No personal jurisdiction over Australian defendant in Flickr right of publicity case

January 22, 2009 | by Evan Brown   | Share on Facebook

Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)

Allison Chang (through her mother, since Allison is a minor) and Justin Ho-Wee Wong sued Australian-based Virgin Mobile Pty Ltd. alleging a number of tort claims including misappropriation of Chang’s right of publicity. Plaintiffs claimed that Virgin wrongfully used Chang’s picture in an Australian advertising campaign.

What makes the case intriguing is that Virgin got the photo off of Flickr. Wong took the picture and uploaded it there, attaching a Creative Commons Attribution 2.0 license to it. [See the ad]

Virgin moved to dismiss the action for lack of personal jurisdiction, arguing that it lacked minimum contacts with the forum state of Texas to satisfy constitutional due process. The court granted the motion and dismissed the case.

Chang argued that the court could exercise personal jurisdiction based on three contacts between Virgin and Texas: (1) Virgin’s accessing a Flickr server located in Texas; (2) Virgin’s contract (i.e., the Creative Commons license) with Wong, a Texas resident; and (3) the intrastate effects of Virgin’s use of Chang’s photograph in the advertising campaign.

The court found that Chang failed to establish the downloaded photo was on a server located in Texas. Though Flickr does maintain servers there, the photo could have been on another server located in either Virginia or Texas. The court rejected Chang’s argument that because Virgin directed its conduct to Flickr.com, it could be haled into court anywhere there are Flickr servers.

The court similarly found that any purported agreement with Wong via the Creative Commons license was not sufficient to establish personal jurisdiction. The Creative Commons license did not require Virgin to perform any of its obligations in Texas. Instead, the license permitted the photograph to be used anywhere in the world. Furthermore, Chang failed to show that Virgin performed any of its obligations in Texas. It used the photograph solely in Australia, the one place that, according to Virgin’s evidence, it was authorized to sell its products and services. Finally, because Virgin only used the photograph in Australia, the license that permitted its use was centered in Australia, not Texas.

Chang’s final argument was that she felt the injurious effects of the alleged misappropriation in Texas and therefore, under the holding of Calder v. Jones, a court in Texas could hear the case. The court rejected this argument finding that even though Chang may have shown she was affected in Texas, plaintiffs failed to show that Virgin’s conduct was intentionally directed into the forum.

Australian flag image courtesy Flickr user euthman under this Creative Commons license.

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comments

4 Responses to “No personal jurisdiction over Australian defendant in Flickr right of publicity case”

  1. Jonathan Bailey on January 22nd, 2009

    Not a surprising result, but the question is obvious, where does Chang go from here. She theoretically could retry her suit in a more fitting jurisdiction but that doesn’t seem likely due to cost.

    I just hope that Virgin and other companies learn that copyrights and publicity rights are two very different beasts…

  2. Jay Parkhill on January 22nd, 2009

    I’ll add to the prior commenter’s post that there is a big difference between the rights one has and those one can enforce. Seems like a no-win for Chang & co.

  3. Kenneth Kunkle on January 22nd, 2009

    It raises an interesting question of whether the Creative Commons license should include a forum selection clause of some sort..

  4. John on February 27th, 2009

    A good decision by the courts. I feel the Changs shouldn’t get any money out of this. Bravo to them for raising awareness to companies but it sounds like they’re just trying to make some money.

    So they used her picture on an ad campaign in a foreign country, no big deal. The only reason the public came to know that it was her was due to her identifying herself and her family making a big deal out of it. Just because the USA is overly litigious, doesn’t mean the rest of the world is. They were wrong to go after Virgin Mobile USA, their lawyer was just grasping at straws to find someone to pay up.

    There’s buck stops at the person who uploaded the photo in the first place. He should know that anything posted on the Internet instantly becomes public. He basically gave away his rights to the photo when decided to upload it under a free use license. Virgin Mobile definitely should be more careful in the future, but they did no wrong doing in this case because it’s all in the fine print that the photographer failed to read.

    If the Changs want any money they should sue the photographer for being an idiot for posting it on the Internet in the first place.