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Bell v. Maloney

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

July 18, 2017

RICHARD N. BELL, Plaintiff,
v.
MICHAEL MALONEY, Defendant.

          ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          RICHARD L. YOUNG, JUDGE

          Plaintiff, Richard N. Bell, alleges that Defendant, Michael Maloney, committed copyright infringement when he downloaded and published Bell's photograph of the Indianapolis skyline without authorization. Bell now moves for summary judgment on the issue of infringement, and asks that damages be determined at trial. Maloney cross-moves for summary judgment on the issue of ownership. He argues that the photo is a “work made for hire, ” meaning that even though Bell personally took the photograph with his own camera, he does not actually own the copyright. If true, Bell cannot sue for infringement. However, Maloney essentially concedes that if Bell does own the copyright, he infringed.

         The court holds that there is a genuine dispute of material fact as to the ownership of the copyright. Therefore, both motions must be DENIED.

         I. Background

         Bell, a licensed attorney, was a general partner at the law firm of Cohen & Malad (“C&M”) from 1984 to 2009. (Filing No. 32-2, First Declaration of Richard Bell ¶¶ 2-3). On February 8, 2000, Bell signed a contract with West Publishing on behalf of C&M. (Filing No. 40-1, Deposition of Richard Bell, Exhibit D). Pursuant to this contract, West agreed to develop and host an official website for C&M. (Id.). The goal was to generate business for the firm. (Bell Dep. 73:1-14). Bell is listed as the “Firm Contact” on the agreement. (Exhibit D to Bell Dep.). Per the terms of the contract, a website development meeting between West and Bell was scheduled for February 19, 2000, with an alternate date of February 20. (Id.). Bell has no current recollection of this meeting. (Bell Dep. 66:18-67:15). Nonetheless, an e-mail to Bell from a West representative dated February 20 appears to reference Bell's involvement in the call; the message provides, “Great first call… lots of info sent in while we were on the phone together…” (Exhibit E to Bell Dep.).

         Bell exchanged numerous e-mails with West employees concerning the C&M website. All such communications were sent to or from Bell's office e-mail account during normal business hours. (See id.). At some point during these discussions, Bell believes that someone from West proposed using various photographs of Indianapolis on the C&M website.[1] (Bell Dep. 99:12-15). This was intended to make the website more attractive. (Id. 109:16-19). Bell rejected the idea of using generic stock photos because his photos were better and free for C&M to use. (Id. 114:2-15). He had discussions with West personnel about including his photographs on the website. (Id. 67:20-23). An e- mail dated Wednesday, March 8, 2000 states that Bell “is also sending additional images for the homepage.”[2] (Exhibit E to Bell Dep.).

         On the same day, March 8, at approximately 4:00 p.m., Bell took a photograph of the downtown Indianapolis skyline from St. Clair Avenue at the canal bridge (the “Indianapolis Photo”). (Filing No. 41-3, Bell's Answers to Interrogatories at 3-4; Filing No. 38-4, Second Declaration of Richard Bell ¶ 1). He used his own camera to take the Indianapolis Photo; no equipment owned by C&M was used. (Second Bell Dec. ¶ 20). He was not on property owned by C&M when he took the photo. (Id. ¶ 21).

         Bell believes that the website was reviewed by C&M shareholders at firm meetings before it was launched. (Bell's Answers to Interrogatories at 5). The partners specifically discussed using Bell's photos on the website. (Bell Dep. 77:9-25). While some partners disagreed with the idea, it was approved after taking a vote. (Id.). Bell ultimately submitted the Indianapolis Photo to West on August 22, 2000. (Exhibit E to Bell Dep.). The Indianapolis Photo was displayed on the C&M website, but the exact dates of publication are somewhat unclear. According to C&M, the photo appeared on its website from November 2001 to December 2001, and then January 1, 2002 to June 30, 2005. Yet, an e-mail sent from a West representative to Bell indicates that the photo was added to the C&M home page on or about August 24, 2000. (Exhibits E and G to Bell Dep.).

         Bell and C&M never executed anything in writing pertaining to ownership rights of the Indianapolis Photo. (Bell Dep. 97:13-22; Second Bell Dec. ¶ 18). Bell claims that he was not employed by C&M to take photographs, and that he was never compensated by C&M for taking photographs. (Second Bell Dec. ¶ 16). C&M did not pay Bell for its use of the Indianapolis Photo. (Id. ¶¶ 25, 28). C&M has never made any claim that any of the photographs taken by Bell are owned by the law firm. (Id. ¶ 17).

         Bell first published the Indianapolis Photo on August 29, 2000 on Webshots. (Second Bell Dec. ¶ 4). In 2011, he published the picture on his website, www.richbellphotos.com. (Id. ¶ 5). Through these websites, he has sold a digital download version of the Indianapolis Photo for $200.00. (Id. ¶ 6). He currently sells the photo on the latter page. (Id.; see Filing No. 38-2, Sales Records). Bell registered the Indianapolis Photo with the U.S. Copyright Office on August 4, 2011. (Second Bell Dec. ¶ 7; Filing No. 38-3, Certificate of Registration).

         In May 2015, Bell discovered, via Google Images, that Maloney had published the Indianapolis Photo on his website in 2013. (Second Bell Dec. ¶¶ 8, 14). Specifically, the Indianapolis Photo appeared at http://www.maloneyforensics.com/Indianapolis/March4-6, 2014.html. (Id. ¶ 13). Maloney did not have permission to use the picture. (Id. ¶ 11).

         II. Legal Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering Bell's motion, the court considers the facts in the light most favorable to Maloney; when considering Maloney's motion, the facts are considered in the light most favorable to Bell. First State Bank v. Ohio Cas. Ins. Co., 555 F.3d 564, 567 (7th Cir. 2009).

         III. ...


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