Richard N. Bell of McCordsville, Indiana filed a copyright infringement suit in the Southern District of Indiana alleging that David N. Powell, the executive director of the Indiana Prosecuting Attorneys Council (“IPAC”) infringed the “Indianapolis Nighttime Photo” of Richard Bell by using the photograph in a Spring Conference Brochure for the Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”). Last week the Southern District of Indiana District Judge Tanya Walton Pratt denied Bell’s Motion for Summary Judgment and granted Powell’s and MRNISO’s Cross-Motions for Summary Judgment in the case.
(“MRNISO”). Last week the Southern District of Indiana District Judge Tanya Walton Pratt denied Bell’s Motion for Summary Judgment and granted Powell’s and MRNISO’s Cross-Motions for Summary Judgment in the case.
Bell is an attorney and photographer who has become known for his numerous copyright infringement cases over the Indianapolis Nighttime Photo taken in March 2000. Although it was first published online on August 29, 2000, Bell waited to register the photo with the United States Copyright Office until August 4, 2011. Bell has a digitally downloadable version of the photograph on his website for $200.00.
MRNISO is an Indiana professional network to reduce sexual assault, provide education on sexual assault, and to assist victims, survivors, and families of sexual assault. In 2015, the annual membership fee was $25.00 and members could attend MRNISO conferences for free, cross-train with other sexual assault intervention professionals, received a newsletter, and continuing education credits. MRNISO’s total membership for 2015 was 76 individuals.
The organization held its annual, one-day conference in Indianapolis on April 24, 2015. MRNISO published a brochure to notify its members of the conference in which any monies received are used in furtherance of its mission, the organization does not profit from this conference. The brochure contained the Indianapolis Nighttime Photo alongside two other pictures to inform members and non-members of the location of the conference. The brochure was published on MRNISO’s website containing the photo without obtaining a license for such and failing to disclose the source of the photo.
IPAC is a state judicial branch agency consisting of Indiana’s prosecutors. IPAC maintains a website, which Powell does not directly own, maintain, or edit. Powell has assigned the maintenance and development of the website to IPAC employees and he does not have any affiliation with MRNISO. Advertising trainings via the IPAC website can be requested by sending an email to “email@example.com”, which MRNISO did to advertise its 2015 conference. Using Google Images, Bell discovered the use of his photo on the brochure on IPAC’s website in April 2016. He notified both parties of the alleged infringement, but both parties refused to pay for the use, so Bell filed suit on September 18, 2016. Bell later amended his Complaint to clarify that he was not suing Powell as an employee of the state of Indiana, but individually because he had final authority over the content of the IPAC website.
Powell asserted that he was protected against the suit using Eleventh Amendment immunity. The Court found that Bell’s claim against Powell was a claim against him as the director of a state agency and thus the claim was barred by Eleventh Amendment immunity. MRNISO asserted that they were entitled to summary judgment based off the fair use doctrine. The photo retained some of its original character, but being added to the larger brochure and edited to promote the conference for sexual assault, changed the purpose and character of the photo. The Court found that the purpose of the photo on the brochure was to provide a factual depiction of Indianapolis, and not to sell copies of the photograph and using the other factors for fair use, found in MRNISO’s favor.
Practice Tip: The Copyright Act, 17 U.S.C. § 107, provides four non-exclusive factors for determining the applicability of the fair use doctrine:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.