Copyright Infringement

August 15, 2018

Indiana Copyright Litigation: Indiana Artist Files Copyright Infringement Case Over Unauthorized Derivative Works

Indianapolis, Indiana – Attorneys for Plaintiff, Michel Keck of Jefferson Township, Owen County, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, John Mark Lawrence d/b/a Mark Lawrence Art Gallery of Alpharetta, Georgia, and DOES 1 through 25 infringed numerous pieces of artwork. Plaintiff is seeking judgment, actual damages, statutory damages, cost of litigation, and reasonable attorney’s fees.

Keck is a successful abstract and mixed media artist. She opened an online art gallery and her own fine art publishing company in 2006. Over 1,500 of her original paintings had sold by the end of 2006 to art collectors throughout the world. Keck has registered 22 original paintings (the “Works”) with the United States Copyright Office.

Defendant Lawrence gave an interview in 2009 stating that he creates his art by digitally manipulating existing images using Photoshop and other such computer programs. In April 2014, Keck was approached by an online distributor, Framed Canvas Art, and was given Lawrence’s contact information as a reference. In response to Keck’s email seeking information about the distributor, Lawrence stated, “I just took a look at your art – wow! You have a new fan.” Over three years later in September 2017, Keck found numerous art pieces for sale attributed to Lawrence that appeared to be unauthorized derivatives of her Works. It looked as though Lawrence would take one of Keck’s Works and then mirror or rotate it before running it through a computerized filter (creating “Unauthorized Derivative Works”).

August 13, 2018

Indiana Copyright Litigation: Dr. Keith Bell Files Suit Against an Indiana Resident and USA Volleyball for Copyright and Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Keith F. Bell, Ph.D. of Texas filed suit in the Northern District of Indiana alleging that Defendants, Lloy Ball, of Angola, Indiana, and USA Volleyball of Colorado Springs, Colorado infringed his rights in Copyright Registration Number TX-0002-6726-44 titled “Winning Isn’t Normal” (the “Infringed Work”) and his rights in Trademark Registration Number 4630749. Plaintiff is seeking judgment awarding damages, actual damages, profits, statutory damages, attorneys’ fees, injunctive relief, pre-judgement, and post judgment interest.

The Infringed Work was first published in 1982 and registered with the U.S. Copyright Office in 1989. Dr. Bell continues to offer for sale and market his book and derivative works such as posters and t-shirts with a specific passage known as the “WIN Passage”. He has offered and continues to offer licenses to those that may wish to publish or utilize the WIN Passage. The word mark “WINNING ISN’T NORMAL” has also been registered with the United States Patent and Trademark Office with Registration No. 4630749 for printed matter.

Dr. Bell alleges that Defendant Ball posted a representation of the WIN Passage on his Twitter account on or about November 12, 2015. This post received at least 51 “retweets” and 201 “likes” from Ball’s over 2,000 followers. Dr. Bell also claims that Defendant USA Volleyball posted a representation of the WIN Passage on their Twitter account on or about November 20, 2015 that included a “retweet” of the post by Defendant Ball. This post received at least 30 “retweets” and over 7,000 “likes” from USA Volleyball’s over 123,000 followers. Cease and desist letters were sent to Ball and USA Volleyball on July 15, 2016 and April 21, 2017, respectively. Both Defendants removed their posts shortly after the letter was sent to Ball, automatically removing all retweets of the post. While the Defendants have acknowledged liability to the Plaintiff, they have not agreed to enter into a settlement agreement to protect the Plaintiff’s rights and compensate him for his injuries, leading to this suit for both copyright and trademark infringement.

August 9, 2018

Indiana Trademark Litigation: Overhauser Law Offices, LLC Represent the Prevailing Parties Over Indiana-Based Vera Bradley

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, Vera Bradley Designs, Inc., of Roanoke, Indiana filed suit in the Northern District of Indiana alleging that Defendant, Austin Devin 2 Denny Boys, LLC, infringed multiple trademarks of the Plaintiff. Overhauser Law Offices, LLC represented the Defendant Austin Devin 2 Denny Boys LLC and Darlene Nicholas, who filed a Motion to Dismiss for improper venue and prevailed on July 30, 2018.

Plaintiff currently holds more than 900 copyright registrations, 35 federal trademark registrations, and has 17 pending federal trademark applications. The Plaintiff alleged in its complaint that the Defendants operate eBay accounts that they use to sell counterfeit Vera Bradley items and these acts infringe Vera Bradley’s trademarks and copyrights. All Defendants were sent cease and desist letters on behalf of the Plaintiff via counsel on July 26, 2017. On August 1, 2017, all Defendants party to the Motion to Dismiss responded through counsel and agreed to stop selling the counterfeit items, however, the Plaintiff alleged they did not cease their activities and filed suit.

