`

Attorney-photographer seeks more than $38K in fees after winning copyright suit

July 9, 2019

An Indianapolis attorney and amateur photographer is seeking more than $38,000 in attorney’s fees and costs after winning a $200 judgment in one of dozens of copyright infringement cases he’s filed.

Attorney Richard Bell is asking Indiana Southern District Judge Richard Young to award him $38,255.95 for the costs of pursuing a copyright infringement claim in Richard N. Bell v. Michael Maloney, 1:16-cv-01193. In May, Young entered a $200 judgment in favor of Bell and against Michael Maloney, a Missouri man who downloaded a photo Bell took of the Indianapolis skyline without first obtaining a license.

Bell sought a $10,000 judgment against Maloney during a contentious, seven-hour trial last July, when the attorney said Maloney committed copyright infringement by uploading the photo — taken from the canal in March 2000 — to his website, maloneyforensics.com. The photo was uploaded in 2014 to promote a forensics seminar scheduled to be held in the Circle City, and Bell discovered the infringement in 2015.

But Maloney said he was forced to cancel the seminar, so Bell’s photo never actually went live. Instead, it was uploaded only to a website host before eventually being deleted.

More central to Maloney’s defense was whether Bell even owned the photo. Maloney, represented by Carmel attorney John Nelson, claimed the photo was actually taken as part of a work-for-hire arrangement between Bell and the Indianapolis law firm Cohen & Malad, for which Bell worked in 2000.

During his time with Cohen & Malad, Bell was the firm’s point person in a contract with West Publishing to create a law firm website. Bell communicated with West via his work email, and he discussed using his own photos to make the website look better.

But Indianapolis solo practitioner Tom Blackburn, who also worked for Cohen & Malad in the early 2000s and assisted with website design, testified that he asked Bell if the firm could use the Indianapolis photo on the site, meaning the photo was already in existence when the site was created. Further, senior partner Richard Malad testified that no one at the firm asked Bell to take the photo. Instead, Blackburn said it was common knowledge within the firm that Bell was an amateur photographer, and his office was lined with landscape photos from different parts of the country, including the Indianapolis photo.

Maloney’s team tried to bolster their work-for-hire argument by pointing to the lack of metadata for the picture. Metadata provides information about a photo such as when it was taken and what kind of camera was used, but that information is not available for the Indianapolis photo. Without the metadata, the defense said Bell could not prove that the photo was taken as part of his hobby, as he argued.

Further, the defense noted Bell’s photo was never credited on the Cohen & Malad website, while photos taken by other photographers not associated with the firm were. That could prove that the firm, not Bell, owns the photo, Maloney argued, thus defeating his copyright infringement claim.

In ruling for Bell, Young noted initially that the attorney did not register the photo with the federal Copyright Office until 2011 — more than 10 years after the photo was taken — so the presumption of copyright registration validity does not apply.

But Young also rejected Maloney’s work-for-hire argument, noting Bell has filed roughly 70 infringement cases related to the photo, and Cohen & Malad has never asserted an ownership right. What’s more, Young said Maloney does not have standing to bring the work-for-hire argument because there is no dispute between Bell and the firm over who owns the photo, and the firm has made it clear that it does not believe it has ownership rights.

“Even if he had standing, the court finds he has failed to establish that the Indianapolis photo was taken by Bell, as a work-for-hire, during his employment with C&M,” the judge wrote. “Maloney is therefore liable for copyright infringement.”

However, under 17 United States Code § 504(c)(2), Young chose to award Bell only $200, rather than $10,000, because Maloney was not aware the photo was entitled to copyright protection.

In his findings of fact, Young noted Maloney’s wife, Maxine, was the one who initially downloaded the photo. Maloney had asked his wife to only download non-infringing images to promote the forensics seminar, and Maxine’s research into the photo did not reveal any copyright protection. Specifically, she searched source pages and used a computer program to find copyright information or metadata, but found none.

“Based on her research, Maxine did not believe the Photo was subject to copyright,” Young said. “Neither did Maloney.”

Further, Maloney did not profit from the photo because only two people registered for his seminar, so the event was cancelled and the seminar webpage never went live. Thus, he was an innocent infringer, Young said.

“In addition, Bell seeks to enjoin Maloney from copying and republishing the Photo,” the judge continued. “Maloney took the Photo down years ago. There is nothing to enjoin.”

Though Bell received only $200, Young did find the attorney is entitled to his costs. In a brief urging the court to award him more than $38,000, Bell criticized the work-for-hire defense, saying he warned Maloney early on that he would not prevail under that theory.

“… (B)ut Maloney continued on racking up attorney’s fees in the process,” Bell wrote June 24. “… Plaintiff should not be forced to bear the financial burden of Defendant’s unwarranted litigation tactics and groundless affirmative defense.”

Further, the defense’s decision to proceed with the work-for-hire argument caused other copyright litigation Bell has filed to be “delayed for lengthy periods of time,” he said.

Bell also submitted a declaration and a timesheet from his co-counsel, Maura K. Kennedy, who billed Bell at a rate of $225 an hour for 149.05 hours, as of June 24. That comes out to $33,536.25 in attorney’s fees, plus $4,719.70 in other costs.

Having served as lead counsel in 19 federal copyright cases, Kennedy said she “firmly believe(s) the amount of attorneys’ fees plus costs requested by Plaintiff Bell in his Motion are exceptionally reasonable for three years of litigation, representation during two lengthy (Defendant-requested) depositions in this matter, a full-day bench trial, and more than eighty-six filings on the docket, including additional filings after the filing of Plaintiff’s Motion for Attorneys’ Fees and Costs… .”

Indiana Lawyer has reached out to Nelson, Maloney’s attorney, for comment on Young’s ruling and Bell’s request for fees. Maloney’s brief regarding the fees is due July 15.

ADVERTISEMENT

Recent Articles by Olivia Covington