United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
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.
court holds that there is a genuine dispute of material fact
as to the ownership of the copyright. Therefore, both motions
must be DENIED.
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.).
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
(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.” (Exhibit E to Bell Dep.).
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).
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
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).
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
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
2014.html. (Id. ¶ 13). Maloney did not
have permission to use the picture. (Id. ¶ 11).
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).