PHILADELPHIA – A federal judge has thrown out the case of a Pennsylvania photographer who accused a United Kingdom-based website of stealing his photo of a bridge collapse for lack of proper jurisdiction.
U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone dismissed Thomas Kelly III’s case against Vertikal Press, Ltd. on Nov. 2,
“The plaintiff photographed a bridge collapse – seemingly caused by a large crane driving over a small bridge – in Pottstown, Pennsylvania on May 15, 2017. He registered five photos of the bridge collapse with the United States Copyright Office,” per Beetlestone.
“On May 16, 2017, defendant ran a story titled "Crane Too Heavy for Bridge" on its website, Vertikal.net, featuring one of plaintiff’s photos of the Pottstown bridge collapse. Plaintiff avers that defendant did not have authorization to use the photograph and that this unauthorized reproduction amounts to copyright infringement under Sections 106 and 501 of the Copyright Act. Plaintiff further alleges that the infringement was willful and intentional.”
According to Kelly, the defendant’s registered address is in Northamptonshire, in the United Kingdom. Though the complaint was received on May 29 and an answer was due on June 19, the defendant did not answer or otherwise file a responsive pleading.
On Sept. 25, Kelly requested the Clerk of Court to enter default judgment and the Clerk of Court did so on Oct. 13, for failure to appear, plead, or otherwise defend.
In pursuing default judgment, Kelly asked the Court to enjoin the defendant from further infringement of plaintiff’s copyrighted works, sought $150,000 in statutory damages for willful infringement of a registered copyrighted work pursuant to 17 U.S.C. Section 504(c) and requested reasonable costs and attorney’s fees in the amount of $11,702, pursuant to 17 U.S.C. Section 505.
Beetlestone decided that there is no general personal jurisdiction over defendant, since Kelly made no allegations to show that defendant’s “affiliations with [Pennsylvania] are so continuous and systematic as to render [it] essentially at home’ in this forum”.
“Plaintiff’s bare allegation in its complaint that ‘defendant transacts business in Pennsylvania’ is insufficient to establish that the U.K.-based company has continuous and systematic contacts with Pennsylvania,” Beetlestone said.
Kelly argued, however, that there is specific personal jurisdiction over defendant based on its commercially interactive website.
“Plaintiff alleges that defendant’s website, Vertikal.net, is ‘part of a purposeful effort on the part of defendant to provide its services to Pennsylvania residents’ and that defendant purposefully availed itself of the forum by ‘conducting activity in the forum state via its website,” Beetlestone said.
“In support thereof, plaintiff cites to the option to subscribe to a virtual newsletter on the website, and the ability to access information such as news, events, job postings, subscriptions, and data in a directory.”
According to Beetlestone, these allegations are insufficient to exercise personal jurisdiction over the defendant – since Kelly does not show that defendant is selling goods to or conducting transactions with anyone via the website, let alone residents of Pennsylvania, and the website appears only minimally interactive.
“Perhaps more importantly, plaintiff has provided no evidence that the website directly targets residents of Pennsylvania or that defendant has knowingly interacted with residents of Pennsylvania via the website,” Beetlestone stated.
“In fact, plaintiff has not alleged that a single Pennsylvania resident has subscribed to or interacted with the defendant via the website. The mere possibility that someone in Pennsylvania – as anywhere in the world – might contact the defendant via the website does not constitute a purposeful contact with the forum.”
Beetlestone explained that in contrast, Kelly did not allege either: 1) That Vertikal.net provides for commercial transactions with Pennsylvania residents; or 2) That Vertikal.net specifically directs non-commercial activity towards an audience in Pennsylvania.
“The only tangential connection to Pennsylvania is posting news stories that took place in Pennsylvania, which would not put defendant on notice that it may be hauled into this forum to defend itself. Such a finding would suggest that every news organization that covered a story that happened in Pennsylvania was subject to jurisdiction here,” Beetlestone said.
“In short, defendant has insufficient minimum contacts with Pennsylvania to establish a purposeful availing of the law of the forum. There is therefore no personal jurisdiction over defendant with respect to plaintiff’s copyright claim.”
The plaintiff was represented by Robert S. Silver, Stanley H. Cohen, Douglas Panzer and Manny D. Pokotilow of Caesar Rivise, in Philadelphia.
The defendant had not secured legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-02315
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com