McRoberts Software, Inc. (“MSI”) sued Media 100, Inc. (“Media 100”) for copyright infringement, trade secret misappropriation, and breach of contract stemming from a 1995 licensing agreement between the parties for MSI’s character generation computer software program. A jury found in favor of MSI on all three claims and awarded substantial damages. Upon motions by both parties for post-trial relief, the district judge: (1) affirmed the jury’s finding that Media 100 infringed MSI’s copyright, misappropriated MSI’s trade secrets, and breached their contract; (2) upheld the jury’s award of damages to MSI for copyright infringement and breach of contract; (3) vacated the jury’s award of damages to MSI for trade secret misappropriation, calling it duplicative of the copyright infringement award; and (4) awarded MSI attorneys’ fees and prejudgment interest.
Media 100 now appeals the jury’s finding of liability for copyright infringement, the jury’s damage awards for copyright infringement and breach of contract, and the district court’s decision to award MSI attorneys’ fees and prejudgment interest. MSI appeals the district court’s decision to vacate the jury’s damage award for trade secret misappropriation. We reverse the district court’s order vacating the trade secret damages award and affirm in all other respects.
I. Background
In 1992 MSI developed a computer software program for character generation called Comet/CG. Character generation is the process of placing text over video and audio, as when words appear over images in a television ad or credits scroll at the end of a movie. Prior to MSI’s inventing its software, character generation required specialized hardware which cost up to $100,000, but MSI’s Comet/CG software provided similar character generation capability for users of Apple’s Macintosh personal computers at around $1,300. Media 100 (formerly Data Translation, Inc.) manufactured video editing equipment, including the very expensive character generation hardware used by advertising agencies and television production studios. When Media 100 decided to enter the personal computing market it turned to MSI to supply its Comet/CG software for use with its new “Media 100” line of personal video editing board hardware. MSI and Media 100 negotiated three separate licensing agreements, in 1993, 1995, and 1998. Only portions of the 1995 agreement are relevant to this case.
*562 Initially, Media 100’s personal video editing boards functioned only on Macintosh computers through a video card component called a NuBus. Windows computers, in contrast, are compatible only with a video component called a PCI bus. Therefore, until Macintosh retooled its computers in 1995 to accept PCI bus hardware, video editing systems could only function on Macintosh or Windows machines, but not both. The programming language for Macintosh and Windows machines was similarly incompatible, so MSI’s Comet/CG source code could only be executed with Macintosh-compatible video editing boards. Early in the partnership between Media 100 and MSI, the Windows versus Macintosh debate remained distant on the horizon, at least in the video and graphic arts world. But it soon became clear that the personal computing market was going the way of Windows. By the time MSI and Media 100 negotiated their 1995 licensing agreement, both companies sensed that a profitable future had something to do with producing Windows-compatible products.
The crux of MSI’s copyright infringement claim turns on the meaning of the phrase “Media 100 hardware” in the 1995 licensing agreement. Specifically, the parties dispute whether the license permitted Media 100’s use of Comet/CG on only existing Macintosh-compatible systems (and their progeny) or on as-yet-undeveloped Windows-compatible systems. On summary judgment the district court determined that Section 5 of the 1995 licensing agreement defined the scope of Media 100’s license to use MSI’s Comet/CG software, and that all other intellectual property rights not licensed by the agreement were deemed held exclusively by MSI. Section 5 provided:
Subject to [Media 100] timely paying all amounts owing hereunder, upon payment of the $75,000 license fee stated in section 3.2 for the CG Option 2.0 license, then [Media 100] shall have a paid-up license to (1) modify the CG Option 2.0 source code; (2) generate executable code versions of CG Option 2.0; (3) distribute executable code versions of CG Option 2.0 when integrated with [Media 100]’s Media 100 hardware and software used for digital video editing, and such versions shall be licensed only for use on such hardware.
[Media 100] shall provide one source code copy of all revisions it makes to Comet/CG to MSI on magnetic media within thirty (30) days of release, and MSI may incorporate such revisions in its version of Comet/CG.
