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Bell v. Powell

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

June 12, 2017

RICHARD N. BELL, Plaintiff,
v.
DAVID N. POWELL, and MIDWEST REGIONAL NETWORK FOR INTERVENTION WITH SEX OFFENDERS, Defendants.

          ORDER ON DEFENDANT DAVID POWELL'S MOTION TO DISMISS

          TANYA WALTON PRATT, JUDGE United States District Court

         This 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 Dismiss.

         I. BACKGROUND

         The 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).

         Bell is 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).

         Powell 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.

         MRNISO 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 http://www.in.gov/ipac/files/MRNISOSpringConferenceBrochure 2015.pdf. Id. at 4, ¶ 18.

         During 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.

         Bell 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.

         In April 2016, Bell discovered through the computer program “Google Images” that the Indianapolis Nighttime Photo was being used without his permission on IPAC's website at http://www.in.gov/ipac/files/MRNISOSpringConferenceBrochure2015.pdf. 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.

         On 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.

         II. LEGAL STANDARD

         Federal 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. 2002).

         The 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).

         III. ...


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