Creative Photographers, Inc. v. Grupo Televisa S.A.B.

Background

Creative Photographers, Inc. alleged that it held exclusive licenses to copyrights in 21 photographs. It claimed that the photographs appeared without permission on 20 websites used by Grupo Televisa before 2022 and by Televisa Univision and related entities after a 2022 merger. The complaint asserted claims for direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement.

Grupo Televisa moved to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(2), arguing that the court lacked personal jurisdiction over it, and under Rule 12(b)(6), arguing that the complaint failed to state a claim. Before this motion, the court had dismissed the First Amended Complaint for lack of personal jurisdiction without prejudice and without deciding whether it stated a claim. The claims against Televisa Univision and the Univision entities were later dismissed, leaving Grupo Televisa as the defendant addressed by this opinion.

Personal Jurisdiction in New York

The court first considered whether New York’s long-arm statute authorized jurisdiction over Grupo Televisa and, if so, whether exercising jurisdiction would comply with constitutional due-process requirements. Creative Photographers relied on three provisions of New York law.

Under Section 302(a)(1), Creative Photographers pointed to alleged transactions involving Televisa Univision, the Univision entities, and New York visitors to the websites. The court held that the allegations about transactions with related companies were too uncertain and conclusory because the complaint did not establish whether Grupo Televisa had transacted with New York entities or with affiliates whose locations were unknown. The court also held that the websites’ availability in New York, ability to sell subscriptions or print materials, alerts, quizzes, cookies, and tracking technologies did not establish jurisdiction. Creative Photographers did not allege that the websites actually made sales to New York residents or that New York residents registered, signed up for alerts, or otherwise engaged in the alleged transactions.

Under Section 302(a)(2), Creative Photographers argued that Televisa Univision and the Univision entities acted as Grupo Televisa’s agents. The court rejected that argument because the complaint did not adequately allege that Grupo Televisa knew of or controlled those entities’ alleged actions. The court found that Grupo Televisa’s alleged status as Televisa Univision’s largest shareholder, the entities’ shared management, and their alleged use of a common office did not establish the required agency relationship.

Under Section 302(a)(3), Creative Photographers argued that its copyright injury occurred in New York. The court explained that the plaintiff had to allege a direct, non-speculative New York injury to its intellectual-property rights, not merely that the plaintiff was located in New York or lost licensing revenue. The complaint alleged that the photographs’ use in click-bait content reduced their exclusivity and could harm licensing opportunities, but it did not allege that Creative Photographers actually lost licensing opportunities or that any lost customer was a New York customer. The court therefore found no New York injury sufficient for jurisdiction under Section 302(a)(3).

Federal Rule 4(k)(2)

Creative Photographers alternatively relied on Federal Rule of Civil Procedure 4(k)(2), which can allow jurisdiction over a defendant whose contacts with the United States as a whole are sufficient even though no single state has jurisdiction. The court held that the alleged contracts with Sony Pictures Studios, Viacom, and ViacomCBS did not establish the required contacts, particularly because the complaint did not describe their size, subject matter, or frequency and did not connect the copyright claims to those contracts. The alleged participation in other federal lawsuits also did not establish general or specific jurisdiction. The court further found that the allegations concerning Televisa Univision, the Univision entities, and the websites were insufficient for the same reasons discussed under New York law.

Disposition

The court held that Creative Photographers failed to make the required initial showing that personal jurisdiction existed over Grupo Televisa. Because the court lacked personal jurisdiction, it did not reach Grupo Televisa’s separate arguments that the complaint failed to state a claim or improperly relied on group pleading.

Judge Liman granted the motion to dismiss the Second Amended Complaint for lack of personal jurisdiction. Because Creative Photographers had multiple opportunities to amend and further amendment would be futile, the court dismissed the Second Amended Complaint with prejudice, directed the Clerk to terminate pending motions, and closed the case.