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District judge dismisses attorney’s copyright infringement claim on photo

March 9, 2018

A retired attorney with an extensive history of filing copyright infringement complaints related to a photo of the Indianapolis skyline can no longer pursue one of those complaints after the Indiana Southern District Court granted his defendant’s motion for judgment on the pleadings on Friday.

After taking a photo of the Indianapolis skyline in 2000, Richard Bell, a retired McCordsville attorney, discovered in August 2016 the photo was being used on the Indiana University Medical School’s pediatric residency website. Bell initially filed a copyright infringement and unfair competition claim against IU, but later amended the complaint to name medical school dean Jay Hess as the sole defendant.

Bell’s second amended complaint alleged Hess – whom he claimed to be suing in his individual, not official, capacity – had supervisory control over the website and “permitted employees of the Medical School and residency program to download the Indianapolis Photo from the internet without permission from Bell and then copy it” onto the website. Hess, however, claimed the case was brought against him in his official capacity as the medical school dean, thus entitling him to 11th Amendment sovereign immunity.

In response, Bell argued the doctrine of Ex parte Young, 209 U.S. 123 (1908), exempted Hess from sovereign immunity because there was still an ongoing violation of federal law. Though IU removed the disputed photo from the pediatrics webpage, Bell was still able to locate an archived version of the webpage that included the photo via web.archive.org, an online internet archives service.

But in a Friday opinion in Richard N. Bell v. Jay L. Hess, 1:16-cv-02463, Judge Tanya Walton Pratt noted the archived webpage was not part of the pleadings and, thus, could not be considered. Even if it were part of the pleadings, Pratt said neither IU nor Hess have control over web.archive.org, so they could not be held liable for a continuing violation of federal law.

Pratt also agreed that despite Bell’s repeated claims that he was suing Hess in his individual capacity, the complaint was one against the dean in his individual capacity. Were he not the medical school dean, Hess would not be facing the complaint, the judge said.

“Bell’s frequent use of the label ‘individually’ does not change the substance of his allegations that Hess’ conduct was undertaken in his official capacity as a dean of Indiana University,” Pratt wrote. “It is clear from the pleadings that Bell is seeking to impose liability against Indiana University, and his amendments to his original complaint were an attempt to circumvent Eleventh Amendment sovereign immunity.”

Pratt dismissed Bell’s complaint with prejudice.

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