430 F.Supp.3d 718
D. Or.2019Background:
- Bell, a photographer, sued Michael J. Davis and three related entities for allegedly using Bell’s Indianapolis skyline photograph on two ticketing websites without authorization.
- Bell claims he created the photo ~2000 and registered it with the Copyright Office in 2011 (Reg. No. VA0001785115); he discovered the alleged uses in 2017 and sent a demand letter; defendants never answered.
- Magistrate Judge entered default; Bell moved for default judgment seeking $150,000 statutory damages, fees, costs, and an injunction.
- Bell has filed hundreds of similar suits over the same skyline photo; in Bell v. Carmen (S.D. Ind.) a jury found Bell did not own a valid copyright in the same photo.
- The district court took judicial notice of the Carmen record, concluded issue preclusion applies to the question of Bell’s ownership, found the Eitel factors unfavorable, denied default judgment, and dismissed the action.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment should be entered | Default entered; Bell requests statutory damages, fees, injunction | Defendants did not appear or contest; prior adverse ruling undermines Bell | Denied: court exercised discretion under Eitel and declined default judgment |
| Whether Bell owns a valid copyright in the skyline photo | Bell asserts he authored and registered the photo (VA0001785115) | Carmen jury already found Bell did not author/own/register the photo | Issue preclusion bars relitigation; Bell cannot establish ownership, a necessary element |
| Whether the Carmen verdict is a final judgment for preclusion | Bell: not final because Rule 59 motion and possible appeal are pending | Court: pending post-trial motions/appeals do not defeat finality for preclusion | Carmen judgment is sufficiently final for collateral estoppel while Rule 59 motion remains undecided |
| Whether presentation of a work-for-hire defense in Carmen defeats preclusion | Bell: work-for-hire was improperly allowed and so Carmen should not preclude him | Court: Ninth Circuit allows defensive use/challenge to ownership by third parties in some contexts | Work-for-hire defense in Carmen does not negate preclusive effect of that judgment |
Key Cases Cited
- Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (factors guiding courts on default-judgment discretion)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991) (elements of copyright infringement: ownership and copying)
- Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006) (judicial notice of other-court records for preclusion analysis)
- Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146 (9th Cir. 2010) (limits and context for third-party invocation of work-for-hire issues)
- Tripati v. Henman, 857 F.2d 1366 (9th Cir. 1988) (pending Rule 59 motion or appeal does not always defeat finality for preclusion)
- DRK Photo v. McGraw-Hill Global Educ. Holdings, LLC, 870 F.3d 978 (9th Cir. 2017) (third parties challenging copyright ownership for standing/ownership disputes)
- TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 (9th Cir. 1987) (default-judgment procedure and evidentiary hearings)