good morning all judge mannion and i are privileged to have sitting with us today by designation judge alonzo of the northern district of illinois and we welcome him of course and and  are fortunate that he's available to help our first case for argument this morning isabel versus taylor mr bell thank you very much your honor may please the court i would like to reserve five minutes this is a joint appeal that concerns copyright infringements of two photos that i took and i later registered with us copyright office i will refer to the two photos as date daytime and nighttime both are photographs taken from virtually the same place showing the skyline of in annapolis indiana overlooking the canal as the copyright owner i file suit against defendants cheatham and o'brian because they posted the daylight daytime photo on their commercial websites without  filed suit against taylor for displaying the night time photo also on his commercial website without my authorization let me take that the daytime case first let me address the the rulings that i believe are narrow that need to be corrected by this court as it relates to the daytime photo each of the defendant motion for summary judgment to oppose that summary judgment on the issue of damages i designated an affidavit that i file based on my personal knowledge that for years i have sold the photo august of two thousand and eleven i attached to the exhibit the list price now the list price is is off my website rich bell photos dot com and so that was an additional exhibit to my affidavit the district court granted summary judgment to the defendants as to damages nisan what the court stated here there is no evidence other than mr bell's unsupported assertion that he has sold the rights to the n atlas photo for years at a price of two hundred dollars without the support or evidence this value is based on undue speculation well the court was clearly wrong stipulated that the list price of and here both myself and the defendants attached virtually the same exhibit showing the list price of two hundred dollars so it's almost like a stipulation well not quite ok i don't see it just a recognition that that's what the website states mr that's correct and here's what judge posner said on that issue sorry in his opinion he stated court court's opinion i'm sorry the list price is evidence of fair market  and if the infringers disagree that this is not a quote but he said down at a later quote the burden of persuasion both as to the showing a fair market value less than the stipulated list price falls of course on the infringer in this case the infringers never offered any evidence whatsoever was developed that they seek in any way to establish to the defendant it turned out that that i wanted a protective order and they were not willing to give me a protective order to keep track or to of keep the information out about bank accounts and things of that nature and they weren't willing to give that to me welcome and without without that information how would they be able to establish whether or not that's the accurate price i they could have it filing a fifty sixty motion and and ask for that information before they filed the summary judgment but they did it through first through web shots which was which was out there and i had a notation that you could buy it in fact but that's where several people contacted me and bought the photograph about two thousand and five when you take the picture of two thousand so you had about a five year period of time when you say oh no i didn't have any sales during the first five years  humility hospital was the first organization that bought it was really there who you you know i didn't see anything in the room we're going to we have it where the various people that you ok the other error that the court made as it relates to the daytime photo is the ruling on the declaratory judgment now there's a very simple similar case  call on davis versus the gap where the court said in the second circuit the owner of copyright is entitle to prevail in a claim for declaratory judgment of infringement without the showing of entitlement of monetary relate i should be allowed to receive a declaratory judgment that i'm the owner of that photograph and because that what i asked the court to do in the first place but with that attitude that i'll make sure the additional folks that there's over five hundred people that copied my photograph five hundred people five i do have confidentiality agreements with us but since you ask your i don't even know who just how much ok seven thousand dollars seven thousand seven thousand  place the court my name's john nelson for the of teles in this matter in the two thousand and thirteen case the district court dismissed all of mr bell's claims against cameron taylor and taylor computer solutions with prejudice this was a real one of his claims this ruling typically he's entitled to full  the portion of the summary judgment ruling that was issued on august of two thousand and fourteen as to mr taylor was final it disposed of all those claims with prejudice  left over matters relating to the declaratory judgment aspect of this case that still needed to be adjudicated as to the other two defendants does not change the fact that as as to mr similar to this case deals with the a case where you have multiple claims and multiple parties and basically what the get the court said there with respect to one of  the claims that they were able to dispose prior to disposition of the entire case was that the dismissal of the of the claim was not interlock atory in nature therefore that portion of the sum to mr taylor then clearly i think beyond question you've got a the final judgment which is which is beyond dispute which satisfies more than satisfies a believe the final judgment element of  mr bell has basically acknowledged that the privity s to the identity of privies parties element has been met the the third element of that identity of the cause of action he noted there are two two different photographs in issue which would naturally i think say there are two claims but this but the claim that relates to mr taylor specifically the nighttime photo claim is based on materials that i presented to the book the quintessential claim which should have been brought within the meaning of cypress hill and the the cases that discuss those those kinds of claims that that should have been brought in any in any prior litigation but for whatever reason were not in this case mr bell was provided with not just one or two things but a number of items which put him on notice at a very early point in the proceeding before he ever filed his first case against against anybody for all these copyright violations mr taylor sent him an email th that specifically says indianapolis skyline at night the fact that mr belin claiming ignorance or surprises i don't know if he didn't review these materials or why but  plenty of opportunity and two to amend the complaint to include this nighttime photograph and the other thing that i did point to my in my server apply was that the night time photograph was included in the same batch of photos as the daytime photograph submitted to the us copyright office at the at the same time and assigned signed the same registration number i think just the fact that all these facts i think points squarely to to the notion that this is a claim that should have been brought and again in the who is a demand to your clients to pay or get sued what would did your clients get a demand for paying certain amount for using the photograph my clients were contacted out of the blue by mr bell not of the blue how much initially i'm thinking the initial