During negotiations for the 1995 agreement, MSI knew that Media 100 had developed a new video editing board based on the PCI bus architecture. While Media 100’s new bus hardware made its products potentially compatible with Windows machines, the bundled video editing software, including Comet/CG, that Media 100 agreed to license from MSI still only operated on Macintosh machines. In 1998 Media 100 decided that it could no longer afford to be outside looking in on the Windows machine market, so it entered an agreement with software development firm Vanteon (formerly Millennium Computer Corp.) to translate the Comet/CG source code from Macintosh to Windows (akin to translating English to Chinese, in the words of MSI owner, Mr. McRoberts). Media 100 gave Vanteon a copy of MSI’s confidential Comet/CG source code, without MSI’s consent or knowledge, and paid Vanteon nearly $3.2 million to translate the code as quickly as possible. When Vanteon completed the task, Media 100 took the new code, put it into a Windows-compatible video editing system, and began selling it immediately. This new product line was named “Finish” and was essentially the same as the old “Media 100” *563 line, except that Finish worked on Windows machines and Media 100 worked on Macintosh machines.
Soon after the Finish boards containing the translated Comei/CG code hit the market, MSI complained to Media 100 that it was not licensed to incorporate the Comet/CG software into its Windows-compatible product line, nor was it licensed to use any new version of Comet/CG that operated on PCI bus architecture rather than NuBus. Moreover, MSI demanded that Media 100 give it a copy of the translated Comei/CG code created by Vanteon as required by the licensing agreement. Media 100 refused to give MSI the translated code, but it removed all Finish products containing the translated MSI software from the market, licensed another company’s Windows-compatible CG software, and reissued the Finish video boards with the new software.
MSI sued Media 100 in federal district court, claiming: (1) copyright infringement under the Federal Copyright Act based on Media 100’s unauthorized creation and distribution of the translated Windows-compatible Comet/CG software, (2) trade secret misappropriation under Indiana’s Trade Secret Act based on Media 100’s unauthorized disclosure of the confidential Comet/CG source code to Vanteon, and (3) breach of contract under Indiana common law based on Media 100’s failure to provide MSI with a copy of its translated Windows-compatible Comet/CG software. The district court denied Media 100’s motion for partial summary judgment, finding that MSI’s intellectual property claims were not preempted by the terms of the licensing agreement. The court determined that the 1995 license permitted Media 100 to generate and distribute executable code versions of Comet/CG source code that it had modified, but only so long as the modifications to the source code were themselves within the scope of the license. Further, the court determined that the scope of the licensing agreement was ambiguous. Although the court found that the phrase “when integrated with [Media 100]’s Media 100 hardware and software used for digital editing” delineated the scope of the license, it decided that the phrase may have included only NuBus hardware and Macintosh-compatible systems, as MSI contended, or it may have also included PCI bus hardware and Windows-compatible systems, as Media 100 argued.
MSI and Media 100 took their case to trial, and a jury found in favor of MSI on all three claims, awarding MSI substantial damages. Specifically, the jury awarded MSI damages for copyright infringement in the amount of $1.2 million for actual damages and $900,000 for lost profits; for trade secret misappropriation in the amount of $300,000; and for breach of contract in the amount of $85,000. Media 100 sought post-trial relief on all claims under Rules 50 and 59 of the Federal Rules of Civil Procedure. The court denied Media 100’s Rule 50 motion for judgment as a matter of law on the substantive claims and declined to award a new trial under Rule 59 or reduce the jury’s damage awards for copyright infringement and breach of contract; however, the court vacated the jury’s $300,000 damage award for trade secret misappropriation, calling it duplicative of the copyright infringement award. Additionally, the district court granted MSI’s post-trial motion for attorneys’ fees ($192,283), costs ($475), and prejudgment interest ($313,061). Media 100 and MSI. both appeal from the district court’s post-trial orders.
