterprises owed Norwest Bank $400,000, and Norwest Bank had a security interest in Mary Ellen Enterprises’ inventory. Camex agreed to sell Mary Ellen Enterprises’ inventory of overstock books and to sign an agreement to remit the sale proceeds to the bank. In March 1985, Camex obtained a purchase order to sell $107,000 worth of overstock books to Waldenbooks and Bookthrift. There was evidence from which a reasonable juror could conclude that Camex sold the books with the intent not to pay Mary Ellen Enterprises or the bank. Camex never signed the bank agreement, sold $107,000 worth of the overstock books, and did not pay Mary Ellen Enterprises or the bank. Camex argues Mary Ellen Enterprises proved no fraud in this transaction because the purchase order stated that payment was not due for ninety days from the receipt and acceptance of inventory. Camex argues there can be no intent to defraud because Camex had no obligatiоn to pay the bank or Mary Ellen Enterprises until June 1985. Whether Ca-mex intended to ultimately pay Mary Ellen Enterprises was a question for the jury to decide. The jury could accept or reject Ca-mex’s explanation for its delay in paying Mary Ellen Enterprises. There is sufficient evidence to support the jury’s finding of fraud.
II.
Camex and L’eggs attack the damage awards on several fronts. First, Camex and L’eggs contend that the $300,000 award in the copyright action cannot stand bеcause Pinkham failed to prove causation. Second, Camex argues the award on the diversity counts is not supported by the evidence, is excessive, and constitutes an award of double damages.
A.
Camex and L’eggs argue that there is no evidence of actual damages to Pinkham in the copyright action. They do not appeal the lost-profits award, but say there is simply no competent evidence that the distribution of the book caused any actual damages to Pink-ham.
The Copyright Act provides:
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken*1070 into account in computing the actual damages.
17 U.S.C. § 504(b) (1988).
The jury returned separate verdicts in the copyright action, awarding Pinkham $202,000 in lost profits ($66,000 assessed to Camex and $136,000 assessed to L’eggs), and $300,-000 in actual damages. Camex and L’eggs argue that Pinkham failed to produce cоmpetent evidence of actual damages, beyond the lost profits, as a result of the infringement. In particular, they argue that Pinkham did not produce evidence of the book’s sales before or after the infringement, or identify any specific lost future sale. Camex and L’eggs contend that actual damages cannot be based on Pinkham’s unsupported assertion that the infringement “tarnished” her book, and that this ease is indistinguishable from Pfanenstiel Architects, Inc. v. Chouteau Petroleum Co.,
There was evidence in this case to support an award of actual damages beyond the lost-profits award. Pinkham presented evidence that a book is usually only used once as a premium and that the book’s value decreases following its use as a premium. Pinkham testified that L’eggs’ specific use of the book substantially diminished its future value because L’eggs used the book in an attempt to sell “seconds” or damaged hosiery, offered the book “free” with any purchase no matter how small, and identified the book with a $3.95 retail price rather than the $4.95 retail price then in effect. This evidence demonstrates damage to the copyright itself and is more specific than that offered in Pfanenstiel Architects, Inc.,
Contrary to Camex’s assertions, there was evidence comparing the book’s value before and after the infringement. Pinkham testified that the book had a $2 to $3 million premium value based on the book’s prior $32 million in retail sales, and the fact that her endorsement was worth $500,000. A literary agent testified that as of 1985, the markеt value of the book’s premium rights was $2 million. Pinkham and the agent explained that premium rights of the book consisted of two components: the actual value of the book as well as the value of Pinkham’s implied endorsement of the associated product. The agent testified that the book had an actual value of $1 per book, and an implied endorsement value of $300,000 to $350,000. There was also evidence that after the infringement Pinkham sought commercial opportunities for the book and was only able to sell a revised version of the book five years later for $1.00 per copy. A copyright owner is competent to testify as to the copyright’s value and to the extent to which the defendant has injured the copyright’s value. See, e.g., Fitzgerald Pub. Co. v. Baylor Pub. Co.,
B.
Camex also argues that there is no evidence to support the damage аwards against Camex for breach of fiduciary duty, fraud, and breach of contract and against Columbus for breach of fiduciary duty, and that the awards are clearly excessive and amount to a double recovery.
The jury found against the Camex defendants and awarded Mary Ellen Enterprises $482,700 for fraud, $182,700 for breach of contract, and $665,200 for breach of fiduciary duty. “[T]o avoid double recovery,” the court reduced the awards and entered an aggregate judgment of $524,700 (including a $23,200 offset for the breach of contract award in Camex’s favor).
Camex points out that Pinkham’s copyright claim and Mary Ellen Enterprises’ fraud claim are based on the L’eggs promotion. Camex contends that Pinkham’s $492,000 copyright award cannot be separated from Mary Ellen Enterprises’ $482,700 fraud award. Camex points out that the jury’s award on the fraud claim equals the jury’s breach of contract award and actual
The Camex defendants concede that the threshold for reversing a damage award is high, but argue that this court may do so when, as here, the evidence utterly fails to provide any basis for the jury’s award of damages. First Nat’l Bank & Trust Co. v. Hollingsworth,
We are not persuaded that the fraud award in the diversity suit and actual damages award in the copyright suit are duplica-tive. First, the district court reduced the jury’s awards on the diversity claims, including the fraud award, by $782,700. Second, the court instructed the jury that the actual damages award in the copyright action is measured by the decline in the copyright’s value as a result of the infringement, and that fraud damages are limited to “out-of-pocket loss.” Although some portion of these awards may overlap,
The Camex defendants have not shown that the $547,900 award is duplicative, unsupported by the evidence, or excessive.
