Case 1:16-cv-02571-TWP-DML Document 1 Filed 09/28/16 Page 1 of 11 PageID #: 1

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RICHARD N. BELL

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)
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) Case No. 1:16-cv-2571
)
)
)
)
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Plaintiff,
v.
CINDY CHERF
Defendant.

COMPLAINT
Summary of lawsuit
1.

The Plaintiff, Richard N. Bell, took photograph of the Indianapolis Skyline in

2000 and the Indianapolis Nighttime Photo was registered with the U.S.
Copyright office. In 2016, the Plaintiff discovered that Defendant Cindy Cherf
(Cherf) had published the Indianapolis Nighttime Photo in advertising which
appears on a website owned by the Defendant, even though the Defendant had no
rights or authority to publish the Indianapolis Nighttime Photo. (See Exhibit B).
The Plaintiff requests damages and injunctive relief against the Defendant for
violations of the U.S. Copyright laws.
JURISDICTION AND VENUE
2.

This copyright infringement action arises under 17 U.S.C. 101 et seq. This

Court has jurisdiction over this action under 28 U.S.C. 1331 (federal question),
and 28 U.S.C. 1338 (acts of Congress related to copyright).
3.

This Court has personal jurisdiction over the Defendant by virtue of their

transacting, doing, and soliciting business in this District, and because a

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substantial part of the relevant events occurred in this District and because a
substantial part of the property that is the subject of this action is situated here.
4.

Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and 1400(a)

because the named plaintiff Richard N. Bell resides in this district and because a
substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated; and/or
conduct business in this district.
PARTIES
5.

The Plaintiff, Richard N. Bell is an attorney and a professional photographer

and lives in McCordsville, Indiana.

6.

Defendant Cindy Cherf works in Carmel, IN as a real estate agent. Cherf

created /or controlled a website with the domain name of [Link].

FACTS
7.

In March 2000, the Plaintiff, a United States citizen, took a photograph of

downtown Indianapolis skyline from overlooking the canal from St. Clair Avenue.
8.

The photograph is an original work that is copyrighted under United States

law. A copy of the photo is attached as Exhibit A, hereinafter referred to as

Indianapolis Nighttime Photo

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9.

Since March 2000, the Plaintiff has either published or licensed for

publication all copies of the Indianapolis Nighttime Photo in compliance with the
copyright laws and has remained the sole owner of the copyright.
10.

Indianapolis Nighttime Photo was first published on the World Wide Web on

August 29, 2000 by the users account on Webshots. It was recently published on a
website created by the Plaintiff under the domain name: [Link]
11.

The Indianapolis Nighttime Photo was registered on August 4, 2011 with

the United States Copyright Office and assigned Registration Number

VA0001785115.
12.

Plaintiff and others authorized by the Plaintiff have used the Indianapolis

Nighttime Photo in advertising to such an extent that the Indianapolis Nighttime

Photo is identified by the public as being created by the Plaintiff.
13.

Plaintiff and others authorized by the Plaintiff have used the Indianapolis

Nighttime Photo in advertising to promote their photography business.

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COUNT I
COPYRIGHT INFRINGEMENT
AND UNFAIR COMPETITION
14.

Defendant

Cherf

created

website

for

the

World

Wide

Web

at

[Link] to promote and advertise his real estate business and

used the Indianapolis Nighttime Photo on the website.
15.

Defendant used the Indianapolis Nighttime Photo to draw or attract

prospective customers.
16.

Defendant is liable to Plaintiff because it had the right and ability to control

and supervise the content of [Link] and to control and supervise

the access of third party Internet users to that website.
17.

Upon information and belief, the Defendant Cherf downloaded or took the

Indianapolis Nighttime Photo from the internet without permission from the owner,
Richard N. Bell and copied on to a webserver controlled by the Defendant.
18.

In April 2016, the Plaintiff discovered through the computer program Google

images displayed the Indianapolis Nighttime Photo at [Link]

19.