demand may have been five hundred and this would have been in two thousand and eleven and i know they and this would have been in spring of two thousand and eleven at that time i believe each one of them asked him what proof he had that he owned a photograph they have we have affidavits that have been presented in the case that he refused to answer those questions and basically made comments like well the price just went up he was their website or something the website was launched on may fifteenth two thousand and eleven approximately three months prior to the filing of the first lawsuit which was  no visible in die show of copyright ownership no watermark none of the things that you would look towards to see if you're committing it a possible copyright violation that's where mr o'brian obtain the website since the street yes since he street dot com we have to assume they must be to get to do that no no i bet you wouldn't know he he claims he he got it for free off that site other party ms cheatham basically she didn't do anything at all she had no hands on involvement with this she had a website developer that had considerable background designing websites for century twenty one again obtained this from a what what she described as an open source web site no indication of ownership no news no names no watermarks no locks on the on the photo nothing from the best determination that she could make i mean she could not ascertain the owner and the problem the problem at that time was that in the spring of two thousand and eleven well actually when they had when  when she them via her website designer obtained the photograph was approximately two thousand and seven and at that point in time there had been no registration  of the daytime photograph so it's sort of the the problem is when mr bell contacts them and says you will me money and he's asked questions as to well can you provide some proof of ownership and he refuses and then again well does he really onus and if you were to look at the u s copyright office ridges you wouldn't see anything because he had registered the photograph yet so that's i mean from a policy standpoint i mean if we always talk about encourage men of early registration of copyrighted materials here there was an there was an eleven year time gap between the two thousand that the data claimed to take the picture in two thousand and the and the date of registration which was in august of two thousand and eleven on top of all this there's there's some questions about  that i think raise kind of a when he says he's entitled to a certificate of or a declaratory judgment because he's the owner again he's asking for what is essentially an equitable remedy now when you have facts such as what i have just stated about his refusal to basically come clean or at least eliminate them on how they how he does o to own the copyright on top of this we we did find out that i mean he makes a sworn statement saying he took to the picture in the year two thousand with a camera that our website developer later found out it was not invented until two thousand and five and that the picture was first posted on a website of the law firm that mr mr bill used to work for back in two thousand there there are a number of say used the photograph and i'm trying to find out what they should have known if they had just looked at that at the time registration did not occur for another two months so that when you know if it is anything in the record that shows how your client should have known he took the picture there's nothing that that i can identify that those who got it from sincere something is going to your clients did is are way too if they should have known it wasn't just you know whatever they to it when it's from the basis of the websites that they did obtain needed the picture from that it would have put them on sufficient notice to know that mr bell published it there's no indicators along those lines it would have been  very problematic to to to determine that somebody five years after he took the picture paid seven thousand dollars to use it would they would they have found out he took the picture or do you know i don't know this well if they were they were attempting to find out how he took the picture but but he wouldn't tell them i mean before you knew who was your bill was before he contacted your clients were they get the picture or did they was there anyway they should have known that it was his picture and they should maybe there was no way they could have know very well maybe  to the district court in enforcing that knowing what it knew about not only this case but the other numerous cases involving mr bell was i think well within its purview in enforcing this to the degree that it did  what we what we have is the problem from a from a policy standpoint is wary conclusory take my word for it statement that is devoid of any factual particulars is basically excepted sight unseen it becomes in a case of a kin to a schoolyard boast where kid says oh yeah i've hit a lot of home runs ok name one who'd you hit it off who is the pitcher what team were you playing for same thing here ok i've sold photos to name one there is not it's throughout all of this and in the five years that i've been involved in this case i have yet to see the name of one person that is willingly willingly not with not with as a result of a settlement demand of seven thousand dollars or five thousand or whatever it's been willingly on his own volition by this picture without the threat of litigation hanging over their head and that's why i feel that  lling sellers that is absolutely false well how how do we know what one of the record tells us that well let me let me say this i in another case presented all the sales whatsoever and i believe that that that that counsel has actually had communication with the other warrior involved  to find out what the sales were and and you know if his clients were using him hard after his clients were using them the photos he contacted another lawyer well it's right in that i'm sorry it is that a part of the litigation no it is it turns out when they eliminated that page with my photograph on it it was not it is not in the record at th at this point in time but that's exactly what happened they every every single one of these cases they've they put the photograph on there and the of the website designers the website the organizations that host these websites require that you that you put a copyright notice on the bottom of each let me address the issue of race judicata all right we don't have a lot of time but you may have a couple minutes of do that ok first of all there's three reasons why fight there is no final decision do we we should send that case back against that's what you're suggesting yes the second case well i think the better the better thing to do would be to allow me to him in the complaint in the two thousand who don't amend it up here i understand but with instructions to amend it in the two thousand and thirteen case and then dismissed the two thousand and fourteen case that would that would solve the whole  the two thousand and twelve case also did not make a determination whatsoever on the on the night time photo and thirdly i was not given a full and fair opportunity to l yeah they took it down paid me my for the copyright for the infringement they used it for four months and it's and certainly yours without paying for it they stole it well see this is where i'm a problem they knew they were infringing on your i don't know about the putting copyright mark on there we did that's not for this beast i didn't see it on our human body but very said that was not part of this that's correct