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Bell v. Taylor

United States District Court, S.D. Indiana, Indianapolis Division

September 2, 2016

RICHARD N. BELL, Plaintiff,



         This matter is before the Court on Defendants Cameron Taylor's, Taylor Computer Solutions', Insurance Concepts', Fred O'Brien's, and Shanna Cheatam's (collectively, “Taylor Defendants”) Motion for Attorney Fees and Costs and Bill of Costs (Filing No. 172, Filing No. 173) pursuant to 17 U.S.C. § 505 of the Copyright Act, 28 U.S.C. § 1927, and Federal Rules of Civil Procedure 54 and 68. Taylor Defendants filed their request for costs and fees after they became the “prevailing party” in this Copyright Act case. For the following reasons, the Court GRANTS Taylor Defendants' request for costs and fees.

         I. BACKGROUND

         To put it mildly, this dispute has been zealously litigated by both sides. On June 7, 2011, Plaintiff Richard N. Bell (“Bell”), a practicing attorney and professional photographer, filed a complaint in this Court against the five Taylor Defendants and twenty other defendants, asserting a claim for copyright infringement of a photograph of the Indianapolis skyline taken by Bell during the day (“Indianapolis Photo”) under case number 1:11-cv-766. In their Answer, Taylor Defendants denied ever using the Indianapolis Photo. In discovery responses, Taylor Defendants denied using the Indianapolis Photo and, in fact, produced a copy of a nighttime photograph of the Indianapolis skyline taken by Bell (“Indianapolis Nighttime Photo”), which Mr. Taylor admitted using on his website.

         Following numerous amendments to the complaint and an order severing the misjoined defendants, Bell's Indianapolis Photo copyright lawsuit against Taylor Defendants continued under case number 1:13-cv-798 (this case). After the Order severing the misjoined defendants, Bell sought to amend his complaint a fourth time to add allegations regarding the Indianapolis Nighttime Photo. On June 11, 2014, the Court denied Bell's motion to file a fourth amended complaint because he was not diligent in pursuing his claim involving the Indianapolis Nighttime Photo, and he caused an undue delay (Filing No. 97).

         Before the Court ruled on Bell's motion to file a fourth amended complaint, Bell initiated an entirely new case with a new complaint filed in this Court on April 7, 2014, alleging copyright infringement of the Indianapolis Photo and the Indianapolis Nighttime Photo against numerous defendants, including Mr. Taylor and Taylor Computer Solutions, under case number 1:14-cv-525. One month later, the Court ordered severance of the misjoined defendants in that action, and the case against Mr. Taylor and Taylor Computer Solutions proceeded without the numerous other misjoined defendants under case number 1:14-cv-785.

         In this case, Taylor Defendants filed a motion for summary judgment on May 2, 2014. On August 26, 2014, the Court granted the motion for summary judgment and entered final judgment against Bell. Bell appealed the decision to the Seventh Circuit Court of Appeals, which dismissed the appeal for lack of jurisdiction so that the Court could resolve the issue of declaratory and injunctive relief. Bell and Taylor Defendants moved for summary judgment on the claim for declaratory and injunctive relief, and the Court entered judgment in favor of Taylor Defendants. Bell again appealed the decision to the Seventh Circuit.

         In case number 1:14-cv-785, Taylor Defendants filed a motion to dismiss, asserting that res judicata barred the action against Taylor Defendants. The basis for their res judicata argument was the Court's summary judgment order in this case (1:13-cv-798) in favor of Taylor Defendants. The Court granted Taylor Defendants' motion to dismiss, and Bell filed a motion to alter or amend the judgment under Rule 59(e). The Court denied Bell's motion to alter the judgment, and Bell filed an appeal to the Seventh Circuit.

         The Seventh Circuit reviewed the Court's orders in this case and the orders in case number 1:14-cv-785 and affirmed this Court's orders in all respects. While the appeal was pending, Taylor Defendants filed their Motion for Attorney Fees and Costs (Filing No. 173). As the prevailing party in a copyright action, Taylor Defendants seek their costs and attorney fees pursuant to 17 U.S.C. § 505. They also rely on 28 U.S.C. § 1927 as an additional basis for requesting their costs and fees.


         Under 17 U.S.C. § 505, in any copyright civil action, the district court in its discretion may allow the recovery of all costs of litigation, including an award of a reasonable attorney's fee as part of those costs, to the prevailing party. A party prevails “when it obtains a ‘material alteration of the legal relationship of the parties.'” Hyperquest, Inc. v. N'Site Solutions, Inc., 632 F.3d 377, 387 (7th Cir. 2011) (quoting Riviera Distributors, Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008)). “Defendants who defeat a copyright infringement action are entitled to a strong presumption in favor of a grant of fees.” Hyperquest, 632 F.3d at 387. “When the prevailing party is the defendant, who by definition receives not a small award but no award, the presumption in favor of awarding fees is very strong.” Assessment Techs. of WI, LLC v. Wire Data, Inc., 361 F.3d 434, 437 (7th Cir. 2004); see also FM Indus. v. Citicorp Credit Servs., 614 F.3d 335, 339 (7th Cir. 2010) (“a defendant that prevails in copyright litigation is presumptively entitled to fees under § 505”).

         The United States Supreme Court noted that in determining whether to exercise its discretion to award costs and fees in a copyright case, district courts should look to a number of nonexclusive factors including: (1) the frivolousness of the action; (2) the losing party's motivation for filing or contesting the action; (3) the objective unreasonableness of the action; and (4) the need to “advance considerations of compensation and deterrence.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 n.19 (1994).

         Section 1927 of Title 28 of the United States Code provides that “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” “If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious, ” and the attorney may be subject to an attorney fees sanction under 28 U.S.C. § 1927. Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 614 (7th Cir. 2006) (citation and quotation marks omitted).

         III. ...

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