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Attorney sues hundreds over use of city skyline picture

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Indiana Lawyer Focus

They say a picture is worth a thousand words. Attorney Richard Bell says his picture of the Indianapolis skyline is worth $1,500 or so if you’ve posted it on your website without first paying him to license it.

Bell said he’s found about 300 people using the photo he took in 2000. According to court documents, the photo was registered with the U.S. Copyright Office in 2011, after which Bell’s demand letters and lawsuits began to fly. Bell said most defendants settled, with fewer than 10 defendants scheduled to go to court Sept. 29 in the U.S. District Court for the Southern District of Indiana.

Defendants call Bell a copyright troll or worse. His litigation has survived dismissal motions, and this month Judge Tanya Walton Pratt denied a counterclaim that Bell abused the legal process in one of three cases still pending.
 

richbell-1-15col.jpg Attorney and photographer Richard Bell poses by the Central Canal in downtown Indianapolis, near where he snapped a photo he says hundreds of people have posted online in violation of copyright laws. He acknowledges defendants have called him a copyright troll and worse. (IL Photo/ Eric Learned)

“The essence of it is they called me a digital extortionist,” Bell said, but he claims the law is on his side. His lawsuits allege not just copyright infringement and unfair competition, but also theft.

“Defendants have realized and continue to realize profits and other benefits rightfully belonging to Plaintiff,” Bell asserts in his suits that seek treble damages and attorney fees available under 17 U.S.C. §§ 504 and 505.

“There are members of the public that think that they can steal photographs off a website and use it, and it’s theft, just plain and simple,” he said. “If you walked onto my property and took down my tree or if you stole my car … it’s essentially the same thing.”

Bell said he’s licensed the photo to several people for a fee of $200 through the website www.richbellphotos.com. He justifies his litigation and tactics by invoking the 1970s Fram Oil Filter TV commercial – “You can pay me now, or pay me later.”

As was implied in those commercials, later costs more. “I ask (defendants) to take it down and compensate me,” Bell said, acknowledging his price often rises with the passage of time.

More than 100 defendants resolved before cases were filed, about 75 defendants settled after suits were filed, a few cases were dismissed for jurisdictional issues and just a handful of defendants remain, he said.

“You can see I take this kind of seriously,” said Bell, who claims he’s retired and just protecting his proprietary rights to the copyrighted image.

Fighting back

Jessica Wilch is no lawyer, but she said she’s gotten an education through her involvement in one of Bell’s cases.

“I’m a layperson, but if you look at the actions going on here, I feel there’s something that’s wrong in the legal system, and he’s taking advantage of it,” Wilch said.

In her work as a Web designer, Wilch is diligent about checking out images before using them. “I always check to see the images I use are royalty-free and fair use.”

So when she was designing a website for real estate agent Shanna Cheatham and seeking a stock photo for an Indianapolis community information page, she did what Web designers often do. She checked Google images for a generic image of the city skyline. Bell’s photo was among those that most prominently popped up, so she checked it out.

“There was no copyright, no trademark” information, Wilch said. “I even checked the metadata. … That particular image, the metadata is stripped out.” So she used it.

Wilch said a year or two went by before Cheatham received a letter from Bell along with a copy of a civil suit naming her. Wilch said Cheatham told her that Bell was demanding $200 by the end of the business day. The price later rose to $500, Wilch said.


skyline-photo-15col.jpg This photo of the Indianapolis skyline taken in 2000 was copyrighted years later by attorney and photographer Richard Bell, who has brought federal copyright lawsuits against hundreds of defendants who posted the image on their websites without first obtaining a license to use the photo. (Photo submitted)

Wilch, who isn’t a defendant but may be a defense witness, said that after her client received Bell’s notice, she called Bell. She informed him that as a courtesy, the image would be removed from the website, but she also asked for proof of ownership of the photo. Wilch said she became skeptical after Bell said the photo’s presence on his website, which she said she’d never seen, was proof enough.

“We’ve been contesting this whole thing, and Mr. Bell has not produced any document that shows he owns the photograph,” she said.

