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Retired attorney survives motion to dismiss copyright claim

February 26, 2018

A retired Indiana attorney has survived a motion to dismiss a copyright infringement claim against a fellow Indiana lawyer regarding a photo of the Indianapolis skyline, the most recent decision in a long line of copyright claims stemming from the disputed photo.  

When retired McCordsville attorney Richard Bell discovered his copyrighted photo of the nighttime Indianapolis skyline had been used on the Indiana Prosecuting Attorney Council’s website to promote the 2015 Midwest Regional Network for Intervention with Sex Offenders Spring Conference, Bell sued the regional network and IPAC executive director Dave Powell for copyright infringement and unfair competition in September 2016. Bell alleged Powell “individually approved the copying of the 2015 MRNISO Spring Conference containing the ‘Indianapolis Nighttime Photo’ on to the website…,” making him individually liable for the alleged copyright infringement.

Indiana Southern District Judge Tanya Walton Pratt initially dismissed Bell’s case against Powell, finding “(t)he factual basis that is pled is minimal and requires numerous inferences that are insufficient to support individual liability for Powell’s role as a state agency director.” Bell then filed an amended complaint with separate copyright infringement claims against Powell and MRNISO, arguing his claims were brought against Powell individually, not as a state employee.

Powell then filed a second motion to dismiss, again alleging there was no factual basis to support claims against him in his individual capacity.

“Powell asserts that individual liability cannot be premised on a theory of respondeat superior, but rather, any individual liability for copyright infringement must be based on his own personal involvement,” Pratt wrote in a Friday opinion. “Powell argues that Bell’s allegations are based on what a person with Powell’s title might have the ability to do rather than on what Powell actually personally did.”

However, the question on a motion to dismiss is whether the allegations, taken as true and in favor of the non-moving party — here, Bell — state a claim for relief, Pratt said. Under that “low bar,” Bell’s claims that Powell “is individually responsible for the content of the website” and “individually authorized the copying and republication of the Indianapolis Nighttime Photo” assert and personal and direct involvement by Powell, thus defeating his motion to dismiss.

But Pratt went on to write that “(w)hether the claim can survive summary judgment is a matter for another day.” Though the dispositive motions deadline in the case has passed, the judge extended the deadline by 30 days from Feb. 23 based on her belief that the case could be resolved by summary judgment. She also vacated the scheduled trial date and rescheduled the jury trial for Nov. 19.

Pratt’s decision in Richard N. Bell v. David N. Powell, et al., 1:16-cv-02491, is the most recent decision in a series of copyright infringement claims Bell has filed related to his photo of the downtown skyline. The attorney has brought hundreds of claims against defendants who allegedly used the photo without purchasing a license for it, some of whom have been members of the Indiana legal community.

Powell and the Indiana Attorney General's Office, which is representing Powell, declined to comment on Friday's ruling. 

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