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Attorney sues hundreds over use of Indy skyline photo

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They say a picture is worth a thousand words. Local attorney Richard Bell says his picture of the Indianapolis skyline is worth $1,500 or so if you’ve posted it on your website without first paying him to license it.

Bell said he’s found about 300 people using the photo he took in 2000. According to court documents, the photo was registered with the U.S. Copyright Office in 2011, after which Bell’s demand letters and lawsuits began to fly. Bell said most defendants settled, with fewer than 10 defendants scheduled to go to court Sept. 29 in the U.S. District Court for the Southern District of Indiana.

richard bell photo 15colRichard Bell says his photo of the Central Canal and Indy skyline has been stolen and posted online by hundreds of people. (IBJ Photo/Eric Learned)

Defendants call Bell a copyright troll or worse. His litigation has survived dismissal motions, and this month Judge Tanya Walton Pratt denied a counterclaim that Bell abused the legal process in one of three cases still pending.
 
“The essence of it is they called me a digital extortionist,” Bell said, but he claims the law is on his side. His lawsuits allege not just copyright infringement and unfair competition, but also theft.

“Defendants have realized and continue to realize profits and other benefits rightfully belonging to Plaintiff,” Bell asserts in his suits that seek treble damages and attorney fees.

“There are members of the public that think that they can steal photographs off a website and use it, and it’s theft, just plain and simple,” he said. “If you walked onto my property and took down my tree or if you stole my car … it’s essentially the same thing.”

Bell said he’s licensed the photo to several people for a fee of $200 through the website www.richbellphotos.com. He justifies his litigation and tactics by invoking the 1970s Fram Oil Filter TV commercial – “You can pay me now, or pay me later.”

As was implied in those commercials, later costs more. “I ask (defendants) to take it down and compensate me,” Bell said, acknowledging his price often rises with the passage of time.

More than 100 defendants resolved before cases were filed, about 75 defendants settled after suits were filed, a few cases were dismissed for jurisdictional issues and just a handful of defendants remain, he said.

“You can see I take this kind of seriously,” said Bell, who claims he’s retired and just protecting his proprietary rights to the copyrighted image.

Jessica Wilch is no lawyer, but she said she’s gotten an education through her involvement in one of Bell’s cases.

“I’m a layperson, but if you look at the actions going on here, I feel there’s something that’s wrong in the legal system, and he’s taking advantage of it,” Wilch said.

In her work as a Web designer, Wilch is diligent about checking out images before using them. “I always check to see the images I use are royalty-free and fair use," she said.

So when she was designing a website for real estate agent Shanna Cheatham and seeking a stock photo for an Indianapolis community information page, she did what Web designers often do. She checked Google images for a generic image of the city skyline. Bell’s photo was among those that most prominently popped up, so she checked it out.

“There was no copyright, no trademark” information, Wilch said. “I even checked the metadata. … That particular image, the metadata is stripped out.” So she used it.

Wilch said a year or two went by before Cheatham received a letter from Bell along with a copy of a civil suit naming her. Wilch said Cheatham told her that Bell was demanding $200 by the end of the business day. The price later rose to $500, Wilch said.

richard bell photo sky 15colThe photo was taken in 2000 and copyrighted by Richard Bell 11 years later. (Photo submitted)

Wilch, who isn’t a defendant but may be a defense witness, said that after her client received Bell’s notice, she called Bell. She informed him that as a courtesy, the image would be removed from the website, but she also asked for proof of ownership of the photo. Wilch said she became skeptical after Bell said the photo’s presence on his website, which she said she’d never seen, was proof enough.

“We’ve been contesting this whole thing, and Mr. Bell has not produced any document that shows he owns the photograph,” she said.

Carmel attorney John W. Nelson is defending Cheatham and other remaining defendants.

Wilch believes copyright laws haven’t kept pace with the digital age. “The Internet has opened up a Pandora’s box when it comes to imaging,” she said. “If you take a picture on your phone and put it on the Web, who owns it? Who can use it?”

Bell said he’s using the legal remedies available to him and disregards those who argue copyright laws are lagging.

