Attorney/photographer denied new trial, ordered to pay $172K in Indy skyline photo suit

A lawyer and photographer who lost a federal copyright trial one year ago has also lost his bid for a new trial and instead has been ordered to pay more than $172,000 in fees.

Indiana Southern District Judge James Sweeney ruled against attorney/photographer Rich Bell in Bell v. Carmen Commercial Real Estate Services, 1:16-cv-01174.

Bell sued Indianapolis-based Carmen Commercial Real Estate in 2016 for alleged copyright infringement after the company used his 2000 photo of the Indianapolis skyline in a blog post. But a jury in September 2019 returned a verdict for the real estate company, answering “no” to the decisive question: “Do you find that by a preponderance of the evidence that Richard N. Bell authored the Indianapolis Skyline Photo, that he owns a copyright in it, and that he registered it with the Copyright Office?”

Bell then sought a new trial focusing on the issue of whether the photo — taken while he worked for Cohen & Malad P.C. and displayed in the Cohen & Malad office — was a work-for-hire. In a separate case, Bell v. Maloney, 1:16-cv-1193, Southern District Judge Richard Young granted summary judgment to Bell on the work-for-hire issue, finding the defendant lacked standing to raise that claim.

But in denying the motion for a new trial, Sweeney noted that neither Bell nor his co-counsel objected to the work-for-hire language in the jury instructions. He also rejected Bell’s contention that the work-for-hire claim was an affirmative defense subject to the pleading requirements of Rule 8(c).

Notably, Sweeney disagreed with the Maloney conclusion that the defendant lacked standing to assert a work-for-hire defense.

“The Seventh Circuit appears to be among those courts that ‘have precluded third parties from challenging a plaintiff’s ownership rights under the statute of frauds in Section 204’ (of the Copyright Act), yet have nevertheless ‘permitted those parties to challenge the validity of the underlying ownership transfer,’” Sweeney wrote, quoting Urbont v. Sony Music Entertainment, 831 F.3d 80 (2d Cr. 2016). He also cited to the 7th Circuit Court of Appeals’ decision in Billy-Bob Teeth v. Novelty, Inc., 329 F.3d 586, 592 (7th Cir. 2003), where the court “did not extend the limitation on third-party standing beyond statute-of-frauds challenges.”

“It therefore appears that third-party infringers have standing to challenge a plaintiff’s ownership under § 101 and § 201(b), in contrast to a transfer’s compliance with the statute of frauds under § 204. Other courts have reached he same conclusion” Sweeney wrote.

Finally, the judge ordered Bell to pay Carmen Commercial $172,173.06 in attorney fees and costs, rejecting his assertion that the attorney costs were excessive and instead questioning his motivation for filing suit.

“Bell has filed many lawsuits over this photograph,” the judge wrote. “Other judges have found indicia of improper motive: ‘Bell’s motivation for filing this action appears to be an attempt to extract quick, small settlements from many defendants instead of using the judicial process to protect his copyright against legitimate infringing actors.’ Bell v. Taylor, Case No. 1:13-cv-798-TWP-DKL, ECF No. 186 (S.D. Ind. Sept. 2, 2016) … .

“… Here,” he continued, “the record similarly reflects that Bell used the threat of litigation costs to extract quick settlements.”