Be careful when choosing territory for copyright litigation

In this case, the Welsh Government, a political subdivision of the United Kingdom, and various media companies were accused of using two photographs depicting the poet Dylan Thomas without authorization and in violation of the Copyright Act. Plaintiffs, owners of the copyrights in these photos, are Pablo Star Ltd. and Pablo Star Media Ltd. (“Plaintiffs”) – two related companies that are “organized and registered under the laws of Ireland and the United Kingdom.”

Dylan Thomas, a Welsh-born poet who lived from 1914 to 1953, is best known for his troubled and chaotic personal life and for penning the poem “Do not go gentle into that good night.” Plaintiffs, related media companies “organized and registered under the laws of Ireland and the United Kingdom,” own copyrights in two photographs depicting Thomas: “Just Married Dylan Thomas” and “Dylan and Caitlin at Penard” (“the Photos”).

Plaintiffs alleged that the Welsh Government operates “Visit Wales” as “an administrative division or business enterprise to encourage tourism and otherwise publicize and promote Wales as a tourist destination.” As a part of its effort to promote tourism in Wales, the Welsh Government, “acting through Visit Wales,” has “published, displayed, distributed, and otherwise used copies of the Photos in advertisements, publications, and other promotional materials directed at and specifically targeted towards the United States generally and New York residents in particular.” Specifically, Visit Wales operates a website that is accessible in the United States and which has displayed the Photos without authorization. Visit Wales also created a downloadable map and guide depicting a “Dylan Thomas Walking Tour of Greenwich Village, New York” that included one of the Photos.

When a defendant is accused of posting copyrighted material on a website accessible to anyone with an internet connection, Plaintiffs’ theory of “market harm” would define the “market” as anywhere that the internet is accessible. Online copyright infringement would thus always cause injury in New York, no matter how thin a plaintiff’s connection to the forum. Such a rule is not consonant with a plaintiff’s obligation under New York law to “allege facts demonstrating a non-speculative and direct New York-based injury to its intellectual property.”

On the facts of this case, even if the Court were to try to identify a single location where alleged injury is felt, that location would not be New York. The most concrete “lost potential sales” identified by Plaintiffs are the fees that the Publisher Defendants would have paid Plaintiffs for the right to use the Photos – not foregone sales to New York consumers who merely viewed the Photos online. To the extent that this harm causes injury in any single place – a dubious proposition – the location of that injury is not New York.

A copyright owner that neither resides in New York nor has its principal place of business in New York may not assert that New York is the situs of injury in an online copyright infringement case where, as in this case, the basis for locating the injury in New York is simply that New Yorkers can access the infringing content online. Because Plaintiffs have not alleged that a tort “caused injury to person or property within the state”, the Court does not have personal jurisdiction over some of defendants. The motion to dismiss for lack of personal jurisdiction has been granted as to these some defendants, who joined this motion.

Plaintiffs have not alleged that any of the specific conduct at issue occurred in the district in question, let alone a “substantial part” of it. Neither Plaintiffs nor the Welsh Government reside in the United States. The only concrete infringing materials that Plaintiffs can identify are materials that were available online.

But the fact that an infringing material is accessible via the internet in a jurisdiction is hardly sufficient to conclude that this infringement occurred in this district for the purposes of venue. Indeed, all of the Welsh Government’s relevant conduct – including the creation and maintenance of the websites at issue – appears to have occurred abroad. On this basis, the Court cannot conclude that a substantial part of the events giving rise to this claim occurred in New York. The motion to dismiss claims against the Welsh Government for improper venue has been granted.

All claims against the Welsh Government were dismissed for improper service and improper venue. All claims against Publisher Defendants the Miami Herald Media Co., the Richmond Times Dispatch, Treasure Coast Newspapers, E.W. Scripps, Co., Journal Media Group, and the Pittsburgh Post-Gazette were dismissed for lack of personal jurisdiction.