Indianapolis, IN – Attorney and self-proclaimed professional photographer Richard N. Bell, suing on his own behalf, filed two separate complaints alleging copyright infringement and unfair competition under the Copyright Act and conversion under Indiana statutory law as a result of the unauthorized use of a photograph he had taken and which had been registered with the United States Copyright Office. Bell is seeking damages, injunctive relief and a declaratory judgment. Mr. Bell has been disciplined by the Indiana Supreme Court for violating the Rules of Professional Responsibility. (See Disciplinary Action here.)
In the first complaint, filed January 4, 2013, Bell named twenty-five separate Defendants: Greg Bayers, LLC; Leppart Associates; crazy-frankenstein.com; Hometown Rentals; Frank Kirchner; Brent Bythewood; Pixmule.com; InternMatch; Team Champion; Electraproducts; Alex Bruni; Mark Groff; Greatimes Family Fun Park; Peter Brzycki; Tom Kelly; Relociti.net; gerberbabycontest.net; MerchantCircle, Inc; Amber Russell; WSBT, Inc.; Delia Askew; Intercontinental Industries; The Friedman Foundation for Educational Choice; Linen Finder, Inc.; and Radio One of Indiana.
In the second complaint, filed January 8, 2013, Bell named the remaining forty-eight Defendants: Jerry Gordon; Demand Media, Inc.; Bryce Welker; Royal Corniche Travel Ltd.; VRBO.com, Inc.; Experience Credit Unions, LLC; Jaclothing.com; Glacier International; ABNHotels.com; 1&1 Internet, Inc.; Conde Nast Digital; Flixter, Inc.; Financing-USA.com; SodaHead, Inc.; NuMedia Marketing, Inc.; Jynell Berkshire; Tzvetelin Petrov; Los Pentecostales del Area de la Bahia; 10Best, Inc.; Keyes Outdoor Advertising; Zoom Communications Inc.; Christine Nevogt; Zarzar, Inc.; Hydro-Gear; Tam T. Dang; Lon Dunn; William McLaws, Trustee; Natl-electronic Residential Payment History Recording Agency; CVI; Constant Contact, Inc.; Charles Lantz; Schumacher Cargo Logistics; Eventbrite, Inc.; Celebrity Entertainment Corp.; Association of Equipment Manufacturers; Yardi Systems Inc.; DiamondIndyLimo.com; Marcelo Santos; National Rural Recruitment & Retention Network; Anbritt Stengele; Pinnacle Sports Equipment, Inc.; Marygrove College; RunAnyCity.com; Buzzle.com, Inc.; Charles Onuska; University of Indianapolis; and PersephoneMagazine.com.
The two complaints are similar, albeit not identical, with the exception of the named Defendants. Bell alleges that each Defendant, independent of each other Defendant, “created a website to promote and advertise its own business” and placed the Plaintiff’s copyrighted photo on each of the Defendants’ respective websites. It is alleged that no Defendant had obtained the right to publish the photo and each “recklessly and falsely represented to the world otherwise” and that as a result Defendants have “realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” The Plaintiff also alleges criminal misconduct under Indiana statutory law.
Plaintiff asserts that he has already suffered, and is continuing to suffer, irreparable injury as a result of the alleged infringements of his copyrighted photo. He is asking the court to declare that the Defendants’ conduct in using Plaintiff’s photo violates his rights under Indiana law and the Copyright Act and asks the court to enjoin further infringing uses of his photo. His prayer for restitution varies in each complaint. Among other remedies, he seeks treble damages under Indiana statutory authority. He also asks for an accounting of all gains, profits and advantages derived by Defendants as a result of the alleged infringement and for the maximum allowable statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys’ fees.
Practice Tip: The Plaintiff can expect several problems with this claim. Section 1 of both poorly proofread Complaints alleges the photo “was registered with the U.S. Copyright Office in 2102.” In the unlikely event the Plaintiff has travelled back in time 89 years to file this suit, this would bar the Copyright claims, because the Copyright Act requires a work to be registered before an infringement suit is filed. In the more likely case that this is a typo and the Plaintiff, who is acting as his own attorney, meant to refer to 2012, this raises the prospect of the Plaintiff being unable to recover his attorney’s fees. The Copyright Act only allows recovery of attorney’s fees if the work is registered before infringement commences. It is also interesting to note that both complaints attach the photo as “Exhibit A,” but neither has a copyright notice. Another issue will be that the claims include counts for “unfair competition” and “theft.” However, because the only act complained of is copyright infringement, these claims are pre-empted by the Copyright Act. Finally, many of the defendants are businesses who likely have a general business insurance policy. Most such policies would cover this copyright infringement claim. In short, the Plaintiff can expect an uphill battle with these suits.