BELL v. GREG BAYERS, LLC et al
ENTRY ON DEFAULT JUDGMENT - Mr. Bell's Motion for Default Judgment (Dkt. 105) is GRANTED in part and DENIED in part. Mr. Bell is awarded statutory damages in the amount of $2,500.00 against each Mr. Kirchner and Mr. Bruni, individually. T he resolution of the claims against Mr. Kirchner and Mr. Bruni leaves one remaining defendant in this action. Therefore, final judgment is not appropriate. Final judgment will not issue at this time. Signed by Judge Tanya Walton Pratt on 6/11/2014. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RICHARD N. BELL,
FRANK KIRCHNER, TEAM CHAMPION,
and ALEX BRUNI,
) Case No. 1:13-cv-00012-TWP-DKL
ENTRY ON DEFAULT JUDGMENT
This matter is before the Court on Plaintiff Richard N. Bell’s (“Mr. Bell”) motion for
Default Judgment. On September 11, 2013, a Clerk’s Entry of Default was entered against
Defendants Frank Kirchner (“Mr. Kirchner”) and Alex Bruni (“Mr. Bruni”). As of the date of
this Entry, Mr. Kirchner and Mr. Bruni have failed to answer or otherwise defend this cause. Mr.
Bell seeks statutory damages and entry of default judgment (Dkt. 105) against Mr. Kirchner and
Mr. Bruni in the amount of no less than $5,000.00.
Having found that Mr. Kirchner and Mr. Bruni have 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 Mr. Kirchner and Mr. Bruni, 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.
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 December 2012, Mr. Bell discovered through the computer program “Google
Images” that the websites of both Mr. Kirchner and Mr. Bruni had published the photograph
without paying for its use. After discovering the copyright infringement, Mr. Bell notified both
Mr. Kirchner and Mr. Bruni in writing of the infringement and demanded that each pay for the
unauthorized past use of the photograph. Mr. Kirchner never responded and Mr. Bruni alleged
that he owned the copyrights of all the images on his website. Neither Mr. Krichner nor Mr.
Bruni has paid for use of 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 Mr. Kirchner and $2,500.00 against Mr.
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 Mr. Kirchner and Mr. Bruni
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 Mr. Kirchner and Mr. Bruni from posting the
photograph on their websites and will remain in effect only so long as the statutory damages
awarded herein remain unpaid.
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 photo is clearly under the scope of the
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 Mr. Kirchner and Mr. Bruni 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 Mr. Kirchner and Mr. Bruni downloaded and published
the Indianapolis photo. 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.
Mr. Bell’s Motion for Default Judgment (Dkt. 105) is GRANTED in part and DENIED
in part. Mr. Bell is awarded statutory damages in the amount of $2,500.00 against each Mr.
Kirchner and Mr. Bruni, individually. The resolution of the claims against Mr. Kirchner and Mr.
Bruni leaves one remaining defendant in this action.
Therefore, final judgment is not
appropriate. See Smart v. Local 702 Int’l Bhd. of Elec. Workers, 573 F.3d 523, 525 (7th Cir.
2009) (“A final judgment is one that resolves all claims against all parties.”) (citing Dale v.
Lappin, 376 F.3d 652, 654 (7th Cir. 2004)). Final judgment will not issue at this time.
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
Richard N. Bell
BELL LAW FIRM
F. Joseph Jaskowiak
HOEPPNER WAGNER & EVANS LLP
Holiday W. Banta
ICE MILLER LLP
Trezanay Michelle Atkins
THE BRAND INFRINGEMENT FIRM
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