Attorney-photographer wins another infringement claim, but not willfulness

Editor’s note: This story has been updated.

A notorious Indiana copyright litigator has once again secured judgment in his favor on a claim that a local business unlawfully used his photo of the Indianapolis skyline, though a federal judge determined the infringement was not willful.

Attorney-photographer Richard Bell sued Merchants Bank of Indiana after discovering in late 2017 that the bank was using a photo he had taken of the nighttime Indianapolis skyline on its website. The photo was registered with the United States Copyright Office, and neither the bank nor Sonar Studios Incorporated, the bank’s web developer, had obtained a license.

The photo was taken down the day after Bell notified the bank of the copyright, and it was also deleted from the website’s media library. Bell then filed an infringement suit, and both parties moved for summary judgment.

Indiana Southern District Judge James Patrick Hanlon ruled for Bell on the infringement issue, writing Monday that Bell proved ownership of the photo.

In an attempt to dispute Bell’s ownership clam, Merchants Bank pointed to a 2019 jury verdict in which Bell was found to not have a valid copyright for a contested photo of the Indianapolis skyline. That photo, though, was taken during the day, while the photo at issue here was taken at night.

Additionally, Hanlon wrote, “Merchants paid for the website, paid for the server that stored the Photo, controlled the content on the website, made changes to the website, and even used the Photo with original content. The Photo’s hyperlink was part of Merchants’ website with an address that included ‘merchantsbankofindiana.com.’ This conduct is sufficient to establish infringement.”

But in granting summary judgment to the bank on the issue of willfulness, Hanlon noted the bank employee who selected the photo from the online media library had no control over the photos stored in the library – here, the web developer had provided the image. Additionally, “there was nothing in the Photo itself, such as a watermark or copyright symbol, suggesting it was copyrighted material.”

But Bell pointed to the copyright watermark on the Merchants Bank webpage that featured the photo as evidence of willfulness. The bank employee, however, submitted a declaration that “[t]he purpose of the Merchants copyright language was to protect the website generally. Merchants did not intend to claim ownership of the Photo or the Image.”

Hanlon distinguished the instant case from Bell v. Fischer, 1:18-cv-1570 and Bell v. Patrick, 1:16-cv-1160, writing that unlike those cases, the defendant here designated evidence that its website copyright was not intended to claim ownership of the copyrighted photo.

“Considering the designated evidence in this case, the presence of the copyright statement at the bottom of the website page does not support the inference that Merchants knew that its conduct infringed or that it acted in reckless disregard of Mr. Bell’s rights,” Hanlon wrote in Richard N. Bell v. Merchants Bank of Indiana, 1:18-cv-56.

The parties were ordered to inform the court by June 11 whether a damages hearing will be required.

Merchants Bank is one of hundreds of individuals and entities Bell has sued over the years for alleged infringement of his photos.

An attorney for Merchants Bank declined to comment. Bell and his attorney, Maura Kennedy, did not immediately respond to requests for comment.