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Lawyer’s Indy skyline photo on trial in infringement case

July 25, 2018

More than 18 years ago, an attorney with a photography hobby took a photo of the Indianapolis skyline that would later become the subject of dozens of copyright infringement lawsuits filed against defendants across the country.

The process is generally the same in each case: attorney Richard Bell sends a notice to the alleged infringer demanding they remove his photo of the downtown skyline, as seen from the canal, immediately and pay him actual damages of about $200 — the cost of obtaining his photo license. Even if the photo is removed, Bell asks the alleged infringers for payment. If they do not comply, he sues them in federal court.

Speaking during a bench trial on Tuesday, Bell said he has threatened to file roughly 200 copyright infringement cases and has followed through on about 70 of those threats. One case that was actually filed, Richard N. Bell v. Michael Maloney, 1:16-cv-01193, went before Indiana Southern District Court Judge Richard L. Young on Tuesday, when the parties argued, often acrimoniously, over whether intentional infringement occurred and over whether Bell even owns the photo in dispute.

Case beginnings

The defendant, Missouri resident Michael Maloney, is the owner of Maloney Forensics. According to Bell’s complaint, Maloney’s website, maloneyforensics.com, used the Indianapolis photo to advertise a forensic science seminar that was to be held in Indianapolis in 2014. Bell discovered the alleged infringement in 2015 — when the photo was not live on Maloney’s website — and began laying the groundwork for what would later become the instant case.

According to Maloney’s testimony, he received what he initially thought was a scam email from Bell demanding payment and removal of the photo. Bell did not specify which photo was at issue, but instead continued to raise the cost of his actual damages each day.

“I thought I was being extorted,” Maloney told the court.

Bell said he uses programs such as Google’s reverse image search to find where his photo has been published and said he first learned that multiple parties were allegedly infringing his photo in 2011, when his wife showed him a magazine that used the photo without his knowledge. That same year, more than a decade after Bell took the picture, he copyrighted the Indianapolis photo through the U.S. Copyright Office.

That action is what gives Bell the ability to file his federal lawsuits, he said, because the Copyright Act allows him to recovery statutory damages, in addition to actual damages. In Maloney’s case, he is seeking $10,000 in actual damages, plus legal fees he said total at least $25,000.

Whose is it?

But John Nelson, a Carmel attorney representing Maloney, presented a defense that questioned whether Bell actually owns the Indianapolis photo. The photo was taken while Bell was a partner at Cohen & Malad.

According to Bell’s version of events, he took the photo around 4 p.m. on a weekday in March 2000, when he was able to leave work early. He then edited the photo and had it framed so that he could hang it on his office wall.

Tom Blackburn, a former Cohen & Malad attorney who is now an Indianapolis solo practitioner, testified he saw the photo hanging on Bell’s wall and asked if he would be willing to let the firm use the picture for its new website, which Blackburn was charged with developing. Bell agreed, and the photo went live on the internet.

But Blackburn also testified he was first charged with developing Cohen & Malad’s website in the mid-1990s, which is when he said he asked to use Bell’s photo. He also claimed to have no recollection of the firm forming a website committee at that time, nor did he remember a contract that was signed between Cohen & Malad and West Publishing, which was eventually hired to take over website development. Bell later testified that both events occurred and consistently maintained the photo was taken in March 2000.

In addition to trying to discredit Blackburn’s testimony due to those inconsistencies, Nelson noted the photo, allegedly taken in early March, showed full foliage on the trees. Cohen & Malad senior partner Richard Malad, who testified for the plaintiff, said that as an outdoorsman, he would assume such foliage wouldn’t be present until late spring or early summer.

Nelson also said Bell had been unable to provide information that could prove when the photo was taken, a failure that became the key piece of the defense’s argument.

Where’s the metadata?

Specifically, Nelson said he repeatedly asked Bell to produce the metadata for the Indianapolis photo. According to Jessica Wilch, a web designer and photographer who served as the defense’s expert witness, digital cameras automatically generate metadata, which can include information such as when a photo was taken and what type of camera was used, among other things.

But that type of information has been and continues to be missing from the Indianapolis photo, Nelson and Wilch said. Wilch told the court she visited Bell’s website, richbellphotos.com, on the day of the trial and was able to find location and camera type data for every photo except one — the Indianapolis photo at the center of the litigation.

Those two pieces of information were critical to Maloney’s defense. According to Bell, he took the photo in March 2000 with a Nikon Coolpix 990, but Wilch said there is no way of verifying that information. She also said she was not certain Bell was telling the truth about the camera model because the photo file size was bigger than what could be generated by the 990 model.

