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Attorney-photographer loses suit against IPAC director

October 12, 2018

A McCordsville attorney and hobbyist photographer who has sued dozens of people for the alleged infringement of his photo of the Indianapolis skyline has lost key rulings in the most recent order in his various cases.

Indiana Southern District Judge Tanya Walton Pratt denied Richard Bell’s motion for summary judgment Thursday on his copyright infringement claim in Richard N. Bell v. David N. Powell and Midwest Regional Network for Intervention with Sex Offenders, 1:16-cv-02491. Pratt granted Powell’s and the network’s cross-motions for summary judgment.

Bell sued Powell, who is the executive director of the Indiana Prosecuting Attorneys Council, and the nonprofit sexual assault educational organization after he discovered his March 2000 photo of the Indianapolis skyline had been used for a MRNISO brochure that was posted on the IPAC website.

The brochure in question was created to advertise MRNISO’s 2015 annual meeting in Indianapolis. It featured Bell’s photo, as well as two other photos of Indianapolis, with words superimposed over Bell’s photo to provide information about the conference.

At the request of MRNISO, IPAC posted the brochure on its website to advertise the conference to its members. When Bell discovered this in April 2016, he demanded payment. Both Powell and MRNISO refused, prompting the instant lawsuit.

In an amended complaint, Bell argued he was suing Powell individually, not in his capacity as a state employee. He said the executive director “is individually liable to Plaintiff because Defendant Powell controlled, supervised, had final authority over the content of http://www.in.gov/ipac” and because he “individually approved the copying of the 2015 MRNISO Spring Conference Brochure containing the ‘Indianapolis Nighttime’ Photo’” onto IPAC’s website.

But after earlier denying a motion to dismiss the amended complaint, Pratt agreed with Powell that those arguments proved Bell was suing him in his official capacity, thus entitling Powell to immunity under the 11th Amendment.

“As Powell correctly and succinctly explained, he ‘would not be facing Bell’s allegations if he were not the Executive Director of the IPAC. The sole reason that Powell is a party to this action, as made clear via both Bell and Powell’s evidence, is only because he is responsible for ‘all facets’ of IPAC’s operation,’” Pratt said.

Pratt also agreed that MRNISO was entitled to summary judgment under the fair use exception to copyright law, noting neither the organization nor its leaders profited from the conference advertised by the brochure.

“The nature of Bell’s Indianapolis Nighttime Photo was a depiction of a city skyline in order to sell copies of a photograph of the Indianapolis skyline, whereas the nature of the photograph on MRNISO’s brochure was to provide a factual depiction of Indianapolis to inform the public about where an educational, professional conference on sexual assault would be held,” she wrote. “While the Indianapolis Nighttime Photo appears to have been copied in its entirety, the photograph was included as only a small portion of the brochure in comparison to the entire brochure, and as the Defendants correctly pointed out, the Indianapolis Nighttime Photo was only one of many photos comprising Bell’s copyrighted work as a whole.”

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