Copyright Infringement

October 22, 2018

Summary Judgment Entered for Defendant in Richard Bell’s Indianapolis Skyline Photo Copyright Infringement Suit

Richard N. Bell of McCordsville, Indiana filed a copyright infringement suit in the Southern District of Indiana alleging that David N. Powell, the executive director of the Indiana Prosecuting Attorneys Council (“IPAC”) infringed the “Indianapolis Nighttime Photo” of Richard Bell by using the photograph in a Spring Conference Brochure for the Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”). Last week the Southern District of Indiana District Judge Tanya Walton Pratt denied Bell’s Motion for Summary Judgment and granted Powell’s and MRNISO’s Cross-Motions for Summary Judgment in the case.
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September 25, 2018

Southern District of Indiana Judge Grants Motion for Summary Judgment in Design Basics LLC. vs. Kerstiens Homes & Designs Case

By Overhauser Law Offices, LLC

Design Basics, LLC, Plan Pros, Inc. and Prime Designs, all of Omaha, Nebraska, filed suit in the Southern District of Indiana alleging that Kerstiens Homes & Designs, Inc., T-Kerstiens Homes Corp., Kerstiens Realty, Inc., Kerstiens Management Corp., Kerstiens Leasing Corp., Kerstiens Holding Corp., and Kerstiens Development Inc. infringed multiple copyrights of the Plaintiffs.

Plan Pros is in the business of licensing home designs to builders through Plaintiff Design Basics and other such brokers. Design Basics also designs their own home designs and licenses these as construction drawings that can be modified to fit the customer’s needs. Design Basics has published and distributed almost 200 home catalogs and other publications with their copyrighted home designs. For the seven home designs at issue in this case, Design Basics earned $25,000.00 in licensing fees from 116 licenses since 2009.

The Defendants filed summary judgment motions asserting that they were not in the business of building homes or creating house plans for the management and holding companies and that the Plaintiffs’ evidence did not support the elements of a copyright claim for the design and building companies. Further, the home and building companies asserted that they independently created the designs and the Plaintiffs did not show that they own the registrations for the copyrights at issue.

September 21, 2018

Indiana Copyright Litigation: Indiana’s Chicks On The Right Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Gabriella Bass of Brooklyn, New York, filed suit in the Northern District of Indiana alleging that Defendant, COTR, LLC of Indianapolis, Indiana, infringed her rights in United States Copyright Registration No. VA 2-055-082. Plaintiff is seeking damages, statutory damages, costs, expenses, attorneys’ fees, pre-judgment interest, and other relief as the Court may deem just and proper.

The copyright at issue in this case is that for photographs of the fearless girl statue in New York City with the addition of a urinating dog. Bass licensed the photographs that she took to the New York Post. They subsequently ran an article featuring the photographs on May 29, 2017 with Bass listed as the photographer. Following the release of the New York Post article, COTR ran an article on their website featuring Bass’ photographs. COTR, however, failed to license the photographs from Bass or obtain her permission or consent to publish the photographs in their article.

Bass is suing for copyright infringement under 17 U.S.C. §§ 106 and 501 for COTR’s unauthorized use of her photographs. She is seeking damages and statutory damages for this violation for up to $150,000 per work infringed under 17 U.S.C. §504. Bass also alleges that COTR violated 17 U.S.C. § 1202(b) by removing copyright management information identifying Bass as the photographer. Statutory damages under this violation fall under 17 U.S.C. § 1203(c)(3) and amount to at least $2,500 up to $25,000 per violation.

August 24, 2018

Indiana Copyright Litigation: Attorney Bell Sues Another for Copyright Infringment

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Joan Mattox, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the U.S. Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorney’s fees and other relief deemed just and proper.

Bell has filed many copyright infringement cases on his own behalf based on his copyrights. See:

In this case, Bell claims that Mattox created a website to promote her business in the Indianapolis area with the domain name of http://www.readymadestaffing.com/. The Defendant then used the Indianapolis Photo on the website to garner the attention of prospective customers. It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

August 21, 2018

Indiana Copyright Litigation: Attorney Bell’s Copyright Infringement Case Against a New York Publication Company Dismissed Due to Lack of Jurisdiction

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney and Photographer Richard N. Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Halcyon Business Publications, Inc., of New York infringed his “Indianapolis Photo” which has been registered with the United States Copyright Office as Registration No. VA0001785115. After review of the Defendant’s Motion to Dismiss for Lack of Jurisdiction which was filed on December 29, 2017 the court granted the Motion to Dismiss on May 24, 2018.