II. Discussion
A. Copyright Infringement Liability
The jury determined that Media 100 infringed MSI’s copyright because Me
*564
dia 100 acted outside the scope of the 1995 licensing agreement when it copied and translated the Comet/CG source code into Windows with Vanteon’s paid assistance, and then distributed the translated version of the Comet/CG software with its Windows-based Finish products. The district court denied Media 100’s post-trial motion for judgment as a matter of law on copyright infringement, and we review that decision
de novo. Mathur v. Board of Trustees of Southern Illinois
University,
Giving due deference to the jury’s findings, we cannot say as a matter of law that Media 100 did not infringe MSI’s copyright in its Comet/CG source code. In ruling on the parties’ summary judgment motions prior to trial, the district court held that the licensing agreement between MSI and Media 100 was ambiguous in scope. In particular, the court found that it was unclear whether the license gave Media 100 the right to do what it ultimately did, which was translate the Comet/CG source code into Windows and then distribute the translated software in new Media 100 Windows hardware, without first obtaining permission from MSI. The parties submitted this question of interpretation to the jury, and the jury resolved the ambiguity in favor of MSI.
Media 100 now argues on appeal that it is entitled to judgment as a matter of law because the plain language of the 1995 agreement and the evidence introduced at trial established conclusively that Media 100 did not exceed the scope of its license. Media 100 claims that the ambiguity in the license agreement over the meaning of the term “Media 100 hardware” can only be resolved in its favor because MSI’s founder and president, Mr. McRoberts, testified at trial that he knew at the time he negotiated the 1995 agreement that Media 100 would want to modify the Comet/CG source code to work on Windows hardware. Since Mr. McRoberts knew this, Media 100 argues, he of course meant for the phrase “Media 100 hardware” in the 1995 agreement to include both existing Macintosh hardware and the not-yet-developed Windows hardware. Since the jury was told that Media 100’s liability for copyright infringement turned on whether the phrase “Media 100 hardware” included Windows hardware, and since Mr. McRo-berts testified that he knew Media 100 might want to develop and sell Windows hardware at some time in the future, Media 100 argues that the jury could only have concluded that Media 100 operated within the scope of the license when it translated and distributed a Windows version of Comet/CG without MSI’s permission.
In contrast, MSI argues that Mr. McRo-berts intentionally neglected to define “Media 100 hardware” in the 1995 license as including Windows hardware because (1) neither MSI nor Media 100 had any *565 Windows-compatible products in existence at that time, so it was unnecessary to affirmatively include or exclude them from the license, and (2) MSI wanted to preserve its right to participate in the development of character generation software for Windows if and when Media 100 decided to make an investment in the technology on its end. MSI supported its interpretation of the license with several pieces of evidence, including: (1) the testimony of Mr. McRoberts regarding his intentions at the time he made the agreement with Media 100, (2) the testimony of Media 100 executives regarding their understanding of the scope of the license, none of whom could definitively say that they knew Mr. McRoberts meant to include the use of undeveloped Windows-compatible software in the terms of the 1995 license, (8) copies of MSI’s past software development contracts and Comet/CG licensing agreements with Media 100 and other hardware companies, and (4) the district court’s instruction to the jury that the meaning of the term “Media 100 hardware” in the 1995 agreement was indisputably ambiguous. The evidence also showed that Media 100 paid about the same amount of money for its 1995 license as it had for earlier licenses of Comet/CG, even though, according to Media 100, the 1995 license was immensely greater in scope because it included the right to modify, create, and distribute Comet/CG in Windows products as well as Macintosh products.
Given all of this evidence, it was reasonable for the jury to conclude that the 1995 license limited Media 100’s use of the Comet/CG software to Macintosh hardware only, and that Media 100 exceeded the scope of the license, infringing MSI’s copyright, through its unauthorized modification and distribution of the Comet/CG source code in Windows hardware. 1 At trial the jury heard evidence of both parties’ interpretations of the scope of the licensing agreement, and in particular the meaning of the phrase “Media 100 hardware.” Media 100 now claims that because the evidence better supports its interpretation, it can only support its interpretation. This, however, is not the standard we use to review jury verdicts; faced with two permissible, conflicting interpretations, the jury in this case was entitled to resolve the ambiguity in the licensing agreement in favor of MSI.
B. Copyright Infringement Damages
The jury awarded MSI $1.2 million in actual damages plus $900,000 in lost profits on its copyright infringement claim. Media 100 claims on appeal that the jury’s damages awards were unsupported by the
*566
evidence and that the lost profits award was duplicative of the actual damages award. Media 100 seeks to vacate the awards, or at least reduce the lost profits award, so that MSI does not receive “double damages.” Our standard of review is the same here as for the copyright infringement claim: we are looking to see whether there is a reasonable basis in the record to support the jury’s damages awards.
