With respect to copyrights, in general, the author of a work can file for a Certificate of Registration under the federal Copyright Act. An experienced San Diego corporation attorney can help. The advantage of obtaining a Certificate of Registration is that the owner of the copyright can then file lawsuits in federal court to prevent infringement and collect damages. Indeed, the owner of a copyright cannot begin a lawsuit without receipt of the Certificate. Legally, the Certificate is presumptive evidence that the copyright is valid and of copyright ownership. However, the Certificate is only a legal presumption. A “presumption” is a fact that a judge/jury can be assumed to be true unless the opposing side proves that the fact is not true.

An interesting case was recently decided by a federal jury in Indianapolis that illustrates the point. That case involved a photograph of the skyline of Indianapolis. The plaintiff, Richard Bell, claimed that he had taken the photograph at issue and that the photograph was used without his permission. He claimed that he filed for a copyright and obtained a Certificate of Registration. However, the jury made a determination that Bell had not, in fact, taken the photo. As such, the legal presumptions were proven false.

Supposedly, Bell took the photo at issue on March 8, 2000. The photo shows the Indianapolis skyline from a certain vantage point. The image shows a sunny day with the skyline in the background. In the foreground is a beautiful park with lush grass, full green leafy trees, and a happy fountain spewing frothy water into the air over a reflecting pool. Bell also supposedly took a second photo at night from the same location on that particular March day. According to Bell, he copyrighted the photo in 2001.

In 2014, according to Bell, a real estate company in Indianapolis, Carmen Commercial Real Estate Services (“Carmen”), used “his” photograph in a blog post. Bell contacted Carmen and demanded payment of $5,000 for unlawful use of the photo. Over the years, Bell had contacted hundreds of other people and companies about their alleged infringing use of the photograph. He admitted during trial that he has received over $300,000 in payments from those who have used the photograph.

However, Carmen was not willing to pay $5,000 for their alleged infringement. As a result, Bell sued them. In response, Carmen challenged the validity of the copyright and whether Bell actually took the photograph as he claimed. In other words, Carmen set out to disprove the legal presumptions that were inherent in Bell’s Certificate of Registration. Carmen first noted that, in early March, Indianapolis is generally just coming out of winter. During the winter, many types of trees, like those depicted in the photo, drop their leaves, grass tends to be yellow, and water fountains are non-functioning (since the water might freeze, pipes might burst, etc.). Indeed, Carmen provided evidence that the fountain in the photo was not activated by the City until April 2000. Because of this, Carmen argued that the photo, containing green grass, fully-leafed trees, and a running fountain, could not have been taken in March in Indianapolis. Furthermore, the companion photo taken at night is very different. The trees in the night-time photo are bare and no fountain is running.

The foregoing was sufficient for the jury to find that Bell did not take the photo as he claimed and did not own the copyright to the photograph. So, victory was awarded to Carmen. Under the Copyright Act, Carmen can now seek recovery of attorneys’ fees and costs from Bell which are reported to be over $160,000. It should be noted that Bell has asked the judge for a new trial and, if denied, Bell has the opportunity to appeal the jury verdict.

Contact San Diego Corporate Law

If you need legal advice and services related to registering copyrights or protecting your company’s other intellectual property, contact Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard focuses his practice on business law, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard can be reached at (858) 483-9200 or via email. Like us on Facebook.

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