Defendant Cherf did not disclose the source of the stolen Indianapolis

Nighttime Photo or otherwise conferred credit to the owner; instead, the Defendant
willfully and recklessly falsely claimed that it owned the copyrights of all images and
photos contained on the website of including Indianapolis Nighttime Photo and
thereby disparaged the Plaintiff.

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20.

During the year 2016, the website of Defendant Cherf published the

Indianapolis Nighttime Photo for its commercial use without paying for said use and
without obtaining the necessary authorization from the Plaintiff, the copyright
owner.
21.

While the Defendant Cherf will know the exact date of first publication, based

upon the Plaintiffs investigation, during the year 2016, Defendant began publishing
the Indianapolis Nighttime Photo and used the Indianapolis Nighttime Photo for
their commercial use without paying for said use and without obtaining the necessary
authorization from the Plaintiff.
22.

The Defendant knew that they did not own Indianapolis Nighttime Photo and

knew the Defendant had not obtained the rights to publish the Indianapolis
Nighttime Photo, but recklessly and falsely represented to the world otherwise.
23.

Defendant Cherf have not paid anyone for the right to publish the Indianapolis

Nighttime Photo, but instead fraudulently declared that the Defendant owned the
copyrights to the Indianapolis Nighttime Photo.
24.

Defendant refuse to pay for the unauthorized use of Indianapolis Nighttime

Photo.
25.

Defendant have not agreed be enjoined from using the Indianapolis Nighttime

Photo.

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26.

Defendant have engaged in unfair trade practices and unfair competition in

connection with its publication of the Indianapolis Nighttime Photo, and that
Defendant publication of the Indianapolis Nighttime Photo failed to designate the
source of the stolen Indianapolis Nighttime Photo or otherwise confer credit to the
owner and thereby such conduct has disparaged the Plaintiff thus causing irreparable
damage.
27.

Defendant Cherf continue infringing conduct which has caused and is causing

substantial and irreparable injury and damage to Plaintiff in an amount not capable
of determination, and, unless restrained, will cause further irreparable injury,
leaving the Plaintiff with no adequate remedy at law.
28.

There is a risk of infringing conduct which has caused and will likely cause

substantial and irreparable injury and damage to Plaintiff in an amount not capable
of determination, and, unless restrained, will cause further irreparable injury,
leaving the Plaintiff with no adequate remedy at law.
29.

After the Defendant published the Indianapolis Nighttime Photo, Defendant

permitted third parties to access to the webpage [Link] and

copy the Indianapolis Nighttime Photo to third party Internet Users computers.
30.

Defendant Cherf is vicariously liable for each such downloaded copy of the

Indianapolis Nighttime Photo initiated by each third party Internet User regardless

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of whether Defendant was aware that the third party was creating the downloaded
copy.
31.

Defendant is liable for all profits resulting from each downloaded copy of the

Indianapolis Nighttime Photo created by each such third party Internet User.
32.

Defendant Cherf is liable for copyright infringement regardless of whether

Defendant knew that any use of the Indianapolis Nighttime Photo would infringe
copyrights Plaintiff owns.
33.

Plaintiff has complied in all respects with 17 U.S.C. 101 et seq., and secured

the exclusive rights and privileges in and to the copyrights of the above-referenced
works.
34.

Plaintiff has been and still is the sole proprietor of all rights, title, and interest

in and to the copyrights in their respective works as referenced above.

35.

Defendant Cherfs conduct violates the exclusive rights belonging to Plaintiff

as owner of the copyrights, including without limitation Plaintiffs rights under 17

U.S.C. 106.
36.

Plaintiff seeks damages for Defendant use of Plaintiffs advertising idea

comprising the Indianapolis Nighttime Photo.

37.

On information and belief, Plaintiff alleges that, as a direct and proximate

result of their wrongful conduct, Defendant Cherf has realized and continues to

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realize profits and other benefits rightfully belonging to Plaintiff. Accordingly,

Plaintiff seek an award of damages pursuant to 17 U.S.C. 504 and 505.
38.

