Copyright Infringement

September 15, 2015

Indiana Copyright Litigation: Former School Employee Sues Schools for Unauthorized Use of Copyrighted Program

South Bend, Indiana – Pro se Plaintiff Angela E. Brooks-Ngwenya, of Fort Wayne, Indiana has filed a copyright complaint in the Northern District of Indiana alleging that The Mind Trust, United Way of Central Indiana, Central Indiana Education Alliance, Phalen Leadership Academies, and Indianapolis Public Schools (“IPS”), all of Indianapolis, Indiana, committed copyright infringement.

Plaintiff contends that she piloted a program, Transitioning Into Responsible Students (“TIRS”) at Gambold Middle School in 2002. She claims that she filed for copyright protection on TIRS in 2006 and that she received a copyright registration in 2008 from the U.S. Copyright Office.

Brooks-Ngwenya claims that her copyrighted material has been infringed by several of Defendants’ programs, including Bridges To Success Education School Model and the Phalen Leadership Academies Education Model.

According to documents filed with the court, prior federal litigation between Brooks-Ngwenya and IPS, which included allegations by Plaintiff of race and gender discrimination, was concluded through a confidential settlement agreement between the parties. Brooks-Ngwenya asserts that these current claims of copyright infringement were excluded from that settlement agreement. Prior litigation between the parties in Marion County court included disability claims made by Brooks-Ngwenya.

Plaintiff drafted a cease and desist order for the court’s review as part of her filing and asked that the court enforce it pending a settlement. She also requested a mediation hearing.

September 9, 2015

Indiana Copyright Litigation: Court Allows Copyright Plaintiff to Add New Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Acting as his own Indiana copyright lawyer, Larry G. Philpot of Indianapolis, Indiana, filed a motion to amend his complaint in the Southern District of Indiana, Indianapolis Division in his ongoing intellectual property litigation against Mansion America, LLC and Oak Ridge Boys Theater of Branson, Missouri.

This lawsuit, which was filed in August 2014, alleges that Defendants Mansion America, LLC and Oak Ridge Boys Theater infringed the copyright of a photo that Plaintiff Philpot took of Willie Nelson during a 2009 performance in St. Louis, Missouri. A copyright to the photograph, Certificate Number VAu 1-132-411, was issued by the U.S. Copyright Office in 2012.

Mansion America filed a motion to dismiss the copyright litigation. The court granted Philpot leave to conduct limited discovery to assist him in responding to that motion. Plaintiff Philpot now indicates to the court that the discovery provided him with additional information, including the identities of additional parties who had been before been unknown to him. Philpot consequently asked the court for leave to amend his complaint.

The court noted that that, while the time for amending the complaint as a matter of right had elapsed, it was still within the court’s discretion to allow the amendment and that, under the Federal Rules of Civil Procedure, the court should “freely give leave when justice so requires.” Finding that there had been “no undue delay, bad faith, dilatory motive, undue prejudice, or futility of amendment,” and that Philpot had “diligently pursued discovery and prosecuted his case,” the court found that justice required that leave be granted to Philpot to amend his complaint.

August 24, 2015

Introduction to Criminal Copyright Infringement – Fourth Element: Commercial Advantage or Private Financial Gain

By Overhauser Law Offices, LLC

The fourth element of a criminal prosecution for copyright infringement requires that the

government prove that the defendant engaged in an act of copyright infringement “for purposes of commercial advantage or private financial gain.” It is unnecessary that a profit be made as a result of the infringing activities. This interpretation was intended to exclude from criminal liability those individuals who willfully infringe copyrights solely for their own personal use, although those individuals may still be pursued by the copyright holder in civil court.

It is a common misconception that if infringers do not charge subscribers a monetary fee for infringing copies, they cannot be found guilty of criminal copyright infringement. While evidence of discrete monetary transactions (i.e., the selling of infringing goods for a particular price) provides the clearest evidence of financial gain, such direct evidence is not a prerequisite for the government to prosecute.

August 14, 2015

Introduction to Criminal Copyright Infringement – Second Element: Infringement

By Overhauser Law Offices, LLC

The second element of a criminal prosecution for copyright infringement requires that the government prove that the defendant infringed upon the holder’s rights in its copyrighted intellectual property. Although the term “infringement” itself is not specifically defined in the copyright statute, 17 U.S.C. § 501(a) provides that: “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by [17 U.S.C. §§ 106 to 118] . . . is an infringer of the copyright.” Thus, the concept of infringement is defined by reference to the exclusive rights conferred on a copyright owner by 17 U.S.C. § 106. Those exclusive rights include the right to display or perform the work publicly, as set forth in 17 U.S.C. § 106(4)-(5), along with the right to reproduce and distribute copies of the work, as set forth in 17 U.S.C. § 106(1) and (3). The unauthorized exercise of these rights will constitute an act of infringement and will give rise to a civil infringement claim by the copyright holder and perhaps prosecution by the government.