Bell, who has brought many similar lawsuits for infringement of his Indianapolis Photo, initially filed this case on November 29, 2017 alleging violations of the Lanham Act and copyright infringement. Halcyon claimed that the Court lacked personal jurisdiction over the company as they do not maintain any offices in the state, have no employees in the state, and have no assets in the state of Indiana. They did admit that they hired one Indiana resident as an independent contractor to write for their publication, but that contractor did not write the article that utilized the Indianapolis Photo. Further, the total amounts of advertising sold to Indiana companies by Halcyon amounted to 3.26% and 4.55% in 2016 and 2017, respectively, and Indiana subscribers to the publication comprised less than 3% of their total subscribers.

Here, the Court must only look at whether the personal jurisdiction is consistent with the Federal Due Process Clause as Indiana’s long-arm statute is analyzed under this issue. For this, a defendant must have “minimum contacts” with the forum state and purposefully avail themselves “of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.” Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 109 (1987). This allows a defendant to reasonably anticipate being brought into a forum in a foreign jurisdiction.

August 16, 2018

Indiana Copyright Litigation: Attorney Richard Bell Sues Local Realtor for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Amy Polston, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, attorneys’ fees, and any other relief as is just and proper.

Bell, who has filed numerous similar cases, took the Indianapolis Photo in March 2000. He subsequently posted the photo online in August 2000 and registered the photo with the US Copyright Office nearly 11 years later. Bell alleges that Polston used the Indianapolis Photo on a website she created to promote and advertise her business in the Indianapolis area. He further alleges that Polston falsely claimed to Trulia.com, the profile host, that she owned the copyrights of all images and photographs used on her profile including the Indianapolis Photo. Bell asserts that Polston began using the Indianapolis Photo on her website beginning in 2014 without paying for the use or licensing the photo from him.

Plaintiff has filed this suit as Polston has refused to pay for the unauthorized use and has not agreed to be enjoined from using the Indianapolis Photo. As such, Bell claims that Polston is vicariously liable for each downloaded copy of the Indianapolis Photo by each third-party that downloaded it from her website. He also claims that she is liable for all profits resulting from these downloads and copyright infringement, even if she did not know that any use of the Indianapolis Photo would infringe Bell’s copyright.

August 15, 2018

Indiana Copyright Litigation: Indiana Artist Files Copyright Infringement Case Over Unauthorized Derivative Works

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Michel Keck of Jefferson Township, Owen County, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, John Mark Lawrence d/b/a Mark Lawrence Art Gallery of Alpharetta, Georgia, and DOES 1 through 25 infringed numerous pieces of artwork. Plaintiff is seeking judgment, actual damages, statutory damages, cost of litigation, and reasonable attorney’s fees.

Keck is a successful abstract and mixed media artist. She opened an online art gallery and her own fine art publishing company in 2006. Over 1,500 of her original paintings had sold by the end of 2006 to art collectors throughout the world. Keck has registered 22 original paintings (the “Works”) with the United States Copyright Office.

Defendant Lawrence gave an interview in 2009 stating that he creates his art by digitally manipulating existing images using Photoshop and other such computer programs. In April 2014, Keck was approached by an online distributor, Framed Canvas Art, and was given Lawrence’s contact information as a reference. In response to Keck’s email seeking information about the distributor, Lawrence stated, “I just took a look at your art – wow! You have a new fan.” Over three years later in September 2017, Keck found numerous art pieces for sale attributed to Lawrence that appeared to be unauthorized derivatives of her Works. It looked as though Lawrence would take one of Keck’s Works and then mirror or rotate it before running it through a computerized filter (creating “Unauthorized Derivative Works”).

August 13, 2018

Indiana Copyright Litigation: Dr. Keith Bell Files Suit Against an Indiana Resident and USA Volleyball for Copyright and Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Keith F. Bell, Ph.D. of Texas filed suit in the Northern District of Indiana alleging that Defendants, Lloy Ball, of Angola, Indiana, and USA Volleyball of Colorado Springs, Colorado infringed his rights in Copyright Registration Number TX-0002-6726-44 titled “Winning Isn’t Normal” (the “Infringed Work”) and his rights in Trademark Registration Number 4630749. Plaintiff is seeking judgment awarding damages, actual damages, profits, statutory damages, attorneys’ fees, injunctive relief, pre-judgement, and post judgment interest.

