Ruling casts doubt on lawyer’s Indy photo copyright

The copyright on a photo of the Indianapolis skyline that a lawyer has used to sue hundreds of people might not be valid, a judge ruled, because the photo was first used on a website of the law firm where the attorney was once employed.

District Judge Richard Young denied summary judgment motions from both parties in McCordsville lawyer Richard Bell’s copyright-infringement suit against forensic consultant Michael Maloney in the U.S. District Court for the Southern District of Indiana. In doing so, Young ruled, “there is a genuine dispute of material fact as to whether Bell owns the copyright to the Indianapolis Photo.”

In court filings, Maloney acknowledges that his firm, Maloney Forensics, posted the photo online and infringed on the copyright — if it is legitimate. Maloney argues it isn’t. Maloney says Bell took the photo as a “work made for hire” by his former firm, Cohen & Malad P.C., which published the photo on a firm website the same year the photo was taken. Bell worked for Cohen & Malad from 1984 until 2009, and he took the photo in question in 2000.

Bell, who obtained the copyright on the photo in question in 2011 and subsequently began suing people who published the photo on websites, acknowledged in a 2014 interview that defendants he’s sued labeled him a copyright troll and a “digital extortionist.”
 
Bell claims in court filings he used his own camera and was not acting on behalf of the firm when he took the photo of the downtown skyline from the St. Clair Avenue bridge overlooking the canal. He says Cohen & Malad has made no claim of ownership of the photo. Cohen & Malad spokeswoman Jaime Lira said the firm had no comment on the order.

But evidence produced during this litigation shows Bell had email exchanges with a web developer who was working for Cohen & Malad while Bell was the firm contact for the web developer in 2000. According to a timeline in Young’s order, photos for the website were discussed in emails between Bell and the web developer before Bell took the photo in March 2000. After Cohen & Malad’s partners voted to use the photo on the firm’s website, Bell submitted it to the web developer in August 2000, and it was added to the firm’s website that same month.

“This chain of events suggests that Bell’s decision to take the photo naturally followed from the discussions he had with (web developer) West (Publishing) personnel relating to development of the C&M website. This inference is also supported by the fact that Bell allowed C&M to use the photo for free. But if serving C&M was Bell’s purpose, it is unclear why he delayed submitting the photo to West for five months. One might conclude that it simply took time for the C&M partners to approve the photo, but there is scant evidence in the record on that topic. A reasonable jury considering this evidence could find that Bell’s taking of the photo was actuated, at least in part, by a purpose to serve C&M.”

But Young wrote that the competing inferences drawn by both parties in the suit make it impossible for the court to rule in summary fashion on the validity of Bell’s copyright. “This means the court cannot conclude whether Bell owns the copyright, which is required to establish infringement. … These issues must be resolved at trial.”

The case is Richard N. Bell v. Michael Maloney, 1:16-cv-1193.