Generally, infringement is established by evidence of copying. However, because copying often cannot be directly attributed to the defendant, copying can be established indirectly through evidence that the defendant had access to the original copyrighted work, and that the defendant’s work is substantially similar to it.

With regard to prosecution for alleged infringement of copyrighted computer programs, a court must also decide separately whether or not the copies at issue were lawfully made under 17 U.S.C. § 117, which authorizes such duplication in certain circumstances. Thus, unlike copies of other types of copyrighted works, copies of computer programs are not automatically presumed to be unauthorized.

August 11, 2015

Indiana Copyright Litigation: Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Richard N. Bell of McCordsville, Indiana, who is both an Indiana copyright attorney and a professional photographer, filed a lawsuit alleging copyright infringement in the Southern District of Indiana. Bell claims that Indiana Procurement Technical Assistance Center of Indianapolis, Indiana infringed his copyrighted “Indianapolis Skyline” photo, U.S. Copyright Registration No. VA0001785115, which has been registered with the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Indiana Procurement Technical Assistance Center, a governmental unit of the state of Indiana, is accused of creating “a website to promote and advertise its own business” and displaying Bell’s copyrighted photo on that website. Bell further claims that this government entity “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos” contained on its website, http://www.indianaptac.com/, including Bell’s photo of Indianapolis.

In this single-defendant lawsuit, Bell contends that “as a direct and proximate result of their wrongful conduct, Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” The acts in question are alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.

In this federal complaint, which copyright lawyer Bell filed on his own behalf, counts of copyright infringement and unfair competition are asserted. Bell asks for an accounting of all “gains, profits and advantages derived by Defendants [sic]” as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip #1:

Bell will have to contend with the doctrine of sovereign immunity as an initial hurdle to proceeding with this copyright litigation. Sovereign immunity, as a general rule, bars lawsuits such as this one against states. Sovereign immunity may be waived by a state for a particular type of lawsuit. The federal government may also abrogate states’ sovereign immunity with respect to certain types of claims.

In 1990, Congress passed the Copyright Remedy Clarification Act. Under 17 U.S.C. § 511(a), “[a]ny State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the… doctrine of sovereign immunity, from suit in Federal court…for a violation of any of the exclusive rights of a copyright owner….”

On the surface, this language appears to constitute an abrogation of states’ sovereign immunity regarding copyright infringement. However, the U.S. Supreme Court has held that “Congress may not abrogate state sovereign immunity pursuant to its Article I powers.” Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S 627, 636 (1999).

However, it appears that the Copyright Remedy Clarification Act has attempted to do just that. According to at least one recent decision out of a federal district court in Lexington, Kentucky, Article I is indeed what Congress relied upon to authorize the passage of the Act purporting to abrogate states’ rights with respect to copyright infringement lawsuits. This, the court held, rendered the attempted abrogation invalid. That litigation was consequently dismissed by the court as barred by the doctrine of sovereign immunity.

Practice Tip #2: Richard Bell has sued hundreds of defendants for copyright infringement in Indiana’s federal courts. Previous blog posts regarding his litigation include:

• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

August 7, 2015

Introduction to Criminal Copyright Infringement – First Element: Existence of a Valid Copyright

By Overhauser Law Offices, LLC

The first element of a criminal prosecution for copyright infringement under 17 U.S.C. § 506(a) requires proof that the copyright at issue is a valid copyright. This may be established by demonstrating that the formal requirements of copyright registration have been satisfied. Although registration of a copyrighted work is not necessary to obtain copyright protection, it is usually required before prosecuting a copyright defendant in criminal court.

Registration of a copyright is typically proven by obtaining a certificate of registration from the Register of Copyrights. Under 17 U.S.C. § 410(c), a certificate of registration “made before or within five years after the first publication of the work shall constitute prima facie evidence of the validity of the copyright. . . .” If the defendant contests the validity of the copyright at issue as a defense in a criminal prosecution, the government would need to make an independent evidentiary showing that the copyright is valid. This would involve showing that the copyright was not obtained by fraud and the registration certificate is genuine.