Carmel attorney John W. Nelson is defending Cheatham and other remaining defendants in Richard N. Bell v. Cameron Taylor, et al., 1:11-CV-0766. Nelson declined to comment on the pending case.

Outdated laws?

Wilch believes copyright laws haven’t kept pace with the digital age. “The Internet has opened up a Pandora’s box when it comes to imaging,” she said. “If you take a picture on your phone and put it on the Web, who owns it? Who can use it?”

Bell said he’s using the legal remedies available to him and disregards those who argue copyright laws are lagging.

“Every single website that you create or anybody creates has an agreement with your website host that says you’re not allowed to put anything on that website that’s not your property,” he said.

But in cases where actual ownership and copyright status of digital media is not readily clear, the bar for litigants can be low.
 

overhauser-paul-mug Overhauser

Paul Overhauser is an attorney with offices in Greenfield and Indianapolis who writes the Indiana Intellectual Property Law News blog. He’s written about Bell’s cases and believes current copyright law may enable trolling.

“I think the (Bell) case demonstrates how copyright law needs to be updated,” Overhauser said. “What would be most helpful would be a requirement for a copyright owner to require them to identify themselves and include a copyright notice on the image.”

For defendants in such cases, the cost of settling is typically less than the cost of hiring an attorney, so many simply pay up even when they have a legitimate defense, Overhauser said. And because many defendants are businesses, their liability insurance policies often include clauses covering advertising injury that will pay that claim.

“The real hammer (Bell) has in these cases is that in the 7th Circuit, the prevailing party in a copyright infringement case has the ability to recover attorney’s fees,” Overhauser said. But he said he was surprised that the cases also asserted unfair competition and theft, which are pre-empted by the copyright statute.

Overhauser believes pleading those could damage Bell’s ability to recoup fees, even if the court rules in his favor on the copyright claim. If he doesn’t prevail on those others, Overhauser said, “that may discourage a court from awarding Mr. Bell attorney fees.”

Playing hardball

Defendants who infringe on copyrights online have no excuses, Bell said, though they offer a multitude of them. “I simply don’t buy the argument from anybody that when they put that on their website, that doesn’t fall into the category of willfully stealing.”

He acknowledges many of those who settled were loath to do so. “To say they really wanted to pay me probably would be stretching it,” he said. “A responsible lawyer and their clients, they obviously know it’s going to be far more expensive to try it.”

Pratt didn’t dismiss Bell v. Taylor in March when defendants argued abuse of process. But in dismissing a case with prejudice on jurisdictional grounds, Pratt wrote that Bell failed to state a claim. “Bell has alleged, but has not shown, that he is entitled to relief. His Complaint contains formulaic labels and conclusions, but not facts.”

Meanwhile, Wilch questions Bell’s tactics. She said after she began to ask questions about the original photo, Bell grilled her in a deposition lasting about nine hours. “People are settling because, in my opinion, there’s an abuse of power that’s intimidating to people,” Wilch said.

“This is awful, and it’s happening to people all over the country,” she said.•

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  • absurd lawsuit
    I understand the points projected by all. The fact is, there are millions of images in the Google images catalog. There is no way to know if they are trade marked or open source. The purpose of the images vary greatly, and a picture of a skyline could have ended up on this website simply because Mr Bell tagged the image on HIS website. While I firmly believe he did this knowing his intentions, the law is the law!
  • People like her vote...
    You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?
  • Copyright
    Why would any photographer put a photo on Google or an social network and expect to get paid? If it was so valuable you would have tried to sell it in a photograph site or had his own web site.Indy is not my first choice for photo art.Someone pointed out he has a divorce to pay for. he has had trouble with conflict of interest legally.not a nice guy.Most who post photos to google and other websites put a copyright mark so you can not copy the photo if it is for sale ,they also post their name and how to aquire the photo. Only in Indiana .who care about a lucky shot on your point and shoot....
    • Is It Really Worth It?
      It's not a picture of the Chicago skyline. So who cares?

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    1. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

    2. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

    3. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

    4. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

    5. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

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