“Every single website that you create or anybody creates has an agreement with your website host that says you’re not allowed to put anything on that website that’s not your property,” he said.

But in cases where actual ownership and copyright status of digital media is not readily clear, the bar for litigants can be low.
 
Paul Overhauser is an attorney with offices in Greenfield and Indianapolis who writes the Indiana Intellectual Property Law News blog. He’s written about Bell’s cases and believes current copyright law may enable trolling.

“I think the (Bell) case demonstrates how copyright law needs to be updated,” Overhauser said. “What would be most helpful would be a requirement for a copyright owner to require them to identify themselves and include a copyright notice on the image.”

For defendants in such cases, the cost of settling is typically less than the cost of hiring an attorney, so many simply pay up even when they have a legitimate defense, Overhauser said. And because many defendants are businesses, their liability insurance policies often include clauses covering advertising injury that will pay that claim.

“The real hammer (Bell) has in these cases is that in the 7th Circuit, the prevailing party in a copyright infringement case has the ability to recover attorney’s fees,” Overhauser said. But he said he was surprised that the cases also asserted unfair competition and theft, which are pre-empted by the copyright statute.

Overhauser believes pleading those could damage Bell’s ability to recoup fees, even if the court rules in his favor on the copyright claim. If he doesn’t prevail on those others, Overhauser said, “that may discourage a court from awarding Mr. Bell attorney fees.”

Defendants who infringe on copyrights online have no excuses, Bell said, though they offer a multitude of them. “I simply don’t buy the argument from anybody that when they put that on their website, that doesn’t fall into the category of willfully stealing.”

He acknowledges many of those who settled were loath to do so. “To say they really wanted to pay me probably would be stretching it,” he said. “A responsible lawyer and their clients, they obviously know it’s going to be far more expensive to try it.”

Pratt didn’t dismiss Bell v. Taylor in March when defendants argued abuse of process. But in dismissing a case with prejudice on jurisdictional grounds, Pratt wrote that Bell failed to state a claim. “Bell has alleged, but has not shown, that he is entitled to relief. His Complaint contains formulaic labels and conclusions, but not facts.”

Meanwhile, Wilch questions Bell’s tactics. She said after she began to ask questions about the original photo, Bell grilled her in a deposition lasting about nine hours. “People are settling because, in my opinion, there’s an abuse of power that’s intimidating to people,” Wilch said.

“This is awful, and it’s happening to people all over the country,” she said.

