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Bell v. Med Preps LLC

United States District Court, E.D. Missouri, Eastern Division

November 4, 2019

RICHARD N. BELL, Plaintiff,
v.
MED PREPS LLC, Defendant.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion to Dismiss. (ECF No. 11). The matter is fully briefed and ready for disposition.

         BACKGROUND

         On July 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.

         In 2018 or 2019, the Plaintiff discovered that the Defendant had published the Indianapolis Photo in an advertisement on its website without authorization to do so.[1] 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 ¶ 20.

         On 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.

         DISCUSSION

         The 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).

         Defendant 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).

         For the 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 ...


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