United States District Court, S.D. Alabama, Southern Division
RICHARD N. BELL, Plaintiff,
SANDY FROST, et al., Defendants.
K. DUBOSE, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion for
summary judgment (Doc. 20) and Defendants' Response (Doc.
Findings of Fact
a copyright infringement claim about a 2000 photograph of the
Indianapolis skyline taken by Plaintiff Richard N. Bell
(Bell) and allegedly used on a website by
Defendants Sandy Frost (Frost) and Roberts Brothers, Inc.
(RB). Per Bell, he composed, created, and
copyright-registered a 2000 photograph of the Indianapolis
skyline (the photograph). Bell first published the photograph
in August 2000 via the online service Webshots, later
published the photograph at richbellphotos.com (on-line photo
gallery created via SmugMug), and since 2004, sold commercial
license(s) for the photograph. On August 4, 2011, Bell
registered his copyright in the photograph with the U.S.
Copyright Office, Registration #VA0001785115.
alleged in the Complaint, in December 2017, Bell discovered
unauthorized use of the photograph at
(webpage), which featured the photograph on a page
advertising Frost's real estate business with RB and
contained a copyright notice reading "©1995-2019
National Association of REALTORS and Move, Inc. All rights
reserved." Per Bell, publicly available ICANN WHOIS and
GoDaddy WHOIS records as of July 1, 2019, reflect: the domain
REALTOR.COM was registered with domain registrant
uniregistrar.com the registrant of the domain was REALTORCOM;
the Name Servers for the website located at the domain are
<SELL.INTERNETTRAFFIC.COM>, indicating uniregistrar.com
hosts the <REALTOR.COM> website; and within
REALTOR.COM, Frost controls the webpage. Bell claims that
Frost and RB have complete control of the website and webpage
(create, maintain, authorize use of the photograph, etc.). On
December 14, 2017, Bell notified Frost in writing about the
infringement on the photograph and demanded payment for
unauthorized use; Frost refused. Bell also demanded that
Frost remove the photograph from her website; the photograph
was not removed. As of April 19, 2019, Frost's webpage
still featured the photograph. Bell initiated this copyright
infringement action against Frost and RB on May 10, 2019.
contrast, Defendants contend neither Frost not RB created,
controlled, authorized and/or maintained the website/webpage.
Rather all of this was accomplished by realtor.com, without
Frost input or knowledge. (Doc. 22-1 (Aff. Frost); Doc. 22-2
also contend that the claims against Frost and RB have been
previously released. Defendants explain that Bell filed an
identical claim against the National Association of Realtors
regarding the same photograph in the Southern District of
Indiana. The case was dismissed with prejudice after Bell
settled for $15, 000. In return for the settlement award,
Defendants contend that Bell released the National
Association of Realtors and its members from any liability
for the use of the photograph. Frost and RB are members of
the National Association of Realtors.
Standard of Review
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Rule 56(c) provides as follows:
(1) Supporting Factual Positions.
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible ...