On July 24, the Court denied summary judgment to both sides in a dispute over whether the defendant violated a lawyer's copyright in a photo of the Indianapolis skyline.
Indianapolis lawyer Richard Bell has been suing hundreds of people for copyright infringement for using the photo of the Indianapolis skyline on their websites, blogs and elsewhere, without payment (some would say tribute"). But turns out, he may not have the copyright on the photo after all.
That's the position of the defendant, forensic consultant Michael Maloney.
There is no question that Bell took the photo in 2000 with his own camera. There is no question that he filed to copyright the photo in 2011. two years after he left his longtime employment with Indianapolis law firm Cohen & Malad.
But at the time Bell took the photo, he was employed by Cohen and Malad. He took the photo for the firm's website, which was being compiled by West Publishing.
Because Bell took the photo while employed at Cohen & Malad, an issue of fact exists as to whether it was a "work for hire" and that the copyright belonged to the law firm, not the lawyer who took the photo.
Work for hire is a basic doctrine of copyright and patent law. When a staff scientist invents an better widget, the scientist doesn't own the patent. Instead it belongs to the company who employed him. Same is true with a staff writer who authors an article for a magazine.
The case of Bell v. Michael Maloney will now be set for trial in the United States District Court in Indianapolis, at which time ownership of the copyright will be determined.
LESSONS: There are several important lessons in this case.
1. Most importantly, it reaffirms the importance of having ownership or a license for the art work you use on your website, blog or elsewhere. You cannot simply copy a photo from someone else's website and use it. That's how Bell was operating his cottage industry of enforcing hefty payments for those who unwittingly used the skyline of Indianapolis photo.
2. Even if you are successful in defending your use of a photo, it is VERY EXPENSIVE. Defending cases in federal court is not cheap.
3. If you undertake to write a story or take a photo for someone, or even if you hire someone to design a website for your, make sure you have a contract which specifies whether it is, or is not, a work for hire.