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  • Stealing Images
    How many Pro Sites steal the Daila Lamas quotes and do not pay him for it. Lots of Hypocrites out there..
  • Sue
    Google was one of the first web crawler to list images. Their site showed thumbnails with a link to the original web page. They would remove the link if asked. However many people didn't ask...does that make their photos free or fair use. Don't think so.
  • He's right to sue
    The "designer" believes any image on Google is hers to steal unless it is disfigured with a copyright notice. She is wrong. Virtually no images on the web are free to steal, and the law and common sense dictates that it is up to the would-be user to make sure the image is in the public domain. Without such proof, one must assume it is owned by someone, and that copying it and commercially using it is copyright infringement. The designer's excuses are especially baseless in light of the numerous stock agencies where one can buy a license for a few bucks and be legal.
  • Copyright watermarks and Google
    I am a professional photographer whose work gets infringed often, too often. I watermark my work and guess what? That doesn't stop them from being used without my permission. My metadata gets stripped out, my copyright cropped off or cloned over. I take my work and my copyrighted material seriously and do pursue legal avenues when my images are infringed. Just like I would if a thief stole my car. Too many people think that the great Google Wizard behind the curtain craps out photos for them to use for nothing. Every image is copyrighted the moment the shutter button is clicked. Every one of them no matter if you use gear that costs thousands of dollars like mine does, a $99.00 point and shoot or a cell phone. It is as simple as that and if a web designer doesn't know that then they should look for work elsewhere. I found it on Google so I thought it was free, I saw it on Twitter and thought it was free, I saw it on Pinterest so I took it. The image belongs to the photographer whoever they might be. Any web designer worth their salt KNOWS they should not use images they haven't taken, gotten permission to use or paid for licensing. If it does not belong to you don't use it.
  • Regarding Stripped Metadata
    “There was no copyright, no trademark” information, Wilch said. “I even checked the metadata. … That particular image, the metadata is stripped out.” So she used it. (and she got paid for her work, right?) I am a professional photographer, my images have been stolen over the years as well. It's unacceptable. I have no other words for stealing, it's just unacceptable. As far as metadata being stripped, it happens. The photographer doesn't willfully strip metadata and then put an image online to bait thieves, I'm sure Mr Bell didn't strip the metadata. Sometimes the site you are uploading an image to will strip it on upload. Just because am image doesn't have a visible watermark or copyright notice or embedded metadata doesn't mean it isn't copyrighted by SOMEONE. SOMEONE had to shoot that image! It didn't simply appear online all by itself, someone shot it, someone created it. That person who clicked the shutter release owns copyright to that image the second they release the shutter. If that person doesn't give permission to use the image or sell you permission to use the image, then it's not yours to use. Period. Why is it that designers think they can get materials for their creations free? Meaning photographs and images. I have over 20,000 dollars worth of camera and lighting equipment that I use for my photography business. And I get emails weekly where a designer is asking me to donate my images to them for free. So they can be great web designers and pay their bills? Do they think I don't have bills too? Oh, don't get me started.... Annie
  • Google Search by Image
    Just done a Google Search by Image and this image resulted in 547 websites and one wonders how many had actually licensed the image.
  • A Photographer's view
    Firstly, my comment is from a photographer whose work is constantly being infringed and I do pursue those who use it to their commercial gain and who do not bother checking the veracity of images they find online. I wish I had a dollar every time the response from infringers includes "Oh, I found it on Google and thought it was free" or "there was no watermark and thought I could use it for free". Firstly, watermarking images is mostly pointless as on many occasions I find my work on commercial sites WITH the watermark (with ©Sheila Smart) still embedded in the image. Also since the 1980s in the US it is not a requirement to watermark photographs purely because legitimate clients of photographers would not expect a watermark to be included in the license. One of my print sites refused to watermark large thumbnails and within weeks, I found my work all over the internet being passed on from one site to another, especially sites like Pinterest, Tumblr et al without correct attribution. The bottom line is basically, the bottom line. People like web designers who surely should know better, just do not want to pay for images. Period. I recently found a brochure on an ex-client's website where one of the images in the pdf clearly had the microstock library's watermark clearly embedded in the image. Similar images to Mr Bell's can probably be found on any microsite or macro stock sites and these days, can be licensed for very little but why license an image when there is a perfectly good one sitting on Google which they can use. Who is going to find out? Well, for one thing, photographers have been finding their work since the advent of Google Search by Image a few years back and it takes a nanosecond to find their photographs on sites from Beijing to Baltimore. For the person who believes that Mr Bell would not get $1,500 if he took it to court - think again. As the image is registered with the USCO, he could receive up to $150,000 if deemed wilful and $30,000 if not. My US attorney sums it up here http://www.photoattorney.com/wp-content/uploads/2013/02/Excuses-excuses.pdf and she also comments on "fair use". I don't quite understand how the web designer thought that such commercial use would fall into that particular category especially when she would be charging her client for the image. So the moral of the story is this: Take the photograph yourself OR purchase a license from a reputable stock library OR license directly from a photographer after ensuring its veracity. Do not assume that the site where you find a photograph is the legitimate holder of the copyright. In 99% of the cases, it has been ripped off.