Defendants infringing conduct has also caused and is causing substantial and

irreparable injury and damage to Plaintiff in an amount not capable of determination,

and, unless restrained, will cause further irreparable injury, leaving the Plaintiff
with no adequate remedy at law.
39.

Plaintiff seeks an injunction to enjoin Defendant from republishing any of

your copyrighted materials that, if granted, would require that the Indianapolis
Nighttime Photo not be available on [Link] which would thereby
make it impossible for third party Internet users to download copies of the
Indianapolis Nighttime Photo from said webpage.
40.

Defendant Cherf have willfully and deliberately engaged in, and, is willfully

engaging in, the acts complained of with oppression, fraud, and malice (Acts) and
in conscious disregard of the rights of Plaintiff. Plaintiff is, therefore, entitled to the
maximum statutory damages allowable.
41.

Examples of these willfully and deliberately Acts, include but not limited to

the following:
a. Defendant downloaded or took the Indianapolis Nighttime Photo from
the internet and included said photo on the Defendants website.
b. Defendant failed to designate the source of the stolen Indianapolis

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Nighttime Photo or otherwise confer credit to the owner.

c. Defendant recklessly, willfully and falsely asserted that the Defendant
owned the copyrights of all content, images and photos contained in the
Defendants website including Indianapolis Nighttime Photo.
d. Defendant knew that it did not own Indianapolis Nighttime Photo and
knew the Defendant had not obtained the rights to publish the
Indianapolis Nighttime Photo, but deliberately and falsely represented
to the world otherwise.
e. Defendant has not paid anyone for the right to use Indianapolis
Nighttime Photo, but instead fraudulently declared that the Defendant
owned the copyrights to the Indianapolis Nighttime Photo.
42.

As a consequence of this dispute between the parties as to the rights, title, and

interest in the copyrighted articles described above, and pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. 2201 and 2202, Plaintiff also seek a
resolution of this ongoing controversy by a declaration of this Court as to the rights
of the respective parties in this matter.
THEREFORE, Plaintiff prays for judgment against Defendant Cherf as follows:
a. Declaring that Defendants unauthorized conduct violates Plaintiffs
rights under common law and the Federal Copyright Act;
b. Immediately and permanently enjoining Defendant Cherf, their
members,
officers,
directors,
agents,
servants,
employees,

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representatives, attorneys, related companies, successors, assigns, and

all others in active concert or participation with them from copying and
republishing any of Plaintiffs copyrighted articles or copyrighted
material without consent or otherwise infringing Plaintiffs copyrights
or other rights in any manner;
c. Enjoin Defendant from republishing any of your copyrighted materials
that, if granted, would require that the Indianapolis Nighttime Photo
not be available on [Link] which would thereby
make it impossible for third party Internet users to download copies of
the Indianapolis Nighttime Photo from said webpage.
d. Ordering Defendant Cherf to account to Plaintiff for all gains, profits,
and advantages derived by Defendant, and third party users by their
infringement of Plaintiffs copyrights or such damages as are proper,
and since Defendant intentionally infringed plaintiff's copyrights, for
the maximum allowable statutory damages for each violation;
e. Awarding Plaintiff actual and/or statutory damages for Defendant
copyright infringement in an amount to be determined at trial;
f. Awarding Plaintiff their costs, reasonable attorneys' fees, and
disbursements in this action, pursuant to 17 U.S.C. 505; and
g. Awarding Plaintiff such other and further relief as is just and proper.

Respectfully Submitted:
Date: September 28, 2016

_/s Richard N. Bell

Richard N. Bell

Richard N. Bell, Atty. No. 2669-49

Bell Law Firm
10042 Springstone Road
McCordsville, In 46055
(317) 589-8535

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(317) 690-2053 Cell

richbell@[Link]

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