LAWYER LOSES APPEALS OVER INDY SKYLINE PHOTO

BY DAVID STAFFORD for INDIANA LAWYER

An Indianapolis lawyer who defendants call a copyright troll lost his appeals against three people who successfully defended against his suits over use of one of his photos.

Richard Bell owns the copyright to two Indianapolis skyline photos that are the subject of the suits – one a daytime picture and the other taken at night. He has sued hundreds of people for copyright infringement for allegedly using the copyrighted photos on websites without first paying him a $200 licensing fee.

Bell sued Cameron Taylor and his computer business Taylor Solutions; Fred O’Brien and his company Insurance Concepts; and Shanna Cheatham and her real estate site ShannaSells.com, alleging copyright infringement, unfair competition and theft. Judge Tanya Walton Pratt in August 2014 granted summary judgment in favor of the defendants, and the 7th Circuit Court of Appeals affirmed Friday.

Bell argued that summary judgment was improper because his affidavit and website price listing create a genuine dispute of material fact as to whether he suffered damages from the infringement. He contends that the District Court erred by making a credibility determination when it characterized Bell’s affidavit [stating the photos had a fair market value of $200] as an “unsupported assertion,” Judge Joel Flaum wrote for the panel.

“Bell does not aver in his affidavit that he has ever actually had a buyer willing to pay $200 for his photo. Instead, he states that he ‘believes that the price of $200 is fair and reasonable and represents the fair market value. …” Without additional evidence, Bell’s subjective belief as to the fair market value of his photo is not enough to prove damages,” Flaum wrote in affirming summary judgment for the O’Brien and Cheatham defendants.

Flaum wrote “Bell attempted to obfuscate the issue of damages by objecting to defendants’ motion to compel his sales records,” claiming they were irrelevant and confidential. “After the district court granted defendants’ motion to compel, Bell still did not produce any sales records; rather, he moved for a protective order, which the district court denied.”

The panel also held the District Court properly denied as overbroad Bell’s discovery demands that included 11 years of income tax records from O’Brien and Cheatham.

The 7th Circuit also affirmed the rulings in favor of the Taylor defendants. Bell wrongly complained that Taylor had used the daytime photo, and the District Court denied as untimely his motion to amend his complaint to correct that Taylor had used the nighttime photo.

“The district court found that Bell was not diligent in discovering his mistake regarding which photo Taylor had actually posted. During discovery in April 2013, Taylor sent Bell a copy of the nighttime photo that he had posted and stated in his interrogatory answers that he had never used the daytime photo. Thus, the district court found that Bell was on notice that Taylor had used the nighttime photo, not the daytime photo identified in the complaint,” Flaum wrote. “Yet Bell failed to act on this information until March 12, 2014, well after the July 15, 2013, deadline for amending pleadings had passed. Further, the court pointed out that Bell filed his motion to amend just four weeks prior to the dispositive motions deadlines and at the close of discovery. Thus, granting Bell’s motion would cause further delay and prejudice to defendants by affecting the summary judgment schedule and potentially creating a need to reopen discovery. For these reasons, the district court denied Bell’s motion to amend.”

Bell “contends that it was Taylor who delayed the proceedings by not being forthcoming about why he was denying Bell’s allegations. This argument fails because Taylor gave Bell adequate notice that he had not used the daytime photo and was not required to do more to help Bell correct his error,” the court wrote.

The panel also affirmed the District Court ruling dismissing a subsequent case Bell filed against Taylor based on res judicata, holding that such a ruling would have little practical effect. “We decline Bell’s suggestion that we should use the limited resources of the judiciary in this manner,” Flaum wrote.

The case is Richard Bell v. Cameron Taylor, et al.,15-2343, 15-3735, 15-3731.
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