Greg Young Publishing, Inc. v. Harmony Yacht Vacations, LLC

          ORDER DENYING DEFENDANTS' MOTION TO DISMISS [16]

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff 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 Dismiss.^[1]

         II. FACTUAL BACKGROUND

         GYP is 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.)

         One of 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.^[2] (Id. ¶ 20.)

         HYV is 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 HarmonyYachtVacations.com, SailingCuba.com, 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.^[3] (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.)

         On 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. Ex. Q.)

         On 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.

         III. LEGAL STANDARD

         When a 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).

         "The 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).^[4] 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.

         Purposeful 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. 2012).

         IV. ...