III.
Camex and L’eggs also argue that the district court abused its discretion in awarding attorneys’ fees and in apportioning the attorneys’ fees between L’eggs (40%) and the Camex defendants (60%).
Citing Fogerty, the district court ruled that it was appropriate to award attorneys’ fees. Camex and L’eggs argue that the court abused its discretion in awarding attorneys’ fees. They contend that they litigated in good faith against Pinkham’s unreasonable demands for damages, and that this militates against an award of attorneys’ fees.
L’eggs and the Camex defendants also argue error in the court’s apportionment. Ca-mex points out that the jury found that Ca-mex was not a wilful infringer. L’eggs, on the other hand, cites the district court’s findings that L’eggs was an “innocent” infringer, and would not “have found itself in this lawsuit had it not been for the acts of the Camex defendants,” as support for its position that L’eggs has no liability for attorneys’ fees.
The district court was well within its discretion in awarding and apportioning attorneys’ fees. Bad faith or wilfulness is not a prerequisite to an award of attorneys’ fees. See RCA/Ariola Int’l, Inc. v. Thomas & Grayston Co.,
IV.
L’eggs argues that it is entitled to complete indemnity from the Camex defendants as a matter of law. L’eggs argues it is entitled to indemnification based on the unqualified representation of Columbus and Benedetto that they had Pinkham’s authorization to distribute the book.
After this court’s decision in the first appeal, the district court found L’eggs to be a direct infringer, not vicariously liable through Camex. A party сlaiming indemnification must demonstrate that it committed no wrong, but by virtue of some relationship with the joint tort feasor or by obligation imposed by law, was nevertheless held liable to the injured party. See William L. Prosser & W. Page Keeton, The Law of Torts § 51 (5th ed. 1984).
L’eggs argues the fault for the resulting infringement lies squarely and solely with the Camex defendants. L’eggs had notice of Pinkham’s copyright, however, and failed to confirm permission to use the copyrighted material with Pinkham. L’eggs is not entitled to complete indemnification as a mattеr of law. See Olan Mills, Inc. v. Linn Photo Co.,
y.
Camex also argues that the district court abused its discretion by consolidating the copyright and diversity actions. After this court reversed the district court’s denial of summary judgment against Sara Lee in the copyright action, the district court found that the interests of judicial economy dictated that the cases be consolidated. Camex contends that the copyright damages evidence would have been otherwise inadmissible in a separate trial on the diversity claims. Camex contends that the complicated evidence on copyright damages confused the jury-
Although there was evidence of other transactions in the diversity case, the copyright claim and the diversity clаims were undeniably tied together by the L’eggs transaction. See Fed.R.Civ.P. 42(a) (authorizing joint trial of actions involving “a common question of law or fact ... to avoid unnecessary costs or delay”). In addition, the court instructed the jury that the trial involved two separate actions, and the jury verdict form clearly differentiated between the two actions. The district court did not abuse its discretion in consolidating the issue of copyright damages with the trial of the diversity claims.
VI.
The Camex defendants argue that the district court abused its discretion in excluding evidence of Pinkham’s alcoholism.
At various times during trial, Camex and L’eggs sought to introduce evidence that Pinkham was an alcoholic and received treatment for her alcoholism during late March 1983 and April 1984. Camex sought to introduce a book and a magazine article in which Pinkham discussed her alcoholism, including her memory problems, blackouts, and inability to perform her job. Camex argues this evidence was significant, as much of the case turned on conflicts between Pinkham and Columbus as to what Columbus told Pinkham about the various book deals.
Outside the jury’s presence, Pinkham admitted that she was an alcoholic and had undergone treatment for her alcoholism at the end of March 1984. Pinkham explained that although she drank, she did not drink “on the job,” and only experienced blackouts while she was “actively drinking,” and not while she was working. She denied having any problems with her memory.
The court excluded the testimony about Pinkham’s alcoholism, ruling that it was irrelevant because there was no showing that Pinkham’s recollection was impaired and that the evidence was unduly prejudicial.
We have carefully reviewed Pinkham’s testimony and cannot conclude that the district court abused its discretion in excluding the evidence about Pinkham’s alcoholism. As the district court reasoned, the evidence about Pinkham’s alcoholism does not tend to show that Pinkham had any difficulty understanding or recalling events related to her dealings with Camex. The court did not abuse its discretion in excluding the evidence.
We affirm the district court’s judgment.
Notes
. The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
. During trial, the parties substituted L’eggs as defendant for the Sara Lee entities.
. Harper House, Inc. v. Thomas Nelson, Inc.,
. The record also supports the jury’s award of $20,800 against Columbus for breach of fiduciary duty. Viewing the record in the light most favorable to Mary Ellen Enterprises, there is evidence that Columbus earned commissions of at least that amount.