United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
DAVID N. POWELL, and MIDWEST REGIONAL NETWORK FOR INTERVENTION WITH SEX OFFENDERS, Defendants.
ORDER ON DEFENDANT DAVID POWELL'S MOTION TO
WALTON PRATT, JUDGE United States District Court
matter is before the Court on Defendant David N. Powell's
(“Powell”) Motion to Dismiss filed pursuant to
Federal Rule of Civil Procedure 12(b)(6) (Filing No.
15). Following the discovery of unauthorized use of his
photograph of the Indianapolis skyline, Plaintiff Richard N.
Bell (“Bell”) initiated this action, seeking
damages and declaratory and injunctive relief under copyright
laws. Bell asserted a claim for copyright infringement and
unfair competition. On November 9, 2016, Powell filed his
Motion to Dismiss, asserting that there is no factual basis
to support any claim of personal liability against Powell for
copyright infringement and unfair competition. For the
following reasons, the Court GRANTS Powell's Motion to
following facts are not necessarily objectively true, but as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the Complaint and
draws all inferences in favor of Bell as the non-moving
party. See Bielanski v. County of Kane, 550 F.3d
632, 633 (7th Cir. 2008).
an attorney and a professional photographer. This dispute
centers on a photograph taken by Bell in March 2000 of the
Indianapolis, Indiana skyline at nighttime
(“Indianapolis Nighttime Photo”). Bell published
the Indianapolis Nighttime Photo on the Internet five months
later, by uploading it to a Webshots account on August 29,
2000. It was later published on a website created by Bell at
www.richbellphotos.com. Bell registered the copyright of the
Indianapolis Nighttime Photo with the United States Copyright
Office on August 4, 2011, approximately eleven years after he
first published the photograph on the Internet. Bell has sold
licenses of the Indianapolis Nighttime Photo, has retained
sole ownership of the copyright, and has used the photograph
to promote his photography business (Filing No. 1 at
3-4, ¶¶ 8-14).
is the executive director of the Indiana Prosecuting
Attorneys Council (“IPAC”), a state government
agency for Indiana's prosecutors, located in
Indianapolis, Indiana. As the executive director, Powell
directed employees to create and operate IPAC's website.
Id. at 2, 4, ¶¶ 6, 17. Defendant Midwest
Regional Network for Intervention with Sex Offenders
(“MRNISO”) is an Indiana non-profit organization
located in Indianapolis, Indiana. MRNISO created and
controlled a website at mrniso.org. Id. at 3, 4,
¶¶ 7, 15.
downloaded from the Internet and published without
authorization or license the Indianapolis Nighttime Photo in
its brochure promoting its 2015 MRNISO Spring Conference.
Powell then “permitted employees of [IPAC] to republish
the 2015 MRNISO Spring Conference Brochure containing the
Indianapolis Nighttime Photo without permission from the
owner” on IPAC's website. Id. at 4,
¶¶ 16, 18. Bell alleges that Powell's copyright
infringement on IPAC's website can be found at
2015.pdf. Id. at 4, ¶ 18.
2015, the website of MRNISO or Powell published the
Indianapolis Nighttime Photo for its commercial use without
paying for the use and without obtaining the necessary
authorization from Bell (Filing No. 1 at 6, ¶
24). Powell permitted third-parties to access IPAC's
website and copy the Indianapolis Nighttime Photo to
third-party Internet users' computers. Id. at 8,
¶ 33. Neither MRNISO nor Powell disclosed the source of
the infringed Indianapolis Nighttime Photo or otherwise
conferred credit to Bell. Id. at 6, ¶ 23.
alleges that Powell and MRNISO are liable because they had
the ability to control and supervise the content of their
websites and to control and supervise the access of
third-party Internet users to their websites. Id. at
5, ¶ 20.
April 2016, Bell discovered through the computer program
“Google Images” that the Indianapolis Nighttime
Photo was being used without his permission on IPAC's
Id. at 6, ¶ 22. As of the date of this Order,
this web address is non-functional and does not display the
Indianapolis Nighttime Photo or the 2015 MRNISO Spring
Conference brochure. MRNISO and Powell have refused to pay
for the unauthorized use of the Indianapolis Nighttime Photo.
Id. at 7, ¶ 28.
September 18, 2016, Bell filed this action against Powell and
MRNISO, asserting a claim for copyright infringement and
unfair competition and seeking damages and declaratory and
injunctive relief. Shortly thereafter, on November 9, 2016,
Powell filed the pending Motion to Dismiss, arguing that no
factual basis supports a claim of personal liability against
him for copyright infringement and unfair competition.
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a complaint that has failed to “state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). When deciding a motion to dismiss under Rule
12(b)(6), the court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the
plaintiff. Bielanski, 550 F.3d at 633. However,
courts “are not obliged to accept as true legal
conclusions or unsupported conclusions of fact.”
Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir.
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic
Corp. v. Twombly, the Supreme Court explained that the
complaint must allege facts that are “enough to raise a
right to relief above the speculative level.” 550 U.S.
544, 555 (2007). Although “detailed factual
allegations” are not required, mere “labels,
” “conclusions, ” or “formulaic
recitation[s] of the elements of a cause of action” are
insufficient. Id.; see also Bissessur v. Ind.
Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009)
(“it is not enough to give a threadbare recitation of
the elements of a claim without factual support”). The
allegations must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555. Stated
differently, the complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009) (citation and quotation marks
omitted). To be facially plausible, the complaint must allow
“the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).