    • Copyright Myths
      It's sad that this Wilch woman, in a profession that requires basic knowledge of intellectual property (e.g. copyright law), is under the delusion of many high school kids that anything online is ok to use. Google is NOT a giant clip art catalog! It's sad that Google chose to make itself look like one! Everything has copyright protection unless, for one example, the creator of it has been dead 70 years. I don't even trust stock sites, because most of them don't vet members or images, so anyone can upload anything, even if they don't own rights to it. Get on any search engine and look for Copyright Myths. Go to the US Copyright Office site, copyright.gov, and read the FAQ page. The phogographer was within his rights to pursue infringers, whether you like the method or not. This is not a flaw in copyright law, it's a reaction to having to spend way too much time and money on people who think they can just take your work. That gets old after awhile, especially if you make your living with this material.
    • an idea...
      Here's an idea. If a successful real estate agent wants a photo of Indianapolis for use on her website, why doesn't she pay someone to go take one that she knows she can use? I mean really, how much does she charge her clients to sell their houses? How much was her Mercedes? "I found it on Google" doesn't mean she has unlimited rights to use it for commercial purposes.
    • Outrageous
      Mark, The problem is not his issuing a cease and desist order and making people take it down. He's not interested in that. He's interested in shaking down people for money. He knows he couldn't get $1500 for the use of the photo if he went to court but he knows he can get people scared enough to pay him.
    • Make a law for the ACLU
      In order to join the (A)ll (C)riminals (L)ove (U)s, all potential members must pass a test on the contents of the United States Constitution. That will effectively dry up the 'union' since none of them have ever read it. The 1st Amendment ONLY addresses the right to complain about the government without fear of redress. Nothing more!!!
    • ..then do shoot it.
      ...then go shoot it, don't steal it from someone else.
    • If you shoot it, you own it
      ...it's a simple as that. If you shoot it, you own it. If you didn't shoot it or didn't pay for it.....DON'T USE IT.
    • Smells fishy!
      Well, I'm not an attorney as I don't want the bad reputation. As I understand it copyrighted material can be copied for personal use. However, I'm uncertain as to what the parameters of "personal use" would be. I believe where one crosses the line is one it is used for commercial and/or monetary profit. If that is the case then the copyright holder can sue for damages. I even think in some cases they can get a share or percentage of revenue or profits garnered from the material's usage. However, I always thought that copyrighted material had to state it was copyrighted, or show the copyright seal. Furthermore, considering the metadata was removed or more to the point stripped makes what this attorney is doing highly questionable.
    • Please
      While I do not agree with this Attorneys actions, PLEASE do not allow this one person to ruin the reputation of a lot of got Attorneys! There is just as many bad Doctors, waitresses, plumbers even professional athletes but there many good ones as well. People always seem to bash Attorneys, as a whole, until they really need one and then they are their best friend.
    • Art Hustle?
      For fear of reprisal, I will use an alias. I have seen Mr. Bell's website and the fees he is charging for printed art is obscene. I understand that he has copyrighted his product and his a legal claim. The internet is full of plagiarism and most people do not understand the laws or opt to ignore them. Mr. Bell took those pictures and owns the rights. End of story. His site could do a better job of explaining that he will hound you for any copyright issues.
    • Picture
      Who's he going to sue next, little school children who use the picture for a project?
    • Typical attorney.
      Just throw a generic photo out into the internet with no copyright, no trademark and no metadata and then pounce on unsuspecting users with antiquated copyright laws. The attorney profession certainly earns its perjorative reputation honestly.
    • stock site
      there are plenty of gorgeous indy photos out there...here are a few. use them. http://www.thinkstockphotos.com/search/#indianapolis/s=DynamicRank/f=CPIHVX
    • Ugly photo?
      @ Hey - Indianapolis IS tiny and suburban. We're not New York or Chicago and don't proclaim to be. This photo is great!
    • How about
      They should pay people NOT to use that photo. It makes the downtown look tiny and suburban. There are much better angles from which the City could be photographed anyway.
      • Lawyers
        And some people wonder why lawyers are so despised.... the picture is ugly btw. There are much better shots of the skyline from the canal.
      • LOL
        No wonder there are so many jokes about lawyers. This article does not cast this man in a very positive light. I hope that at least some of these defendants hold out and are able to prevail. Why shouldn't HE have to provide ownership of the photo in question? I just don't get it...
      • Picture
        Nothing new here. Just another way for these type of Attorneys to suck additional dollars!This stuff happens every day!

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