Ninth Circuit Overturns Lower Court Ruling on Photo of Indianapolis Skyline
Steven T. Lowe
On September 9th, 2021, a three-judge panel of the Ninth Circuit Court of Appeals overturned a lower court decision in a dispute between a former attorney and a storage company in Los Banos, California. Richard Bell (“Bell”) sued Wilmott Storage Services LLC (“Wilmott”) for posting an exact copy of a photo of the Indianapolis skyline, which Bell claims he owns, on a website owned by Wilmott. To uncover the alleged infringement, Bell stated that he conducted a reverse image search.
Wilmott argued, and the lower court agreed, that its use of the photo was “de minimis” because the webpage on which the photo was posted is inaccessible to most users on Wilmott’s website. The “de minimis use” defense allows the use of a copyrighted work when the part of the copyrighted work that was taken is trivial or minor. In this case, the Ninth Circuit ruled that the lower court incorrectly conducted its analysis of Wilmott’s “de minimis use” defense. The Ninth Circuit explained that the “de minimis use” defense only applies to the amount of the copyrighted work that was used, rather than how the work was used. The Ninth Circuit found that “[w]holesale copying or reproduction of another’s protected work, like the Indianapolis photo, by definition cannot be de minimis copying.” In other words, Wilmott cannot use the “de minimis use” defense as an excuse because it used Bell’s entire photograph.
The Ninth Circuit’s decision was unanimous. However, two of the three judges filed concurring opinions which seriously critiqued Bell’s intentions in filing his copyright infringement suit. The concurring opinions pointed to a separate case from 2019 in which a jury found that Bell did not own the copyright of the photo in question. Circuit Judge Richard Clifton referred to Bell as a “copyright troll” and suggested that Bell was more focused on litigating infringement claims related to the photo than licensing the right to use the photo. Notably, Bell “has filed over 100 copyright infringement cases concerning the Indianapolis photo, a number that exceeds 200 when combined with suits concerning a different photo that he took of the Indianapolis skyline.”
Bell is represented by Gregory Keenan and Andrew Grimm of the Digital Justice Foundation Inc., and Ryan A. Hamilton of Hamilton Law LLC.
Wilmott is represented by Paul D. Supnik of the Law Offices of Paul D. Supnik.
The case is Bell v. Wilmott Storage Services, LLC, case number 19-55882, in the U.S. Court of Appeal for the Ninth Circuit.
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