Bell, however, maintained that the metadata argument was irrelevant because the federal copyright code does not require, nor even mention, metadata.

‘Within the scope’

But the lack of authenticating metadata was the foundation of the defense’s theory: that Bell had actually taken the photo as part of a work-for-hire agreement with Cohen & Malad so that it could be used on the firm’s website. If that were true, then Wilch said the firm would own the photo and Bell would have no copyright claim.

Both Blackburn and Malad testified no one at the firm asked Bell to take the photo, nor did they believe the firm had laid claim to the picture. Bell offered similar testimony, adamantly maintaining that photography was his hobby, nothing more. Thus, the photo was not taken within the scope of his employment, he said.

But Malad also testified his firm has owned a camera at several points over the years, and he would not have been surprised if it owned a camera in 2000. That, coupled with Bell’s testimony that he always left his camera equipment at home, supported the defense’s argument that Bell used company property to take a company photo, Nelson said.

Wilch and Nelson also noted some of the photos on the original Cohen & Malad website were attributed to other photographers, while the photos Bell took, including the Indianapolis photo, were not credited. To Wilch, that was another sign that the attorney took the picture in an official capacity.

But Bell said Blackburn did not approach him about using the Indianapolis photo until August 2000, and the website was not live until the following December. Nelson, however, noted the photo was taken one month after Cohen & Malad signed a site development contract with West Publishing and said there was an email indicating Bell took the photo on the same day the firm began discussing photos with West. 

Damages

As the parties continued to argue over Bell’s claim to the photo in question, there was an underlying yet less discussed issue running through the trial: the amount of damages that could be recovered. Bell said he was justified in his $10,000 request because he had been awarded $7,500 in similar cases with less “egregious” infringement. His co-counsel, Maura Kennedy, claimed Maloney was a sophisticated defendant who had actually been warned three times that the photo could be subject to copyright.

Maloney, however, said that while he may be an expert in forensic science, his expertise does not transfer to computer technology, so Bell’s claim that he is a sophisticated defendant is unfounded. Further, Maloney’s wife, Maxine, who downloaded the photo, said she used Apple’s Aperture application to search the photo for any copyright information, but found none.

The couple then made an allegation that Kennedy said was never known before: that the pages of the website that housed the photo never actually went live. Instead, the couple said they had to cancel their Indianapolis conference, so the webpages advertising the conference never went beyond their website host.

Maloney attributed that revelation, which differed from his sworn affidavit, to simple human error. Even so, Kennedy said even sending the photo to the webhost constituted publication that entitled Bell to statutory damages.

Bitter fight

The entirety of the seven-hour trial was colored by contentious exchanges between witnesses and counsel. Nelson and Bell, for example, frequently sparred over the missing metadata. Nelson said the lack of metadata was proof of his work-for-hire theory, while Bell often tried to refuse to answer metadata-related questions because he claimed the issue was irrelevant.

The most intense exchanges occurred between Bell and Wilch, who came into the court with bad blood. Wilch testified that Bell deposed her in a previous case for nearly 12 hours, an exchanged she said was very contentious. Wilch brought that experience to the witness stand, often answering Bell’s questions with quips such as, “As I told you during the hours-long deposition… .”

Wilch also tried to question Bell from the witness stand, asking him why every photo on his website except the Indianapolis photo contained location and camera model metadata. Bell refused to answer her questions, telling her he was under no obligation to do so.

For his part, Bell began his cross-examination of Wilch by asking about her legal history, including bankruptcy lawsuits, divorces and her alleged firing from her job with another defendant whom Bell previously sued. Young sustained objections to Bell’s questions related to Wilch’s personal and legal history, and she denied being fired by the defendant Bell sued.

Young did not intervene during the tense exchanges between Wilch and Bell, but he did often interrupt the questioning and cross-examination of Bell, who took the stand and answered questions from Kennedy and Nelson. Generally, Young admonished the attorneys for belaboring points that were either not in dispute or were irrelevant and instructed them to move on to a different line of questioning.

At the end of the seven-hour trial, Young — who had driven up from Evansville late Monday night — told the parties that he was two hours late for a hearing with another group of attorneys. Though it was already after 5 p.m., the judge said he would have to stay late to keep the docket moving, an issue that is particularly poignant in a jurisdiction that is bogged down by a judicial emergency.

Young ended the trial by giving the attorneys 15 days from the receipt of the transcript to submit findings of fact and conclusions of law. He also said his court reporter has a backlog of trials to transcribe, so the transcript may be released later than normal.

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