Bell v. Frost

          ORDER

          KRISTI K. DUBOSE, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's motion for summary judgment (Doc. 20) and Defendants' Response (Doc. 22).^[1]

         I. Findings of Fact^[2]

         This is a copyright infringement claim about a 2000 photograph of the Indianapolis skyline taken by Plaintiff Richard N. Bell (Bell)^[3] 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.

         As alleged in the Complaint, in December 2017, Bell discovered unauthorized use of the photograph at https://www.realtor.com/realestateagents/sandy-frost8525391994788 (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 <BUY.INTERNETTRAFFIC.COM> and <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. (Doc. 1).

         In 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 (Aff. Dennis)).

         Defendants 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.

         II. Standard of Review

         “The 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:

(c) Procedures

(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 ...