See Emmel,
1. Actual Damages
Media 100 claims that the $1.2 million award for actual damages is unsupported by the evidence. The Copyright Act permits a copyright owner to recover actual damages suffered as a result of the infringing activity and any profits of the infringer resulting from the infringement that are not otherwise taken into account in calculating actual damages. 17 U.S.C. § 504(b). Actual damages are usually determined by the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.
Deltak, Inc. v. Advanced Systems, Inc.,
Despite Media 100’s disagreement with the jury’s calculations, MSI presented sufficient evidence at trial to sustain the jury’s award of $1.2 million in actual damages for copyright infringement. It is not improper for a jury to consider either a hypothetical lost license fee or the value of the infringing use to the infringer to determine actual damages, provided the amount is not based on “undue speculation.”
On Davis v. The Gap, Inc.,
First, Media 100 maintains that it would not have hired MSI to translate the Comet/CG source code to Windows because MSI did not have the technical capability or human resources to complete the project, and even assuming MSI could have done the work, Media 100 was not obligated under the license agreement to hire MSI for the job. This argument misses the point; MSI is entitled under the Copyright Act to recover actual damages resulting from the infringement of its copyright. In this case one element of infringement was Media 100’s unauthorized creation (with Vanteon’s paid assistance) of a derivative work — the translated Windows version of ComeVCG — based on MSI’s copyrighted ComeVCG source code. Media 100’s estimation of MSI’s interest or ability in the translation project is irrelevant, for Media 100 infringed MSI’s copyright in part by hiring Vanteon to translate the source code without permission from MSI, and MSI may lawfully seek damages resulting from this infringement.
Second, Media 100 claims that because MSI failed to establish either the actual value of the translated ComeVCG software as distributed in the Finish products or the value of the lost licensing fee to MSI, any part of the jury’s award based on these values is purely speculative. But MSI was not required to establish the actual value; it was required only to provide sufficient evidence of the value so that the jury did not have to resort to undue speculation in estimating actual damages.
Deltak,
2. Lost Profits
Media 100 next argues that the jury’s award of $900,000 for lost profits should be vacated or reduced because the award was contrary to the evidence and duplicative of the $1.2 million actual damages award. The Copyright Act permits a copyright owner to recover any profits of the infringer resulting from the infringement that are not otherwise taken into account in calculating actual damages. 17 *568 U.S.C. § 504(b). Media 100 maintains that it presented uncontroverted evidence at trial proving that it realized no profits from the sale of its Finish products incorporating the translated ComeVCG software; therefore, the jury must not have properly apportioned Media 100’s profits as mandated by § 504(b) and as instructed by the court. Moreover, Media 100 claims that even if it had made any profits, the $900,000 award should be reduced to the extent that it amounts to “double counting” of MSI’s actual damages. Both of these claims are unavailing.
First, the jury heard testimony from both MSI and Media 100 regarding the revenues and expenses associated with the distribution of Finish products incorporating the translated Windows version of ComeVCG software. From this evidence, the jury determined that Media 100 did, in fact, realize a $900,000 profit from its sales. MSI carried its initial burden under § 504(b) of proving Media 100’s revenues by submitting evidence of Media 100’s actual and projected sales of the Finish product line. Media 100 then had the burden of proving apportionment to the jury,
Roulo v. Russ Berne & Co.,
Media 100’s claim that it presented “un-controverted” evidence of its expenses, which the jury presumably ignored, is simply false. At trial MSI challenged Media 100’s calculation of fixed and variable expenses, some of which are deductible and some of which are not, and the jury even asked for clarification of the expenses from the judge during its deliberations. From this conflicting evidence, the jury could reasonably have concluded that Media 100’s estimates of the value of ComeVCG to its Finish products and of its deductible expenses were incorrect or unsubstantiated, and chosen instead to credit MSI’s revenue and expense figures when it calculated Media 100’s profits. Media 100’s contention on appeal that its costs and expenses far exceeded its revenues merely rehashes its unsuccessful arguments to the jury. Under these circumstances, and without any other evidence that the jury intentionally disregarded its duty to apportion profits,
see Pribyl,
Second, Media 100 argues that the jury’s $900,000 lost profits award was duplicative of the $1.2 million actual damages award and should be vacated. Lost profit damages serve to make the copyright owner whole in cases where the infringer’s gains exceed the owner’s losses.
See Taylor v. Meirick,
MSI’s recovery of Media 100’s profits is, however, limited to only those profits attributable to the infringement that were not otherwise included in the jury’s calculation of actual damages. As discussed earlier, MSI presented evidence at trial suggesting that it suffered anywhere from $1.43-$15.6 million in damages as a result of Media 100’s copyright infringement. The jury was instructed to measure MSI’s actual damages from the copyright infringement by “the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the use made by Media 100 of [MSIj’s ComeVCG source code,” and to measure Media 100’s profits by “the amount of money that Media 100 made because of the infringement minus deductions for expenses in producing and marketing the infringing work.” The jury also was told not to award lost profits for any amount that was already taken into account in determining actual damages. Even if we cannot know for certain which pieces of evidence the jury relied on in making each of its calculations, the instructions were proper as a matter of law and we must assume that the jury followed them. Because the evidence of MSI’s injuries was more than adequate to support the jury’s total damage award for copyright infringement, we conclude that the jury’s award of $900,000 for lost profits was not duplicative of its award of $1.2 million in actual damages.
C. Trade Secret Misappropriation Damages
In its cross-appeal, MSI claims that the district court erred by vacating the jury’s award of $300,000 in damages for trade secret misappropriation. We review the court’s decision
de novo
and look to see whether there is sufficient evidence in the record to support the jury’s damages award.
Mathur,
Unlike the district court, we find that MSI presented ample evidence to support the jury’s award of damages for trade secret misappropriation. The jury was clearly instructed by the court as to how it should properly calculate damages for both trade secret misappropriation and copyright infringement. Once both parties approve the jury instructions, they become the law of the case,
see Jabat, Inc. v. Smith,
*570 In calculating trade secret damages, for example, the court told the jury to consider either “the cost Media 100 would have incurred in acquiring the same information or trade secret through its own experimentation or through other lawful means,” or “the actual value of what has been appropriated or the reasonable royalty at the time of the misappropriation.” The jury was also reminded that MSI had the burden of proving its damages “for actual loss [proximately] caused by the misappropriation” by a preponderance of the evidence. In comparison, the instruction for computing copyright damages told the jury to determine “the amount of money adequate to compensate [MSI] for the reduction of the market value of the copyrighted work caused by the infringement,” as measured by “the amount a willing buyer would have been reasonably required to pay a willing seller ... for the use made by Media 100 of [MSI]’s Comet/CG source code.” Although both instructions inform the jury that the value of the Comet/CG source code is relevant to determining damages, the value of the code is supposed to be measured differently in each instance. Therefore, it is neither surprising nor im-permissibly duplicative for MSI to have presented numerous theories to the jury for calculating its losses.
As a matter of law, it is possible to recover damages based on more than one legal theory in the same suit, provided the plaintiff provides sufficient evidence of his injuries.
See Public Service Co. of Indiana v. Bath Iron Works Corp.,
D. Breach of Contract Damages
Media 100 disputes the validity of the jury’s award of $85,000 to MSI for breach of contract. We review the jury’s award for breach of contract damages to see if it is supported by sufficient evidence in the record.
Emmel,
Media 100 argues that the jury could not have found it liable for the full amount of contract damages for its breach because the translated character generation software had no value. Media 100 claims that the translated Comet/CG source code was only a small, and ultimately defective, part of a larger software bundle distributed with its Finish video editing systems. In contrast, MSI maintains that the translated software had significant value, as shown by the $2.6 million fee Media 100 paid Vanteon to create the Windows-compatible version, and also by the software’s inclusion in the launch of the original Finish product line, whose sales were projected by Media 100 to reach nearly $10 million in its first year. There also is evidence in the record showing that Media 100 went to the trouble of translating MSI’s Comet/CG software rather than licensing Windows-ready character generation software from another company because Media 100 knew that its current customers wanted any new Windows-based product from Media 100 to be compatible with its older Macintosh-based products. In light of this evidence the jury was entitled to come to its own conclusion regarding the value of the Comet/CG software and to award MSI the full measure of contract damages for Media 100’s breach.
