Paulo v. Agence France Presse

Background

Leong Francisco Paulo, a Portuguese citizen and resident of Lisbon who worked as a photojournalist, sued Agence France-Presse (AFP), Getty Images (US), Inc., and Getty Images, Inc. He alleged two claims under the Copyright Act: copyright infringement and violation of copyright-management information requirements. The amended complaint concerned 34,716 photographs that Paulo created and licensed to AFP between 2005 and 2018.

Paulo alleged that he owned the copyrights, that AFP’s license ended after he sent an April 2019 notice, and that AFP and the Getty defendants continued reproducing, distributing, displaying, marketing, selling, licensing, or otherwise exploiting the photographs. The parties’ relationship was centered in Portugal. Paulo’s 2010 agreement with AFP was governed by Portuguese law and included a clause providing that litigation arising from the agreement would fall under the jurisdiction of the Lisbon District Court. Paulo had also previously brought related proceedings against AFP in Portugal.

Report and Recommendation and Standard of Review

Magistrate Judge Sarah L. Cave recommended granting the defendants’ motion to dismiss and conditionally dismissing the action under the doctrine of forum non conveniens. That doctrine allows a court to dismiss when a foreign court is a more appropriate and convenient place to resolve the dispute. The magistrate judge also recommended, as an alternative, dismissing the claims against AFP for lack of personal jurisdiction.

Paulo objected to the recommendation. Judge Rochon conducted the required review, adopted the Report and Recommendation in full, and addressed both grounds for dismissal.

Forum Non Conveniens

The court gave Paulo’s choice of a New York forum only minimal deference. Paulo lived in Portugal, only one of the three defendants was considered at home in New York, and the dispute arose largely from Paulo’s professional and contractual relationship with AFP in Portugal. Many of the photographs and underlying events were connected to Portugal or other places outside the United States, and none were alleged to have been taken in the United States.

The court also considered the Portuguese forum-selection clause, Paulo’s earlier litigation in Portugal, and the court’s finding that his decision to sue in New York was motivated at least in part by forum shopping. The court rejected Paulo’s argument that the exclusive federal jurisdiction of U.S. copyright claims prevented dismissal under forum non conveniens. It explained that courts may apply that doctrine even in copyright cases and that Portuguese courts could address the subject matter of the dispute, even if they did not provide precisely the same causes of action available in the United States.

The court found Portugal to be an adequate alternative forum. The defendants agreed to accept service there, submit to the jurisdiction of the appropriate Lisbon District Court divisions, waive certain statute-of-limitations defenses, and refrain from arguing that Paulo was barred from pursuing his theory that the 2010 agreement created a license that he rescinded. The court also found that the private-interest factors favored Portugal because relevant witnesses, evidence, documents, and the agreement were largely located there. The public-interest factors also favored Portugal because the dispute involved Portuguese parties or conduct, Portuguese law, and a contract written in Portuguese, while New York’s interest was limited.

Personal Jurisdiction Over AFP

As an alternative ground for dismissal of the claims against AFP, the court held that exercising personal jurisdiction over AFP in New York would be unreasonable. Although New York’s long-arm statute reached AFP, the court concluded that due process barred jurisdiction under the circumstances.

The court emphasized that AFP was a French corporation, its relevant personnel and evidence were located abroad, and its relationship with Getty US was managed in France. New York had, at most, a minimal interest in resolving a dispute centered in Portugal. Portugal was also more convenient for Paulo and the witnesses, and litigating there would avoid translating Portuguese documents and applying Portuguese law in New York. The court therefore found that AFP had shown the required compelling case that exercising jurisdiction would be unreasonable.

Disposition

The court adopted the Report and Recommendation in its entirety and granted the defendants’ motion to dismiss. It dismissed the case under forum non conveniens, conditioned on the defendants’ agreement to accept service in Portugal; submit to the jurisdiction of the Lisbon District Court’s Labour Division and/or Intellectual Property Division; waive any statute-of-limitations defense that arose after the U.S. action was filed; toll the statute of limitations on Paulo’s Copyright Act claims and allow him to seek reopening if a Portuguese court declined to hear them; and agree that Paulo was not barred from arguing that Clause 7 created a license that he rescinded. The court also dismissed the case as to AFP for lack of personal jurisdiction. The court did not decide whether Paulo owned the copyrights or whether the defendants infringed them.