United States District Court, C.D. California
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
Greg Young Publishing, Inc. ("GYP") filed this
action against Defendants Harmony Yacht Vacations, LLC
("HYV") and Bradley R. Matheson for copyright
infringement in violation of 17 U.S.C. § 501. Defendants
now move to dismiss the Complaint for lack of personal
jurisdiction. After considering the merits of Defendants'
arguments, the Court DENIES the Motion to
a California corporation headquartered in Santa Barbara,
California. (Compl. ¶ 1.) GYP, headed by Greg Young,
represents artists and assists them in marketing and selling
their artwork. (Id. ¶ 6.) GYP owns the
copyrights for the works of the artists that it represents,
and it licenses these works to various third parties,
including online dealers such as Art.com and Allposters.com.
(Id. ¶¶ 9, 20.) GYP registers the artwork
with the U.S. Copyright Office and has taken measures to
protect against infringement, such as by displaying a notice
of copyright on all of the artwork it displays on its website
and the websites of authorized third-party dealers.
(Id. ¶ 12.) GYP also requires all authorized
third-party dealers to place a copyright notice and an artist
attribution on the artwork they sell. (Id.)
the artists that GYP represents is Kerne Erickson.
(Id. ¶ 7.) Erickson painted an artwork known as
"Escape to Cuba, " which depicts a shaded beach
chair overlooking the ocean with a large beach hat resting on
top of the beach chair with the words "Escape to
Cuba" painted in green and yellow cursive above the
chair. (Id. Ex. A.) GYP owns the copyright for the
"Escape to Cuba" painting. (Id.
¶¶ 7, 8, Ex. B.) All of Erikson's posters sold
on Art.com and Allposters.com have his signature on them, and
also include a copyright notice. (Id. ¶ 20.)
a Florida limited liability company that has its principal
place of business in Key West, Florida. (Matheson Decl.
¶ 2, ECF No. 16-2; Compl. ¶ 2.) Matheson is a
resident of Key West, Florida, and is the president and
founder of HYV. (Matheson Decl. ¶¶ 1-2.) HYV is a
charter and yacht sales company that has positioned itself to
profit from the newly-opened travel between the United States
and Cuba by allowing customers to charter yachts for the
voyage. (Compl. ¶¶ 13, 15; Matheson Decl. ¶
4.) After founding HYV, Matheson purchased a poster of
"Escape to Cuba" from either Art.com or
Allposters.com. (Compl. ¶ 23.) Matheson then edited the
painting by removing the "K. Erickson" signature
and changing the words on the painting from "Escape to
Cuba" to "SailingCuba.com, " but maintained
the color and cursive design of the text. (Id.
¶¶ 25-26, Exs. F, G.) Matheson proceeded to use the
altered version of "Escape to Cuba" on
StockIslandMarina.com, and SailingMagazine.net. (Id.
¶ 27, Exs. H-1, I, J.) Matheson also used the altered
image on Facebook, Instagram, and as color-print
advertisements in Sailing magazine and Cruising
World magazine. (Id. ¶¶ 27-28, Exs.
K-1, L, M-2, N-2.) The websites on which Matheson displayed
the image are accessible from anywhere in the world, and the
magazines in which Matheson used the image are sold
throughout the United States. (Id. ¶¶
27-28.) Finally, Matheson also used the altered image to
create a large banner for a promotion stand, and for business
cards. (Id. ¶ 30, Exs. P, Q.)
February 9, 2016, GYP's attorney sent Matheson a
cease-and-desist letter concerning the unauthorized use of
the "Escape to Cuba" painting. (Id. ¶
31.) Matheson acknowledged receiving the cease-and-desist
letter through email correspondence on February 9 and
February 10. (Id.) However, four days later,
Matheson nevertheless used the infringing image as a large
promotional banner and on business cards at a Stock Island
Marina Village boat show on February 13, 2016. (Id.
April 21, 2016, GYP filed this action against Defendants,
wherein GYP asserted one claim for copyright infringement in
violation of 17 U.S.C. § 501. (Compl. ¶ 34.) On May
18, 2016, Defendants moved to dismiss for lack of personal
jurisdiction. (ECF No. 16.) GYP timely opposed. (ECF No. 20.)
That Motion is now before the Court for consideration.
defendant moves to dismiss a complaint for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2),
the plaintiff bears the burden of demonstrating that the
court's jurisdiction over the defendant is proper.
Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.
1990). The court must take the plaintiff's uncontroverted
version of facts as true, and any conflicts over the facts
must be resolved in the plaintiff's favor. Doe v.
Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001).
general rule is that personal jurisdiction over a defendant
is proper if it is permitted by a long-arm statute and if the
exercise of that jurisdiction does not violate federal due
process." Pebble Beach Co. v. Caddy, 453 F.3d
1151, 1154 (9th Cir. 2006). California's long-arm statute
is coextensive with federal due process requirements, so the
jurisdictional analysis for a nonresident defendant under
state law and federal due process is the same. See
Cal. Code Civ. Proc. § 410.10; Roth v. Garcia
Marquez, 942 F.2d 617, 620 (9th Cir. 1991). The court
may exercise specific jurisdiction over a defendant who has
sufficient "minimum contacts" with the forum state
such that the exercise of jurisdiction "does not offend
traditional notions of fair play and substantial
justice." Int'l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945) (quotation marks omitted). In copyright
cases, such minimum contacts exist where (1) the defendant
"purposefully direct[s]" their activities toward
the forum state, (2) the claim arises out of the
defendant's forum-related activities, and (3) the
exercise of jurisdiction is reasonable. Marvix Photo,
Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1227-28 (9th
Cir. 2011). The plaintiff bears the burden of establishing
the first two elements of the test. Id. at 1228. If
the plaintiff meets its burden, the defendant must then
establish a compelling case that the exercise of jurisdiction
would be unreasonable. Id.
direction is determined using the Calder effects
test, which requires that the defendant (1) commit an
intentional act, (2) expressly aimed at the forum state, (3)
that causes harm that the defendant knows is likely to be
suffered in the forum state. Washington Shoe Co. v. A-Z
Sporting Goods Inc., 704 F.3d 668, 672-73 (9th Cir.