July 2, 2015

Indiana Copyright Litigation: Bell Rings in the Holiday Weekend with a New Copyright Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright lawyer and professional photographer Richard Bell of McCordsville, Indiana filed a federal intellectual property lawsuit in the Southern District of Indiana. He alleges copyright infringement by Randolph Ventures, LLC of Peoria, Illinois. At issue is a copyrighted photo of the Indianapolis skyline taken by Bell that has been registered by the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this Indiana complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

In this Indiana lawsuit for copyright infringement, Bell asserts that Defendant Randolph Ventures used Bell’s copyrighted image without permission when it displayed the photo to advertise its business on the Internet at http://webdesign309.com/indianapolis/. Bell claims that the limited liability company that he sued “willfully and recklessly falsely claimed that he owned the copyrights of all images and photos” contained on that website, including Bell’s photo of Indianapolis. Bell asserts that Defendant has thus profited from the use of the copyrighted photo.

In this single-defendant lawsuit, Bell contends that “as a direct and proximate result of their wrongful conduct, Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” The acts in question are alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.

In this federal complaint, which copyright attorney Bell filed on his own behalf, counts of copyright infringement and unfair competition are asserted. Bell asks for an accounting of all gains, profits and advantages derived by Defendant Randolph Ventures as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in the Indiana federal courts. Previous blog posts regarding his litigation include:

• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

June 26, 2015

Indiana Copyright Litigation: Bell Files New Copyright Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright attorney and professional photographer Richard N. Bell of McCordsville, Indiana has sued PROACT Search LLC of Wilmette, Illinois in the Southern District of Indiana on allegations of copyright infringement. At issue is a copyrighted photo of the Indianapolis skyline taken by Bell that has been registered by the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this Indiana complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

PROACT Search, which does business on the Internet at www.proactsearch.com, advertises itself as a national executive search firm that assists school districts to fill leadership-level job vacancies.

In this Indiana copyright lawsuit, Bell contends that PROACT Search used his copyrighted image without permission when it used Bell’s photo in promotional material that announced that “Indianapolis Public Schools hires PROACT Search to find a new Deputy Superintendent.” Bell claims that Defendant “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the advertising piece,” including Bell’s photo of Indianapolis.

Bell asserts that PROACT Search has thus profited from the use of the copyrighted photo. This use is alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.

In this federal complaint, which Plaintiff Bell filed on his own behalf, Bell asserts claims of copyright infringement and unfair competition. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip: Richard Bell has been a prolific copyright plaintiff in the Indiana federal courts. Some previous blog posts regarding his litigation include:

June 24, 2015

Indiana Copyright Litigation: Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana attorney Richard N. Bell of McCordsville, Indiana filed an

intellectual property lawsuit in the Southern District of Indiana alleging that Find Tickets, LLC of Alpharetta, Georgia infringed the copyright of a photo of the Indianapolis skyline taken by Bell.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

Find Tickets, LLC, which does business at the website www.findticketsfast.com, has been accused of infringing the copyright of this photo. In this single-defendant complaint, Bell contends that Find Tickets used his copyrighted image without permission and that, moreover, “each Defendant willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the Defendant’s website,” including Bell’s photo of Indianapolis. Consequently, alleges Bell, “Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” Defendant Find Tickets is accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”

In this federal complaint, copyright lawyer Bell makes claims of copyright infringement and unfair competition. Plaintiff asserts that he has suffered irreparable injury as a result of the alleged infringement of his copyrighted photo. Bell asks the court to declare that Find Tickets’ use of the photo violates Bell’s rights under the Copyright Act and to enjoin further infringing uses of his photo. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys’ fees.

June 17, 2015

Indiana Copyright Litigation: Richard Bell Files Two New Copyright Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana attorney Richard Bell of McCordsville, Indiana filed two new lawsuits alleging copyright infringement in the Southern District of Indiana. The Defendants in the first lawsuit are WRTV of Indianapolis, Indiana, and DISH Network Corporation of Englewood, Colorado. The Defendant in the second copyright complaint is Larry Turner of Indianapolis, Indiana.

In two similar intellectual property complaints, Bell, an Indiana copyright lawyer and professional photographer, alleged infringement of a copyrighted photo of Indianapolis. This photo, Registration Number VA0001785115, has been registered by the U.S. Copyright Office. Bell claims that he owns the intellectual property rights to the photo.

In two separate lawsuits, filed in an Indiana federal court, Bell asserts that the Defendants used his copyrighted photo without having purchased a license. Each complaint lists one count, “Copyright Infringement and Unfair Competition.” Bell asks for injunctive relief; actual and/or statutory damages; and reimbursement of litigation costs, including attorneys’ fees.