BELL v. ROYAL CORNICHE TRAVEL LTD. et al

Filing 164

ENTRY ON DEFAULT JUDGMENT - Mr. Bell's 162 Motion for Default Judgment against Lon Dunn is GRANTED in part and DENIED in part. Mr. Bell is awarded statutory damages in the amount of $2,500.00 against Mr. Dunn and shall take nothing for his state law claim of conversion. **SEE ENTRY** Copy mailed. 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.
LON DUNN,
Defendant.

)
)
)
)
) Case No. 1:13-cv-00035-TWP-DKL
)
)
)
)

ENTRY ON DEFAULT JUDGMENT
This matter is before the Court on Plaintiff Richard N. Bell’s (“Mr. Bell”) Motion for
Default Judgment (Dkt. 162). On September 11, 2013, a Clerk’s Entry of Default (Dkt. 160) was
entered on Defendant Lon Dunn (“Mr. Dunn”).

As of the date of this Entry, Mr. Dunn has

failed to answer or defend this cause. Mr. Bell now seeks statutory damages and entry of default
judgment against Mr. Dunn in the amount of no less than $5,000.00.
I. DISCUSSION
Having found that Mr. Dunn 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
Mr. Dunn, 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 December 2012, Mr. Bell discovered through the computer program “Google
Images” that a website operated by Mr. Dunn had published the photograph without paying for
its use. After discovering the copyright infringement, Mr. Bell notified Mr. Dunn in writing of
the infringement and demanded that he pay for the unauthorized past use of the photograph. Mr.
Dunn 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 Mr. Dunn.

2

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. Dunn 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. Dunn from posting the photograph on his 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

3

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. Dunn 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. Dunn 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. 162) is GRANTED in part and DENIED
in part. Mr. Bell is awarded statutory damages in the amount of $2,500.00 against Mr. Dunn
and shall take nothing for his state law claim of conversion. The resolution of the claims against
the defaulted Defendants leaves two remaining Defendants 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.
SO ORDERED.

06/17/2014
Date: ____________

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

4

DISTRIBUTION:
William Mclaws
701 - 1937 Pendrell Street
Vancouver, BC V6G 1T4
Richard N. Bell
BELL LAW FIRM
[e-mail]
Belinda R. Johnson-Hurtado
CLENDENING JOHNSON & BOHRER P.C.
[e-mail]
Lonnie D. Johnson
CLENDENING JOHNSON & BOHRER, P.C.
[e-mail]
Holiday W. Banta
ICE MILLER LLP
[e-mail]
Paul B. Overhauser
OVERHAUSER LAW OFFICES, LLC
[e-mail]

5