BELL v. TAYLOR et al

Filing 156

ENTRY ON DEFAULT JUDGMENT - Mr. Bell's 149 Motion for Default Judgment against National Communications Company, LLC is GRANTED in part and DENIED in part. Mr. Bell is awarded statutory damages in the amount of $2,500.00 against NCC and Mr. Bell shall take nothing for his claim of treble damages for conversion. **SEE ENTRY** Signed by Judge Tanya Walton Pratt on 6/17/2014. (ADH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD N. BELL,
Plaintiff,
v.
NATIONAL COMMUNICATIONS
COMPANY, LLC,
Defendant.

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) Case No. 1:11-cv-00766-TWP-DKL
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ENTRY ON DEFAULT JUDGMENT
This matter is before the Court on Plaintiff Richard N. Bell’s (“Mr. Bell”) Motion for
Default Judgment (Dkt. 149). On June 21, 2013, a Clerk’s Entry of Default (Dkt. 138) was
entered on Defendant National Communications Company, LLC (“NCC”). As of the date of this
Entry, NCC has failed to answer or defend this cause. Mr. Bell now seeks statutory damages and
entry of default judgment against NCC in the amount of no less than $5,000.00.
I. DISCUSSION
Having found that NCC has failed to answer or defend this cause, the Court agrees that
entry of default judgment is warranted. This will require the resolution of all claims against
NCC, and a determination of what relief is appropriate. Mr. Bell seeks statutory damages,
injunctive relief and treble damages for conversion. The Court will address each request in turn.
A.

Copyright Infringement
The Copyright Act provides that a plaintiff can receive an award of statutory damages—

in lieu of actual damages and profits—“in a sum not less than $750 or more than $30,000” for
each infringement. 17 U.S.C. § 504(c)(1). If the copyright infringement is willful, “the court in
its discretion may increase the award of statutory damages to an award of not more than

$150,000.” 17 U.S.C. § 504(c)(2). The Court has the discretion to assess damages within these
statutory limits. See F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231–32
(1952); F.E.L. Publ’ns, Ltd. v. Catholic Bishop of Chi., 754 F.2d 216, 219 (7th Cir. 1985). In
exercising its discretion to determine statutory damages, the Court considers factors including:
(1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3)
the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties;
(5) the infringer’s cooperation in providing evidence concerning the value of the infringing
material; and (6) the conduct and attitude of the parties. Bryant v. Media Right Prods., Inc., 603
F.3d 135, 144 (2d Cir. 2010). Having considered these factors, the Court does not find the
copyright infringement to have been “willful” because Mr. Bell requests statutory damages well
under $30,000.00 per violation. John Wiley & Sons, Inc. v. Williams, No. 12Civ.0079(PKC),
2012 WL 5438917 (S.D.N.Y. Nov. 5, 2012).
The photograph at the center of this copyright dispute, a photograph of the Indianapolis
skyline, was first published on the World Wide Web by Mr. Bell on August 29, 2000. However,
the photograph was not registered with the United States Copyright Office until August 4, 2011.
The photograph is available for purchase from Mr. Bell’s website, www.richbellphotos.com, for
$200.00. In May and June 2011, Mr. Bell discovered through the computer program “Google
Images” that a website operated by NCC had published the photograph without paying for its
use. After discovering the copyright infringement, Mr. Bell notified NCC in writing of the
infringement and demanded that it pay for the unauthorized past use of the photograph. NCC
refused to pay for the photograph. Having considered the discretionary factors, the Court finds
that a just award of damages will consist of statutory damages of $2,500.00. Thus, the Court will
award statutory damages of $2,500.00 against NCC.

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Pursuant to the Copyright Act, the Court may grant injunctions “on such terms as it may
deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). Here,
monetary damages are insufficient to compensate Mr. Bell for his injury because monetary
damages will not prohibit future infringement. The only hardship NCC will suffer from the
imposition of an injunction is the inability to engage in further unlawful activity through
unauthorized use of the copyrighted photograph. An injunction will serve the public interest by
protecting copyrighted material and encouraging compliance with federal law. The appropriate
injunction will prohibit NCC from posting the photograph on their website and will remain in
effect only so long as the statutory damages awarded herein remain unpaid.
B.

State Law Conversion
Indiana’s criminal conversion statute states that a “person who knowingly or intentionally

exerts unauthorized control over property of another person commits criminal conversion.” I.C.
§ 35-43-4-3(a). Indiana law permits a plaintiff who has suffered a pecuniary loss as a result of a
violation of I.C. § 35-43-4-3 to bring a civil conversion claim under I.C. § 34-24-3-1. “To
prevail on their civil conversion claim, the [plaintiff] must prove the elements of the criminal
conversion by a preponderance of the evidence.” IP of W. 86th St. 1, LLC v. Morgan Stanley
Mortg. Capital Holdings, LLC, 686 F.3d 361, 370 (7th Cir. 2012). However, the Copyright Act
preempts “all legal or equitable rights that are the equivalent to any of the exclusive rights within
the general scope of copyright” and “no person is entitled to any such right or equivalent right in
any such work under the common law or statutes of any State.” 17 U.S.C. § 301. The rights of a
copyright owner are “reproduction, adaptation, publication, performance, and display of the
copyrighted work.” Seng-Tiong Ho v. Taflove, 648 F.3d 489, 501 (7th Cir. 2011) (internal
quotation marks omitted). Because the Indianapolis photograph is clearly under the scope of the

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Copyright Act, the Court’s analysis is focused on whether Mr. Bell’s state law conversion claim
“is based on a right equivalent to those under the Copyright Act.” Id.
Mr. Bell’s Complaint alleges that NCC knowingly and intentionally exerted control over
the photograph. The Complaint does not allege any additional facts specific to the conversion
claim, but only incorporates the facts alleged under the copyright claim. Specifically, those facts
are that NCC downloaded and published the Indianapolis photograph. The Court finds that Mr.
Bell has not sufficiently alleged a right apart from the Copyright Act and his state law conversion
claim is preempted. He is therefore not entitled to damages or judgment on his conversion claim.
II. CONCLUSION
Mr. Bell’s Motion for Default Judgment (Dkt. 149) is GRANTED in part and DENIED
in part. Mr. Bell is awarded statutory damages in the amount of $2,500.00 against NCC and Mr.
Bell shall take nothing for his claim of treble damages for conversion.
SO ORDERED.
06/17/2014
Date: _____________

DISTRIBUTION:

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Richard N. Bell
BELL LAW FIRM
[e-mail]
David F. Hurley
HURLEY & HURLEY PC
[e-mail]
John W. Nelson
LAW OFFICE OF JOHN NELSON
[e-mail]

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