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Judge denies attorney’s motion to exclude in copyright infringement case

March 19, 2018

A retired Indiana attorney has lost his motion to exclude a defendant’s expert testimony in his copyright infringement case, with the U.S. District Court for the Southern District of Indiana finding the plaintiff was not prejudice by the defendant’s failure to file an expert report.

Judge Richard L. Young handed down that decision Friday in Richard N. Bell v. Michael Maloney, 1:16-cv-01193. In that case, retired McCordsville attorney Richard Bell sued Michael Maloney, a forensic consultant, in May 2016 for posting an allegedly copyrighted photo of the Indianapolis skyline online. Bell took the photo in question in 2000 and has since sued multiple defendants, including Maloney, for copyright infringement and unfair competition after they used the photo without his permission.

Maloney’s defense is grounded in the argument that Bell’s copyright isn’t legitimate because he took the photo as a “work made for hire” by his former employer, Indianapolis law firm Cohen & Malad P.C. The firm published the photo to its website the in 2000, and evidence produced during litigation showed Bell and a firm web developer discussing photos for the website.

All of that evidence proves Bell’s copyright isn’t legitimate, Maloney said, but Young denied both parties’ motions for summary judgment in July 2017, find a genuine issue of material fact as to whether Bell actually owned the copyright. As the litigant progressed, Bell moved on February 26 to exclude testimony of Jessica Wilch, a photography and web development specialist working as an expert witness for Maloney.

Bell argued in his motion to exclude that because Maloney failed to file an expert report by the Jan. 3, 2017, deadline, court rules require the exclusion of Wilch’s from the trial. Maloney, however, called Bell’s argument “disingenuous,” and “grossly misleading,” noting that Bell deposed Wilch for two days when she testified as a defense expert in another of his cases, Bell v. Taylor, 1:13-cv-798. Wilch’s expert report in that case — filed in March 2014 — is equally applicable here, Maloney alleged, because both cases dealt with the “work for hire” question.

While Young agreed in his Friday ruling that the 2014 report addressed the material issue presented in Maloney’s case, he also said Federal Rule of Civil Procedure 26(a)(2)(B) required Maloney to file an expert report in the instant case. Thus, though Bell was not prejudiced, the judge ordered Maloney to file the expert report within 14 days while also denying Bell’s motion to exclude.  

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