The 7th Circuit Court of Appeals has affirmed the imposition of sanctions against an attorney for filing a frivolous and misleading motion against another attorney who claims his copyrighted photo of the Indianapolis skyline was used without permission by the defendant’s client.
Paul Overhauser, an intellectual property attorney at Overhauser Law, received a $500 sanction in December 2017 following his representation of Vacuforce against McCordsville attorney Richard Bell, who filed a suit for copyright infringement after he said when Vacuforce used his photo of the downtown Indianapolis skyline without his permission.
Bell, who is notorious for filing copyright infringement suits against hundreds of people who use his photo without first paying a fee, settled with Vacuforce and the case was eventually dismissed with prejudice. Overhauser then filed for costs and attorney fees against Bell, asserting the situation in the Vacuforce case was identical to a separate case in which Bell was ordered to pay $22,000 for wrongfully suing Charles Lantz for copyright infringement.
But the district court denied Overhauser’s motion, instead finding his filing to be “frivolous and misleading” under the circumstances of the case. The court also said Overhauser had intentionally misled the court with his motion.
On appeal, Overhauser argued several points, starting with the contention that his motion for fees was not frivolous because he cited cases awarding fees to defendants after courts dismissed the cases with prejudice. However, the 7th Circuit Court found that none of the cases Overhauser cited involved an agreed settlement.
“Since Overhauser did not even admit that a settlement agreement existed, he developed no non-frivolous argument that a ‘prevailing party’ includes a defendant that obtains a voluntary dismissal with prejudice through a settlement paid by its insurer,” Circuit Judge David Hamilton wrote. “His argument lacked even ‘modest support’ in the case law.”
Overhauser also argued the judge erroneously imposed sanctions because his motion was not misleading. But the 7th Circuit Court found that the district court did not abuse its discretion when it found that the Vacuforce case was not identical to Lantz.
“Claiming these are identical scenarios, without acknowledging the settlement in this case, requires a willful obtuseness. The plaintiff in Lantz conceded defeat and dismissed voluntarily and unilaterally, not as part of a settlement,” Hamilton wrote. “That’s why that defendant was entitled to attorney’s fees under 17 U.S.C. § 505. In this case, Vacuforce paid the same plaintiff to settle the claim.”
Thus, the 7th Circuit Court concluded the district court did not abuse its discretion in imposing sanctions on Overhauser in Richard N. Bell v. Vacuforce, LLC; Appeals of: Paul B. Overhauser, 18-1159 and 18-1368.