The Infringed Work was first published in 1982 and registered with the U.S. Copyright Office in 1989. Dr. Bell continues to offer for sale and market his book and derivative works such as posters and t-shirts with a specific passage known as the “WIN Passage”. He has offered and continues to offer licenses to those that may wish to publish or utilize the WIN Passage. The word mark “WINNING ISN’T NORMAL” has also been registered with the United States Patent and Trademark Office with Registration No. 4630749 for printed matter.

Dr. Bell alleges that Defendant Ball posted a representation of the WIN Passage on his Twitter account on or about November 12, 2015. This post received at least 51 “retweets” and 201 “likes” from Ball’s over 2,000 followers. Dr. Bell also claims that Defendant USA Volleyball posted a representation of the WIN Passage on their Twitter account on or about November 20, 2015 that included a “retweet” of the post by Defendant Ball. This post received at least 30 “retweets” and over 7,000 “likes” from USA Volleyball’s over 123,000 followers. Cease and desist letters were sent to Ball and USA Volleyball on July 15, 2016 and April 21, 2017, respectively. Both Defendants removed their posts shortly after the letter was sent to Ball, automatically removing all retweets of the post. While the Defendants have acknowledged liability to the Plaintiff, they have not agreed to enter into a settlement agreement to protect the Plaintiff’s rights and compensate him for his injuries, leading to this suit for both copyright and trademark infringement.

August 9, 2018

Indiana Trademark Litigation: Overhauser Law Offices, LLC Represent the Prevailing Parties Over Indiana-Based Vera Bradley

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, Vera Bradley Designs, Inc., of Roanoke, Indiana filed suit in the Northern District of Indiana alleging that Defendant, Austin Devin 2 Denny Boys, LLC, infringed multiple trademarks of the Plaintiff. Overhauser Law Offices, LLC represented the Defendant Austin Devin 2 Denny Boys LLC and Darlene Nicholas, who filed a Motion to Dismiss for improper venue and prevailed on July 30, 2018.

Plaintiff currently holds more than 900 copyright registrations, 35 federal trademark registrations, and has 17 pending federal trademark applications. The Plaintiff alleged in its complaint that the Defendants operate eBay accounts that they use to sell counterfeit Vera Bradley items and these acts infringe Vera Bradley’s trademarks and copyrights. All Defendants were sent cease and desist letters on behalf of the Plaintiff via counsel on July 26, 2017. On August 1, 2017, all Defendants party to the Motion to Dismiss responded through counsel and agreed to stop selling the counterfeit items, however, the Plaintiff alleged they did not cease their activities and filed suit.

The Defendants moved to dismiss Vera Bradley’s Complaint and claimed that because a substantial part of the events leading to the Plaintiff’s claims did not occur in the Northern District of Indiana, venue was improper. Further, Defendant Nicholas, claimed that the Court did not have personal jurisdiction over her. The Plaintiff countered that there were five specific instances in which the counterfeit merchandise was purchased by its employees within the Northern District of Indiana from the Defendants. They also claimed that venue was proper because they suffered harm in the District. As to Defendant Nicholas, the Court held that the Plaintiff did not give any persuasive argument as to how the Northern or Southern District Courts of Indiana could have general or specific personal jurisdiction over her in this case as she resides in Florida. Therefore, the Court was unable to transfer the case to the Southern District of Indiana, which may have been a proper venue for the other Defendants involved.

August 7, 2018

Indiana Copyright Litigation: Attorney Bell Strikes Again Suing The Association for Behavior Analysis, Inc. for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, The Association for Behavior Analysis, Inc., infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees, and any other relief as is just and proper.

Bell has sued many in Indiana federal courts asserting copyright infringement on his own behalf. See:

In this case, Defendant created a website for their business to promote an Indianapolis convention [http://hoosieraba.com/category/Indianapolis]. Plaintiff alleges Defendant published the Indianapolis Photo on that site without his permission. Bell has fully controlled his photograph from 2000 and registered it with the US Copyright Office in 2011. He discovered this alleged infringement of his photo in May 2018 with the use dating back to 2014. The Plaintiff not only alleges copyright infringement, but also vicarious liability for each copy of his photograph downloaded by third-parties from the Defendant’s website.