The Defendants moved to dismiss Vera Bradley’s Complaint and claimed that because a substantial part of the events leading to the Plaintiff’s claims did not occur in the Northern District of Indiana, venue was improper. Further, Defendant Nicholas, claimed that the Court did not have personal jurisdiction over her. The Plaintiff countered that there were five specific instances in which the counterfeit merchandise was purchased by its employees within the Northern District of Indiana from the Defendants. They also claimed that venue was proper because they suffered harm in the District. As to Defendant Nicholas, the Court held that the Plaintiff did not give any persuasive argument as to how the Northern or Southern District Courts of Indiana could have general or specific personal jurisdiction over her in this case as she resides in Florida. Therefore, the Court was unable to transfer the case to the Southern District of Indiana, which may have been a proper venue for the other Defendants involved.

August 7, 2018

Indiana Copyright Litigation: Attorney Bell Strikes Again Suing The Association for Behavior Analysis, Inc. for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, The Association for Behavior Analysis, Inc., infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees, and any other relief as is just and proper.

Bell has sued many in Indiana federal courts asserting copyright infringement on his own behalf. See:

In this case, Defendant created a website for their business to promote an Indianapolis convention [http://hoosieraba.com/category/Indianapolis]. Plaintiff alleges Defendant published the Indianapolis Photo on that site without his permission. Bell has fully controlled his photograph from 2000 and registered it with the US Copyright Office in 2011. He discovered this alleged infringement of his photo in May 2018 with the use dating back to 2014. The Plaintiff not only alleges copyright infringement, but also vicarious liability for each copy of his photograph downloaded by third-parties from the Defendant’s website.

August 6, 2018

Indiana Copyright Litigation: Bell Sues Indiana Pool Table Moving Company for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana –Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Harold Fischer, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees and other relief deemed just and proper.

Bell is notorious for filing many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. He has published or licensed the Indianapolis Photo in compliance with copyright laws since March 2000. The photograph was first published online on August 29, 2000 by Bell on his Web shots account. Almost eleven years later, Bell registered the photograph with the US Copyright Office.

Defendant, Fischer, created a website for his Indianapolis-based business at http://pooltablemoving.com/. It is alleged that he committed copyright infringement by including the Indianapolis Photo on his website from 2016 to 2018 without properly licensing from Bell. The Plaintiff also claims that Fischer is vicariously liable for each downloaded copy of the Indianapolis Photo by any third-party user from the business website.

July 31, 2018

Texas Copyright Litigation: Indiana Photographer Sues Texas Company for Unauthorized Use of Photograph

By Overhauser Law Offices, LLC

Houston, Texas – Attorneys for Plaintiff, Larry G. Philpot of Indiana, filed suit in the Southern District of Texas alleging that Defendant, RCC Holdings, LLC of Houston, Texas, infringed the freelance photographer’s concert photograph of Ted Nugent. Plaintiff is seeking permanent injunctive relief, actual damages, statutory damages, prejudgment interest, attorney’s fees, and other relief to which he is entitled.

Philpot has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. Having been unsuccessful in defending against motions to dismiss for lack of personal jurisdiction in those cases, he is now suing with the help of legal counsel where the defendants are each located. See:

In this case, Philpot, took a photograph of Ted Nugent on July 31, 2013. On August 15, 2013, Philpot registered the work with the United States Copyright Office under Certificate Number VAu 1-164-624. Almost one month later, Philpot displayed the photograph on the Wikimedia website. Philpot offered the use of this photograph under a Creative Commons license, which allows members of the public to use the photo as long as Philpot is given proper credit among other requirements.

July 30, 2018

Indiana Copyright Litigation

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Corlinea, LLC of Chandler, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Drostes Jewelry Shoppe Inc. (“Droste”) of Evansville, Indiana, and Shah Diamonds, Inc., D/B/A Shah Luxury (“Shah”) of New York, New York, infringed rights in United States Copyright Registration No. VAu 1-301-361 the “HEARTY LOVE” design and United States Copyright Registration No. VAu 2-093-049, the “HEARTLINES LOVE PENDANT” design. Plaintiff is seeking an award for damages, attorneys’ fees and costs, pre-judgment and post-judgment interest, and other relief as determined proper by the Court.

Corlinea’s principal, Sheryl Lutz-Brown, first began designing the works in question in 2016. Her concept was to find a unique way to incorporate the word “love,” and subsequently other words, into a heart shape with a continuous line. Corlinea is the owner by assignment of both of the copyright registrations in question here and has all rights, title, and interest in all causes of action for infringement.

