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Bell v. Powell

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

October 11, 2018

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

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE.

         This matter is before the Court on the parties' cross-motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56. On April 9, 2018, Defendant Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”) and Defendant David N. Powell (“Powell”), each filed a Motion for Summary Judgment (Filing No. 70, Filing No. 73, respectively). That same day, Plaintiff Richard N. Bell (“Bell”) filed Plaintiff's Motion for Summary Judgment for Copyright Infringement (Filing No. 76). Bell initiated this action, seeking damages and declaratory and injunctive relief under copyright laws, alleging the unauthorized use of his nighttime photograph of the Indianapolis skyline. For the following reasons, the Court grants Powell's and MRNISO's Motions for Summary Judgment and denies Bell's Motion for Summary Judgment.

         I. BACKGROUND

         Bell is an attorney and photographer. This litigation centers on a photograph taken by Bell in March 2000 of the Indianapolis, Indiana skyline at nighttime (“Indianapolis Nighttime Photo”). After taking the Indianapolis Nighttime Photo, Bell published it on the internet for the first time on August 29, 2000, by uploading it to a Webshots account. It was later published on Bell's website at www.richbellphotos.com in April 2011. 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. He 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. Bell sells a digital download version of the Indianapolis Nighttime Photo for $200.00 on his website (Filing No. 77-1 at 1-2).

         MRNISO is an Indiana non-profit professional network. Its goal is to provide professional networking in order to reduce incidents of sexual assault, provide education on various topics on sexual assault, and to provide support for victims, survivors, and families of sexual assault. MRNISO accepts membership dues from professionals representing various disciplines involved in sex offender intervention to support its mission. The annual membership fee in 2015 was $25.00. MRNISO members could attend MRNISO conferences for free, receive cross-training and networking opportunities with other sexual assault intervention professionals, subscriptions to the MRNISO newsletter, and continuing education credits. In 2015, MRNISO's total membership was 76 individuals (Filing No. 82 at 1-2).

         MRNISO holds an annual, one-day conference in Indianapolis where presenters discuss issues of sexual assault intervention. MRNISO does not profit from its annual conference. Any monies received by MRNISO are used in furtherance of its mission. The board of directors and any other interest holders in MRNISO are unpaid and receive no income. Id. at 2.

         On April 24, 2015, MRNISO held its annual conference in downtown Indianapolis at the Indiana Historical Society. To notify its members of the 2015 Spring Conference, MRNISO created a brochure. Id. The brochure included a copy of the Indianapolis Nighttime Photo alongside two other pictures and text (Filing No. 77-7). The only purpose of creating the 2015 Spring MRNISO Conference brochure was to inform members and non-members of the time, date, and location of the conference. MRNISO did not profit from the use of its 2015 Spring MRNISO Conference brochure. MRNISO has never sold or offered to sell its 2015 Spring MRNISO Conference brochure, and it has never sold any copies of the Indianapolis Nighttime Photo, which was embedded in the brochure (Filing No. 82 at 3).

         In 2015, MRNISO's website published the conference brochure with the Indianapolis Nighttime Photo without obtaining a license or necessary authorization from Bell to use the photograph. MRNISO failed to disclose the source of the Indianapolis Nighttime Photo or confer credit to Bell (Filing No. 77-1 at 3).

         Powell is the executive director of the Indiana Prosecuting Attorneys Council (“IPAC”) located in Indianapolis, Indiana. IPAC is a state judicial branch agency established by Indiana statute, consisting of Indiana's prosecutors. IPAC maintains a website at http://www.in.gov/ipac. Powell does not directly own, maintain, or edit IPAC's website or the content uploaded to IPAC's website. As the executive director of IPAC, Powell has assigned the maintenance and development of the website to other IPAC employees. Powell does not have any interest in or affiliation with MRNISO. He has no authority or control over MRNISO in any way (Filing No. 74-1 at 1-2).

         IPAC's website informs viewers that they are invited to send posts to it: “If you would like to post a training on this site, please send your request to: cosmith1@ipac.in.gov.” (Filing No. 77-1 at 3; Filing No. 77-6.) MRNISO asked IPAC to advertise its 2015 spring conference on IPAC's website. A link was created on IPAC's website to MRNISO's 2015 Spring Conference brochure (Filing No. 74-1 at 2).

         Powell did not personally download the Indianapolis Nighttime Photo from Bell's website or any other website. Powell did not personally access Bell's website or the Indianapolis Nighttime Photo. He did not directly facilitate MRNISO's involvement with IPAC or ever view a copy of MRNISO's brochure. Powell had no personal knowledge that the Indianapolis Nighttime Photo was used on MRNISO's brochure or on its website. He did not personally upload or direct anyone to upload the 2015 MRNISO Spring Conference brochure to IPAC's website. He did not approve copying the MRNISO brochure, and he did not approve or direct anyone to download or copy any content from the brochure while it was available on IPAC's website. He also did not induce anyone to use the Indianapolis Nighttime Photo. Powell and IPAC did not profit from MRNISO's brochure being displayed on IPAC's website. Id. at 2-3.

         In April 2016, Bell discovered through the computer program “Google Images” that the Indianapolis Nighttime Photo was being used without his permission on the MRNISO conference brochure on IPAC's website at http://www.in.gov/ipac (Filing No. 77-1 at 3; Filing No. 77-8; Filing No. 77-9). The webpage included a link to “Learn More, ” which linked to a PDF document of the MRNISO brochure with the Indianapolis Nighttime Photo. By clicking on “Learn More, ” individuals automatically downloaded the brochure to their computers as a PDF file (Filing No. 77-1 at 3). Bell notified IPAC and the State of Indiana as well as MRNISO of the unauthorized use of the Indianapolis Nighttime Photo and demanded payment for the use. However, MRNISO and Powell refused to pay for the use of the Indianapolis Nighttime Photo. Id. at 4.

         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 (Filing No. 1). Powell filed a Motion to Dismiss, which was granted, and Bell filed an Amended Complaint with a claim for copyright infringement against Powell and MRNISO (Filing No. 40). In his Amended Complaint, Bell asserted that Powell “is being sued individually and not as an employee of the state of Indiana.” Id. at 3, ¶ 10. Each of the parties have filed individual motions seeking summary judgment pursuant to Federal Rule of Civil Procedure 56.

         II. SUMMARY ...


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