Shay Phillips, Ltd. is one of the rare downstate Illinois firms that focuses a significant portion of its practice on intellectual property matters. We have gained a reputation for tenacious and zealous advocacy of both intellectual property rights holders and those they sue. In order to succeed, we keep apprised of recent developments in the case law. Mr. Richard Bell has brought a slew of lawsuits in the Southern District of Indiana (where we have succeeded in some intellectual property matters).
Richard Bell's lawsuits in the Southern District of Indiana
In the past few years, Indiana photographer Richard Bell has filed a slew of lawsuits against individuals using his Indianapolis skyline photo. The Southern District of Indiana consolidated some select groups of those cases. Undoubtedly, a large portion of those individuals likely settled their cases, however, a select few defended against his claims. Several of them won. This post discusses one consolidated case where several defendants did defend the case and won.
Bell sued over the wrong photograph, destroying his case at the outset
After discovery, summary judgment motions were filed. The District Court for the Southern District of Indiana determined that one defendant did not infringe the copyright because Mr. Bell sued about the wrong photograph. The Court previously refused to allow him to change the suit to allege the appropriate paragraph. It explained that too much time had gone past and, essentially, blamed Mr. Bell's carelessness. After judgment was entered, he tried filing another lawsuit for the correct photograph, but the Court dismissed it on res judicata grounds. Res judicata is a latin word for a thing adjudicated. In short, Court's do not let litigants file new suit after new suit when the litigant should have raised all its issues at once. Here, the District Court essentially decided that Mr. Bell should have raised the
Failure to prove damages
As for the others, the District Court determined that Mr. Bell did not prove any damages. The facts concerning why Mr. Bell did not simply seek statutory damages are beyond the scope of this post. In the end, the Southern District of Indiana entered judgement in favor of the Defendants. (the author of this post has not determined whether or not the Defendants sought attorney's fees as prevailing parties under Section 505 of the Copyright Act). Mr. Bell's blanket statement that he would like to license the image for $200 was not sufficient to show the actual damages from infringement.
Bell appeals to the Seventh Circuit
Disappointed, Mr. Bell appealed the decision to the Seventh Circuit Court of Appeals. It just issued its Opinion. It affirmed the District Court's decision. In short, Mr. Bell never proved his damages and his attempt to get a second bite at the apple were not well taken.
There are a few lessons to be gleaned from this case. First, copyright holders should ensure their ability to seek statutory damages under the Copyright Act. Otherwise you find yourself in the difficult position of attempting to prove up your damages. Secondly, make sure your pleadings match the infringement. You may not get multiple bites at the apple.