Overhauser Law Offices LLC: Provided by
Overhauser Law Offices LLC: Provided by
Overhauser Law Offices LLC: Provided by
Provided by:
Overhauser Law Offices
LLC
www.iniplaw.org
www.overhauser.com
RICHARD N. BELL
Plaintiff,
v.
A PLACE FOR MOM, INC.
Defendant.
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) Case No. 1:16-cv-2451
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COMPLAINT
Summary of lawsuit
1.
2000 and the Indianapolis Nighttime Photo was registered with the U.S.
Copyright office. In 2016, the Plaintiff discovered that Defendant A PLACE FOR
MOM, INC. (MOM) had published the Indianapolis Nighttime Photo in
advertising which appears on a website owned by the Defendant, even though the
Defendant had no rights or authority to publish the Indianapolis Nighttime Photo.
(See Exhibit B). The Plaintiff requests damages and injunctive relief against the
Defendant for violations of the U.S. Copyright laws.
JURISDICTION AND VENUE
2.
This copyright infringement action arises under 17 U.S.C. 101 et seq. This
Court has jurisdiction over this action under 28 U.S.C. 1331 (federal question), and
28 U.S.C. 1338 (acts of Congress related to copyright).
3.
This Court has personal jurisdiction over the Defendant by virtue of their
transacting, doing, and soliciting business in this District, and because a substantial
part of the relevant events occurred in this District and because a substantial part of
the property that is the subject of this action is situated here.
4.
because the named plaintiff Richard N. Bell resides in this district and because a
substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated; and/or conduct
business in this district.
PARTIES
5.
at 11317 35TH AVE SE, EVERETT, WA, 98208 and has a branch in this district in
Indiana. MOM created /or controlled a website with the domain name of
assistedliving.com
FACTS
7.
downtown Indianapolis skyline from overlooking the canal from St. Clair Avenue.
8.
law.
9.
Since March 2000, the Plaintiff has either published or licensed for publication
all copies of the Indianapolis Nighttime Photo in compliance with the copyright laws
and has remained the sole owner of the copyright.
10.
Indianapolis Nighttime Photo was first published on the World Wide Web on
August 29, 2000 by the users account on Webshots. It was recently published on a
website created by the Plaintiff under the domain name: www.richbellphotos.com
11.
The Indianapolis Nighttime Photo was registered on August 4, 2011 with the
Plaintiff and others authorized by the Plaintiff have used the Indianapolis
Plaintiff and others authorized by the Plaintiff have used the Indianapolis
assistedliving.com to promote and advertise its business and used the Indianapolis
Nighttime Photo on the website.
15.
prospective customers.
16.
Defendant is liable to Plaintiff because it had the right and ability to control
and supervise the content of assistedliving.com and to control and supervise the
access of third party Internet users to that website.
17.
Upon information and belief, the Defendant MOM downloaded or took the
Indianapolis Nighttime Photo from the internet without permission from the owner,
Richard N. Bell and copied on to a webserver controlled by the Defendant.
18.
Defendant MOM did not disclose the source of the stolen Indianapolis
Nighttime Photo or otherwise conferred credit to the owner; instead, the Defendant
willfully and recklessly falsely claimed that it owned the copyrights of all images
and photos contained on the website of including Indianapolis Nighttime Photo and
thereby disparaged the Plaintiff.
20.
During the year 2016, the website of Defendant MOM published the
Indianapolis Nighttime Photo for its commercial use without paying for said use
and without obtaining the necessary authorization from the Plaintiff, the copyright
owner.
21.
While the Defendant MOM will know the exact date of first publication,
based upon the Plaintiffs investigation, during the year 2016, Defendant began
publishing the Indianapolis Nighttime Photo and used the Indianapolis Nighttime
Photo for their commercial use without paying for said use and without obtaining
the necessary authorization from the Plaintiff.
22.
The Defendant knew that they did not own Indianapolis Nighttime Photo and
knew the Defendant had not obtained the rights to publish the Indianapolis
Nighttime Photo, but recklessly and falsely represented to the world otherwise.
23.
Defendant MOM have not paid anyone for the right to publish the
Indianapolis Nighttime Photo, but instead fraudulently declared that the Defendant
owned the copyrights to the Indianapolis Nighttime Photo.