In November 2016, Sheryl met with Droste concerning her new design to help guide her to a reputable manufacturer for her jewelry. After meeting in person, Sheryl provided a .eps file of her design to Droste to be sent to the manufacturer for a quote. The original quote for the CAD design and making of the first piece in Sterling Silver was $300.00, which Sheryl paid the following day. Over the next several months, Sheryl created at least five other designs and worked with Droste to fine tune each of them and have the CAD drawings and prototypes developed. While Sheryl had already paid $9,714.53 to Droste and had another $14,000.00 ordered, Droste refused to supply an invoice for Corlinea.

July 16, 2018

Indiana Copyright Litigation: Lafayette Based Company Sues California College for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, National Federation of Professional Trainers, Inc. (“NFPT”) of Lafayette, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Carrington College, Inc. (“Carrington”) of Sacramento, California, infringed its rights in United States Copyright Registration No. TX 8-515-798 (“NFPT 0241 Exam”). Plaintiff further alleges misappropriation of trade secrets, breach of contract, and fraud. Plaintiff is seeking damages, profits received from unauthorized copying and distribution of the copyrighted work, attorney’s fees, costs, and injunctive relief.

NFPT creates and administers examinations for the certification of personal trainers. Their certification programs have been accredited by the National Commission for Certifying Agencies since 2005. Carrington has utilized NFPT’s examinations and educational materials as a part of its Physical Therapy Technology Program. At the end of the course, students were able to sit for the NFPT certification exam for the opportunity to become a certified personal trainer upon obtaining a “passing” score.

Carrington administered an NFPT examination December 10, 2015 via their proctor, Mr. Phillip Schauer (“Schauer”). As proctor, Schauer had to sign a confidential disclosure agreement, which included maintaining the confidentiality of the exams and not duplicating any of the testing materials. The December 10, 2015 exam produced extremely abnormal results for the students’ test scores. Of the twenty-six candidates, fifteen had identical or similar response strings while the remaining candidates response strings differed by a maximum of four responses out of 120. All of the candidates obtained a “passing” score. Due to the abnormalities in the results, NFPT voided the results and required all candidates to retake the examination with new questions on August 26, 2016. Only six candidates chose to retake the exam and of those, only two obtained a passing score.

July 12, 2018

Indiana Copyright Litigation: Indiana Company Sued for Copyright Infringement for Unauthorized Reproduction and Use of Photograph Online

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, FOTOHAUS, LLC (“Fotohaus”) of Tallahassee, Florida filed suit in the Southern District of Indiana alleging that Defendant, OFS BRANDS, INC (“OFS”) of Huntingburg, Indiana infringed its rights in United States Copyright Registration No. VA 1-832-736 photograph titled “Light Collector” (“Photograph”). Plaintiff is seeking statutory damages, actual damages, Plaintiff’s costs, and attorneys’ fees.

The Photograph in question was first captured by Daniel Foster, Manager of Fotohaus, in Shanghai, China on July 1, 2010. Foster posted the Photograph to his Flickr account on July 13, 2010 and later registered the Photograph with the United States Copyright Office on July 17, 2012. Fotohaus was assigned the copyright to the Photograph on March 8, 2017. On or about June 2, 2016, OFS copied the Photograph and posted it to their commercial website accompanying a post advertising the design of a product they offered. Defendant also posted a copy of the Photograph on their Twitter page on June 6, 2016.

Fotohaus mailed their first letter identifying the infringement of the Photograph to OFS on September 5, 2017 demanding among other things that OFS remove the infringing material. At least ten communications between the Plaintiff and Defendant occurred between October 17, 2017 and February 19, 2018. The offending Twitter post was not removed by OFS until February 19, 2018. Plaintiff claims the Defendant not only violated their exclusive rights of reproduction and distribution, but the act of infringement was willful, intentional, and without regard to the rights of the Plaintiff. For this, Plaintiff is requesting a declaration that Defendant’s unauthorized conduct violated Plaintiff’s rights under the Federal Copyright Act, maximum allowable statutory damages, and actual damages.

June 14, 2018

Indiana Copyright Litigation: Illinois Photographer Sues Indiana Company Over Unauthorized Use of Photograph

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Plaintiff, Linda Matlow of Chicago, Illinois filed suit in the Southern District of Indiana alleging that Defendant, Rodgers Broadcasting Corp. of Richmond, Indiana, infringed its rights to the “Parr Photo” registered on December 7, 2011 with the U.S. Copyright Office, Registration Number VAu 1-085-861. Plaintiff is seeking actual and/or statutory damages, costs, attorney’s fees, an injunction, and any other relief as is just and proper.

Plaintiff’s Attorney, Bell, has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. Bell has been unsuccessful as a plaintiff in many of his own infringement cases and has been ordered to pay the Defendant’s fees as a result. See:

According to the complaint, the Plaintiff took the photograph in question in the 1980’s and proceeded to register the photograph with the U.S. Copyright Office in 2011. Plaintiff alleges that the Defendant infringed on her copyright when its subsidiary KMIX 106.9 published the photograph on their Twitter account in 2017.