Copyright Troll Loses Jury Trial… Which Might Lead To Him Paying Legal Fees In Multiple Lawsuits

from the shame-about-that-business-model dept

A one-man copyright trolling empire has just crashed into a federal court iceberg. Richard Bell, photographer and [checks filing] attorney, has gone after anyone and everyone who has possibly used “his” photograph of the Indianapolis skyline for anything ever.

Unlike 99.9% of copyright trolling cases, this one actually gave Richard Bell the jury trial he no doubt demanded in his complaint. Unfortunately for Bell, the jury didn’t give him what he wanted. Even worse for Bell (but better for the defendants in his still-unresolved lawsuits), the jury said Bell failed to prove he owned the copyright to the photo he’s sued hundreds for using. This report comes from Dave Stafford of Indianapolis Business Journal who, unlike countless others picking up the AP feed, a.) included the document and b.) spoke to the defendant’s lawyer. (Kudos on both, Dave!)

A federal jury in Indianapolis ruled against an attorney photographer Tuesday who has sued hundreds of people for using his online photo of the city’s sunny skyline.

The verdict raised dark clouds over the presumption that the lawyer owns a legitimate, enforceable copyright of the photo.

Jurors ruled against attorney and photographer Richard Bell of Fishers, who sued Carmen Commercial Real Estate Services in 2016. The jury answered “no” to this decisive question: “Do you find that by a preponderance of the evidence that Richard N. Bell authored the Indianapolis Skyline Photo, that he owns a copyright in it, and that he registered it with the Copyright Office?”

The jury’s one-question denial can be found here [PDF]. This denial raises questions about the photo’s ownership. The defendant’s lawyer, Paul Overhauser, says this ruling could lead to every other person/entity being sued by Bell moving for dismissal and demanding the lawyer/troll pay their legal fees.

“Because the jury found that Bell does not own the photo, this is finding is ‘res judicata.’ That means that all the other defendants that Bell has sued across the country should be able to use this jury finding to get their cases automatically decided their favor,” Overhauser said. “And since copyright suits are one of the few types where a ‘prevailing party’ can recover its attorney’s fees, Bell is likely to be ordered to pay the attorney’s fees for all of those defendants.”

Yes, good times await the man who has extracted an untold amount of possibly bogus settlements from defendants over the past few years. Hopefully, he socked those funds away in something easily-escrowable. Overhauser and his client, Carmen Commercial Real Estate Services, isn’t the first to challenge the legitimacy of Bell’s copyright claim. But he’s the first to persuade a jury that Bell likely does not own the copyright to the photo at the center of Bell’s questionable business model.

The operating theory is that Bell took this photo while employed at his former law firm. If so, the copyright probably belongs to the law firm under the “work for hire” theory. In any event, Carmen Real Estate likely had a legitimate fair use defense. The only appearance of Bell’s photo was in a blog post by the company about economic development, using it to contrast Indianapolis’ skyline with Chicago’s.

In this case, the specifics were a bit more… specific.

“A week or so before the trial, I tracked down the people that maintain the fountains in the Canal Walk – the Indianapolis Marion County Building Authority. They were able to supply me with page 11 from their ‘Canal Maintenance Specification.’ It confirmed that they do not turn on the Canal Walk fountains until April 1 of each year,” Overhauser said. “… So in the end, the water fountain proved fatal to Mr. Bell’s case.”

That’s some first class defending. It was enough to create a reasonable doubt about the photo’s origin, given Bell’s assertions about when he took it. A little vagueness about a copyrighted work’s origin is about all it takes. Trolls know this. That’s why so many move to dismiss cases if it looks they’re going to have to respond to discovery requests or take their chances with a jury.

Carmen Real Estate took the photo down after being notified of the lawsuit and even offered Bell a $1,000 payment for its one-time use in a blog post. Bell refused. And now that might cost him far more than the $350 he spent filing this questionable lawsuit.

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Comments on “Copyright Troll Loses Jury Trial… Which Might Lead To Him Paying Legal Fees In Multiple Lawsuits”

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16 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

'I own it, promise' doesn't cut it

If you’re going to demand money in a lawsuit over a copyright you claim to own, step one should be to get and provide irrefutable evidence that you actually own that copyright.

To faceplant at the very start, and on the most important question… just priceless.

Anonymous Coward says:

Re: 'I own it, promise' doesn't cut it

If you’re going to demand money in a lawsuit over a copyright you claim to own, step one should be to get and provide irrefutable evidence that you actually own that copyright.

The scariest part is that American lawyers handled many of the foreclosures of people’s homes during the subprime mortgage collapse of 2007 with a similar lack of due diligence. As long as the victim is an unrepresented party, no one cares.

Tanner Andrews (profile) says:

Re: Re: 'I own it, promise' doesn't cut it

The scariest part is that American lawyers handled many of the foreclosures of people’s homes during the subprime mortgage collapse of 2007 with a similar lack of due diligence

The second scariest part is that people think this has changed since then. And the third scariest part is that judges actually accept the bank testimony in these cases despite over a decade of history since that time

In a much longer response, I could probably explain to you why foreclosure plaintiffs’ attorneys and their clients have rigged the law so as to avoid any risk of jury trials.

Tanner Andrews (profile) says:

Re: [wrong thread]

Something tells me the previous two comments went to the wrong thread via some technological magic

I bet they went to the right thread, because the issues are certainly similar. You have, on the one hand, unsupported and likely-incorrect claim of ownership; on the other hand, you have unsupported and likely-incorrect claim of ownership.

Different claimant, but same issue, and possibly instructive as to why the well-connected prefer to avoid jury trials. Either a copyright claimant, or a foreclosure claimant, reasonably expects to do worse facing a jury where the judge is expected to follow the rules of evidence.

Anonymous Coward says:

work for hire?!

"The operating theory is that Bell took this photo while employed at his former law firm. If so, the copyright probably belongs to the law firm under the "work for hire" theory." The only way this would qualify as work for hire is if he took the photo FOR said law firm, and as part of his job there. Which seems unlikely. Unless he’s a really shitty lawyer they would saddle with random tasks.

Anonymous Coward says:

Re: Re: work for hire?!

None of the stories linked made any mention of his duties at previous law firms including photography. He seems to be yet another amateur photographer that sells/licenses his work. The fact that he’s also a lawyer seems to be largely coincidental, aside from the fact that he uses this background to bludgeon people he regards as infringing. You will note that he’s not so stupid as to defend himself in this case he just lost.

Anonymous Coward says:

Sweet

The best bit is the court document:

Do you find that …

NO

If No, skip to the end and sign. Otherwise answer all these other questions …

At the bottom, after the 7 ‘not applicable’ questions, is:

We the jury hereby award The Troll …..

A zero, which I presume then had a line put through it to mean ‘not applicable’

lol !

Anonymous Coward says:

Re: Re:

This right here honestly deserves a Techdirt article onto itself. It’s the sort of plot that wouldn’t look out of place in a detective drama, or "My Cousin Vinnie"-style movie.

Not to mention the whole "copyright owner fails to prove he isn’t full of shit, news at 11" debacle. Imagine that, having to prove you own the copyright on something to demand copyright money for it! This is the sort of thing that would have Hamilton, out of the blue and John Smith screeching and wailing as they twist their own panties into a forbidden macrame knot to summon the spirit of Paul Duffy to save them.

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