E. Attorneys’ Fees
Media 100 argues that the district court abused its discretion by awarding MSI attorneys’ fees under the Copyright Act. Section 505 of the Copyright Act provides that “in its discretion” a district court may “award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. When a court exercises its discretion to award attorney’s fees under § 505 it should consider such non-exclusive factors as “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”
Harris Custom Builders, Inc. v. Hoffmeyer,
*572 Media 100 contends that the district court abused its discretion because it failed to consider the objective reasonableness of Media 100's defenses and based its award of attorneys’ fees entirely on the jury’s finding that Media 100 had willfully infringed MSI’s copyright. Were this assertion true, Media 100 would have a more compelling claim. But the district court in this case applied the proper legal standard, considered all the relevant factors, appropriately exercised its discretion, and articulated its reasons for doing so; it was required to do no more.
The district court determined that both Media 100’s willful infringement, as found by the jury, and the need to deter companies like Media 100 from “taking advantage of non-specific licensing agreements” justified the award of attorneys’ fees in this case. In particular, the court noted that Media 100 had purposefully excluded MSI from participating in the translation of MSI’s own proprietary Comet/CG source code and had willfully abandoned its responsibility to clarify the actual scope of the licensing agreement prior to undertaking the translation. The court explained that Media 100’s failure to seek permission from MSI before it undertook the translation project was particularly indefensible “in light of the dynamic nature of the market for software products.” In
Wakeen Doll
we vacated a district court’s award of attorneys’ fees under the Copyright Act because the court had not explained why it made the award.
F. Prejudgment Interest
Media 100 also challenges the district court’s decision to award prejudgment interest to MSI, a decision that we review for abuse of discretion.
First National Bank of Chicago v. Standard Bank & Trust,
In
Gorenstein,
however, we affirmed an award of prejudgment interest for a trademark infringement, noting that prejudgment interest was properly awarded for a wide variety of federal law violations.
III. Conclusion
We conclude that there was sufficient evidence in the record to support the jury’s determinations that Media 100 is hable to MSI for copyright infringement, that MSI suffered $1.2 million actual damages and $900,000 lost profits as a result of Media 100’s copyright infringement, that MSI suffered $300,000 damages as a result of Media 100’s misappropriation of its trade secrets, and that MSI suffered $85,000 damages from Media 100’s breach of contract. We also hold that it was not an abuse of discretion for the district court to award MSI $192,283 attorneys’ fees or $313,061 prejudgment interest based on Media 100’s willful infringement of MSI’s copyright.
Therefore, the district court’s post-trial orders are Affirmed with respect to the copyright infringement liability, copyright infringement damages, breach of contract damages, attorneys’ fees, and prejudgment interest. We Reverse the district court’s order with respect to trade secret misappropriation damages and order the jury’s award of $300,000 damages to MSI be Reinstated.
Notes
. MSI argues on appeal that the jury could have found copyright infringement based solely on Media 100's act of giving the Comet/CG source code to Vanteon without MSI’s permission. Media 100 essentially conceded this point at oral argument, but insisted that MSI did not present this theory of copyright infringement to the juiy and the jury was not instructed to find infringement on this act alone. Our review of the trial transcript confirms that MSI did argue to the jury in its opening and closing statements that Media 100's distribution of the source code to Van-teon constituted copyright infringement, and MSI's presentation of evidence throughout the trial is consistent with and supports this theory. But, as Media 100 points out, the jury was instructed that to find liability for copyright infringement it had to find that Media 100 copied or made a derivative work from the Comet/CG source code (as by hiring Vanteon to translate it) and that the license agreement limited Media 100's use of the code to Macintosh hardware. We agree with Media 100's reading of the instructions; therefore, we have reviewed the record for sufficient evidence of both Media 100’s unauthorized distribution of the source code to Vanteon and of Media 100’s unauthorized distribution of the source code in Windows hardware.
. The values given are estimates and projections presented by MSI to the jury at various points in the trial; not surprisingly, Media 100 disputes these figures. Because we are required to take the evidence in the light most favorable to the prevailing party when reviewing a juiy verdict, we include here the figures that MSI submitted as evidence.