United States District Court, E.D. Missouri, Eastern Division
RICHARD N. BELL, Plaintiff,
MED PREPS LLC, Defendant.
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Dismiss. (ECF No. 11). The matter is fully briefed and ready
19, 2019, Plaintiff Richard Bell filed a Complaint against
Defendant Med Preps LLC in this case for copyright
infringement under 17 U.S.C. §101 et seq. (ECF No. 1,
¶ 2). Plaintiff alleges that he took a photograph of the
Indianapolis skyline in March of 2000 (hereinafter “the
Indianapolis Photo”). Id., ¶¶ 1, 7.
The Indianapolis Photo was first published on the internet on
August 29, 2000 by the Plaintiff on “Web Shots”
and was recently published on a website created by the
Plaintiff under the domain name: www.richbellphotos.com.
Id., at ¶10. Plaintiff alleges that the Photo
was registered with the U.S. Copyright Office on August 4,
2011, and was assigned Registration Number VA0001785115.
Id. ¶¶ 1, 11. Plaintiff asserts that since
March 2000 he has published or licensed all copies of the
Photo in compliance with copyright laws and has remained the
sole owner of the copyright. Id., at ¶ 9.
or 2019, the Plaintiff discovered that the Defendant had
published the Indianapolis Photo in an advertisement on its
website without authorization to do so. Id., at
¶ 1, 18. Plaintiff alleges that the Defendant utilized
the Indianapolis Photo on their website:
www.worldpopulationstatistics.com to attract prospective
customers to Defendant's business in Indianapolis.
Id., ¶¶ 14-15. Plaintiff alleges that the
Defendant, beginning in 2014, published the Indianapolis
Photo for commercial use without paying for its use, or
obtaining authorization from the Plaintiff. Id., at
October 1, 2019, the Defendant filed a Motion to Dismiss
alleging defensive collateral estoppel. (ECF No. 11). On
October 2, 2019, the Plaintiff filed its Response challenging
Defendant's defensive collateral estoppel and alleging
offensive collateral estoppel. (ECF No. 15). Plaintiff asked
for leave to supplement his response to the Motion to Dismiss
on October 23, 2019. (ECF No. 22). The Court granted the
motion on October 24, 2019. (ECF No. 23). The Defendant filed
its Reply on October 29, 2019.
Copyright Act of 1976 provides that:
the owner of a copyright…has the exclusive rights to
do and to authorize any of the following: (1) to reproduce
the copyrighted work in copies…; (3) to distribute
copies of the copyrighted work to the public…and (5)
in the case of …pictorial…works…to
display the copyrighted work publicly.
Kennedy v. Gish, Sherwood & Friends, Inc., 143
F.Supp.3d 898, 904 (E.D. Mo. 2015)(citing 17 U.S.C. §
106 (2002)). “To establish copyright infringement, a
plaintiff must demonstrate that he owns a valid copyright and
that the defendant has copied, displayed, or distributed
protected elements of the copyrighted work without
authorization.” Kennedy, 143 F.Supp.3d, at
904, citing Mulcahy v. Cheetah Learning LLC, 386
F.3d 849, 852 (8th Cir. 2004).
argues that Plaintiff's case should be dismissed on the
basis of collateral estoppel as to the first element of
copyright infringement, ownership. (ECF No. 11). “Under
the doctrine of collateral estoppel, … ‘when an
issue of fact or law is actually litigated and determined by
a valid and final judgement, and the determination is
essential to the judgement, the determination is conclusive
in a subsequent action between the parties, whether on the
same or a different claim.'” Turner v. U.S.
Dept. of Justice, 815 F.3d 1108, 1111 (8th Cir.
2016)(citing, Restatement (Second) of Judgements § 27
(Am. Law Inst. 1982)). The Eight Circuit has held that for
collateral estoppel to apply five elements must be met:
(1) The party sought to be precluded in the second suit was a
party … in the prior suit; (2) the issue sought to be
precluded is the same as the issue involved in the prior
action; (3) the issue was “actually litigated” in
the prior action; (4) the issue was determined by a valid and
final judgement; and (5) the determination in the prior
action was “essential to the judgement.
Turner, 815 F.3d at 1111 (citing Morse v.
Comm'r, 419 F.3d 829, 834 (8th Cir. 2005).
purposes of collateral estoppel, the Defendant asks the court
to take judicial notice of the jury verdict in Richard N.
Bell v. Carmen Commercial Real Estate Services, filed in
the United States District Court for the Southern District of
Indiana (No. 1:16-CV-01174-JRS-MPB). Defendant argues that
the verdict establishes that Plaintiff has not met the basis