What goes on in Hollywood, stays in … Well, some high-priced Los Angeles legal talent may be making arrangements to trek to the Big Easy, based on a decision by a U.S. District Court in New Orleans. The court there dismissed a motion by NBC Universal Media to move a copyright infringement suit over copyrighted artwork by plaintiff Preston Asevedo, shown on the Syfy reality show Dream Machines. The court’s decision allows Asevedo, an artist and illustrator, to move forward for now with the case in the state in which he resides: Louisiana.
The defendants in this motion were NBC Universal and Syfy, part of the NBC Universal conglomerate and the cable network on which Machines is shown. In their motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and (3), defendants said they did not maintain sufficient “minimum contacts” with Louisiana for that court to hold personal jurisdiction over them. They also argued that “a national television broadcast alone does not render the broadcaster subject to personal jurisdiction in any jurisdiction with viewers.” In opposition, Asevedo argued the court had specific personal jurisdiction because the show was broadcast to a national audience, including Louisiana, and the show was available on Syfy’s website, which can be viewed in Louisiana. Asevedo argued that the Louisiana court also had general jurisdiction.
U.S. District Judge Lance M. Africk found that there could be specific personal jurisdiction, based on the broadcast using either a “stream of commerce” theory or an “effects” theory. They key for either is a determination of the second prong of the Fifth Circuit’s three-step test: whether plaintiff’s cause of action arises out of or results form defendant’s forum-related contacts. Both parties cited persuasive authority; the court left them to resolve this issue via discovery.
Next, the court analyzed whether defendant’s website subjects it to specific personal jurisdiction, applying the Zippo “sliding scale” test. Africk said the site is “passive” on the scale, rendering personal jurisdiction inappropriate, because it merely shows episodes of the show. Although Asevedo claims defendants sell merchandise and other products for the show through a “virtual store,” he failed to claim that either NBC Universal or Syfy operated that store.
Finally, the court held that Asevedo presented enough facts that, if true, would give rise to general jurisdiciton. Proof of this requires a determination of whether defendant’s contacts with the forum state, unrelated to the controversy, are “sufficiently systematic and continuous.” Here, Asevedo claimed that defendants had many Louisiana contacts, including hiring employees from it, producing TV programs and films there, selling merchandise in pelican land and maintaining affiliates incorporated across bayou country. Based on these contentions, Africk allow issues to be resolved via discovery.
For a discussion of the other two issues, venue and transfer, here’s the opinion.