Bell v. Wilmott Storage Servs., LLC

Bell v. Wilmott Storage Servs., LLC

Opinion

 [*1068]  WARDLAW, Circuit Judge:

We write to clarify the role that de minimis copying plays in statutory copyright. ] The de minimis concept is properly used to [**5]  analyze whether so little of a copyrighted work has been copied that the allegedly infringing work is not substantially similar to the copyrighted work and is thus non-infringing. However, once infringement is established, that is, ownership and violation of one of the exclusive rights in copyright under 17 U.S.C. § 106, de minimis use of the infringing work is not a defense to an infringement action. Because the district court held to the contrary, we reverse the judgment, and remand for consideration of the remaining defenses and damages issues.³

This appeal comes to us on a motion for summary judgment. ] We therefore review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor. Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1152 (9th Cir. 2012).

Richard Bell took the landscape photograph of the Indianapolis skyline (the "Indianapolis photo"), reprinted below, in March or May of 2000.⁴

 [*1069]  

At the time the Indianapolis photo was taken, Bell worked as an attorney for the Indianapolis law firm Cohen & Malad, and the photo was posted on the firm's official website at some point. Bell v. Carmen Commer. Real Estate Servs., No. 1:16-cv-01174-JRS-MPB, 2020 U.S. Dist. LEXIS 154013, 2020 WL 5016891, at *1 (S.D. Ind. Aug. 25, 2020).⁵ Bell first [**6]  published the Indianapolis photo on "Webshots.com" on August 29, 2000. But he did not register the Indianapolis photo with the United States Copyright Office until eleven years later, on August 4, 2011. Bell also published the photo on his online photo gallery "richbellphotos.com," from which Bell commercially licenses the use of his photographs.

In 2018, in an effort to monitor infringing uses of his photo, Bell ran a reverse image search⁶ on Google Images using the Indianapolis photo. Bell frequently uses reverse image searches to identify potential infringers, and he has filed over 100 copyright infringement lawsuits concerning the Indianapolis photo, a number that exceeds 200 when combined with suits concerning a different photo that he took of the Indianapolis skyline. Davis, 430 F. Supp. 3d at 721 & n.1 (citing Bell v. Barber, No:18-cv-01491, 2019 U.S. Dist. LEXIS 159756, 2019 WL 4467955, *1 n.1 (S.D. Cal. Sept. 16, 2019)). Through one  [*1070]  of these Google searches, Bell found the Indianapolis photo on a server database associated with the website VisitUSA.com. The average Internet user would not have been able to access the photograph by going to VisitUSA.com and navigating the options available on the website. Rather, the image was only accessible to those users who conducted a reverse image search—as Bell had—or those [**7]  who knew the precise address of the image database archiving the photograph, http://www.visitusa.com/images/states/alabama/cities/mobile/park.jpg (hereinafter, the "pinpoint address"), last seen on or around April 16, 2018, when the file was purportedly removed.⁷

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