456 F.Supp.3d 1046
S.D. Ind.2020Background:
- Plaintiff Richard N. Bell is the registered copyright owner of a photograph of the Indianapolis skyline (the Photo).
- Merchants Bank contracted Sonar Studios to build its website; Sonar supplied most images and the website launched in January 2015.
- The Photo was stored in the website media library on a server Merchants leased and was displayed on Merchants’ site (including a March 13, 2017 blog post).
- Merchants’ website bore a sitewide footer: “© Copyright 2017 Merchants Bank. All Rights Reserved.”
- Bell discovered the Photo on Merchants’ site in December 2017, sent a takedown notice on Dec. 14, and Merchants removed the Photo the next day; Bell sued Merchants for copyright infringement.
- Sonar (the developer/uploader) has been dismissed; cross-motions for summary judgment were filed on infringement and willfulness.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Merchants infringed Bell’s copyright by displaying the Photo | Bell: he owns a valid copyright and Merchants displayed the Photo without a license | Merchants: Sonar uploaded the Photo; Merchants merely linked to media library and did not copy | Held: Infringement — Merchants stored/controlled the Photo on its leased server and displayed it on its site, so liability established |
| Whether Merchants’ infringement was willful | Bell: sitewide copyright notice supports inference Merchants knew or recklessly disregarded rights | Merchants: site manager reasonably believed Sonar licensed images; no notice on the Photo itself; removed it promptly upon notice | Held: No willfulness — designated evidence shows no knowledge or reckless disregard; summary judgment for Merchants on willfulness granted |
Key Cases Cited
- American Family Mut. Ins. v. Williams, 832 F.3d 645 (7th Cir. 2016) (standard for evaluating cross-motions for summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden-shifting principles)
- Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017) (copyright-infringement elements)
- JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910 (7th Cir. 2007) (requirements to prove copyright infringement)
- Mid Am. Title Co. v. Kirk, 59 F.3d 719 (7th Cir. 1995) (copyright registration creates rebuttable presumption of ownership)
- Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012) (distinguishing linking/middleman websites from hosts)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (display right and liability for stored thumbnails vs. linking)
- Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985) (reasonable but mistaken belief in a license is not a defense to infringement)
- Wildlife Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502 (7th Cir. 1994) (definition of willful infringement: actual knowledge or reckless disregard)
- Boehm v. Zimprich, 68 F. Supp. 3d 969 (W.D. Wis. 2014) (contrast on willfulness where defendants believed they were authorized)
- Broad. Music, Inc. v. CDZ, Inc., 724 F. Supp. 2d 930 (C.D. Ill. 2010) (treatment of website copyright notices in willfulness analysis)