24.
Photo.
25.
Nighttime Photo.
26.
connection with its publication of the Indianapolis Nighttime Photo, and that
Defendant publication of the Indianapolis Nighttime Photo failed to designate the
source of the stolen Indianapolis Nighttime Photo or otherwise confer credit to the
owner and thereby such conduct has disparaged the Plaintiff thus causing
irreparable damage.
27.
not capable of determination, and, unless restrained, will cause further irreparable
injury, leaving the Plaintiff with no adequate remedy at law.
28.
There is a risk of infringing conduct which has caused and will likely cause
permitted third parties to access to the webpage assistedliving.com and copy the
Indianapolis Nighttime Photo to third party Internet Users computers.
30.
Defendant MOM is vicariously liable for each such downloaded copy of the
Indianapolis Nighttime Photo initiated by each third party Internet User regardless
of whether Defendant was aware that the third party was creating the downloaded
copy.
31.
Defendant is liable for all profits resulting from each downloaded copy of the
Indianapolis Nighttime Photo created by each such third party Internet User.
32.
Defendant knew that any use of the Indianapolis Nighttime Photo would infringe
copyrights Plaintiff owns.
33.
Plaintiff has complied in all respects with 17 U.S.C. 101 et seq., and
secured the exclusive rights and privileges in and to the copyrights of the abovereferenced works.
34.
Plaintiff has been and still is the sole proprietor of all rights, title, and
result of their wrongful conduct, Defendant MOM has realized and continues to
realize profits and other benefits rightfully belonging to Plaintiff. Accordingly,
Plaintiff seek an award of damages pursuant to 17 U.S.C. 504 and 505.
38.
your copyrighted materials that, if granted, would require that the Indianapolis
Defendant MOM have willfully and deliberately engaged in, and, is willfully
engaging in, the acts complained of with oppression, fraud, and malice (Acts) and
in conscious disregard of the rights of Plaintiff. Plaintiff is, therefore, entitled to the
maximum statutory damages allowable.
41.
Examples of these willfully and deliberately Acts, include but not limited to
the following:
a. Defendant downloaded or took the Indianapolis Nighttime Photo from
the internet and included said photo on the Defendants website.
b. Defendant failed to designate the source of the stolen Indianapolis
Nighttime Photo or otherwise confer credit to the owner.
c. Defendant recklessly, willfully and falsely asserted that the Defendant
owned the copyrights of all content, images and photos contained in the
Defendants website including Indianapolis Nighttime Photo.
d. Defendant knew that it did not own Indianapolis Nighttime Photo and
knew the Defendant had not obtained the rights to publish the
Indianapolis Nighttime Photo, but deliberately and falsely represented
to the world otherwise.
e. Defendant has not paid anyone for the right to use Indianapolis
Nighttime Photo, but instead fraudulently declared that the Defendant
owned the copyrights to the Indianapolis Nighttime Photo.
42.
As a consequence of this dispute between the parties as to the rights, title, and
interest in the copyrighted articles described above, and pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. 2201 and 2202, Plaintiff also seek a
resolution of this ongoing controversy by a declaration of this Court as to the rights
of the respective parties in this matter.
THEREFORE, Plaintiff prays for judgment against Defendant MOM as follows:
a. Declaring that Defendants unauthorized conduct violates Plaintiffs
rights under common law and the Federal Copyright Act;
b. Immediately and permanently enjoining Defendant MOM, their
members, officers, directors, agents, servants, employees,
representatives, attorneys, related companies, successors, assigns, and
all others in active concert or participation with them from copying and
republishing any of Plaintiffs copyrighted articles or copyrighted
material without consent or otherwise infringing Plaintiffs copyrights
or other rights in any manner;
c. Enjoin Defendant from republishing any of your copyrighted
materials that, if granted, would require that the Indianapolis
Nighttime Photo not be available on assistedliving.com which would
thereby make it impossible for third party Internet users to download
copies of the Indianapolis Nighttime Photo from said webpage.
d. Ordering Defendant MOM to account to Plaintiff for all gains, profits,
and advantages derived by Defendant, and third party users by their
Respectfully Submitted:
Date: September 14, 2016
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