The Wave Studio, LLC v. Trivago N.V.

Background

The Wave Studio, LLC sued trivago N.V., trivago Services US, LLC, Trip.com Group Limited, Trip.com Travel Singapore Pte. Ltd., Skyscanner Ltd., MakeMyTrip India Pvt. Ltd., and MakeMyTrip.com, Inc. It alleged direct, contributory, and vicarious copyright infringement under Title 17 of the United States Code. Wave Studio claimed that the defendants were using its copyrighted photographs to promote hotels through their travel and booking businesses without authorization.

Wave Studio requested a temporary restraining order and preliminary injunction barring the defendants from continuing to use photographs covered by nine listed copyright registrations. At the hearing, Wave Studio and the trivago defendants said they had agreed to work out a settlement, and Wave Studio no longer sought the injunction against those defendants. Wave Studio continued pursuing the request against the remaining defendants. Most of those defendants were foreign entities and had not filed opposition papers or appeared in the case as of the order.

Wave Studio relied on decisions from courts in Singapore involving General Hotel Management Ltd. The Singapore courts found, according to the opinion, that Wave Studio owned the copyrighted works, had not given General Hotel Management an implied license to distribute them for marketing or advertising, and that General Hotel Management had infringed the copyrights by distributing them to third parties.

Personal Jurisdiction

Before considering the injunction, the court examined whether it had personal jurisdiction—the power to require a defendant to defend a case in that court—over the International Defendants: Trip.com Group Limited, Trip.com Travel Singapore Pte. Ltd., Skyscanner Ltd., and MakeMyTrip India Pvt. Ltd. The court did not include MakeMyTrip.com, Inc. in this part of the analysis because the complaint identified that defendant as having its principal place of business in New York.

Wave Studio relied on Federal Rule of Civil Procedure 4(k)(2), which can allow a federal court to exercise jurisdiction over a defendant with sufficient contacts with the United States as a whole when the defendant is not subject to general jurisdiction in any individual state. The court agreed that the copyright claims arose under federal law, satisfying the first requirement.

But the court held that Wave Studio had not satisfied the second requirement. Under the authorities the court applied, Wave Studio needed to certify that, to its knowledge, the foreign defendants were not subject to general jurisdiction in another state. Wave Studio had not provided that certification. The court therefore found that Wave Studio had not shown personal jurisdiction over the International Defendants. Because of that failure, the court did not conduct the remaining due-process analysis under Rule 4(k)(2).

Preliminary-Injunction Analysis

The court then considered the injunction request against all remaining defendants, assuming for purposes of that analysis that it had jurisdiction over them. A preliminary injunction is an order issued before final judgment that temporarily requires or prohibits specified conduct. To obtain one, Wave Studio had to show, among other things, likely success on the merits or serious questions for litigation, likely irreparable harm without the injunction, a favorable balance of hardships, and consistency with the public interest.

The court focused on irreparable harm, meaning harm that is actual and imminent and cannot adequately be repaired later with money damages. It held that Wave Studio had not made that showing. Wave Studio had relied mainly on its allegation that the defendants were infringing its copyrights, but it did not identify facts showing that the absence of an injunction would cause actual and imminent harm. The court also noted that Wave Studio said it did not know, and could not know, every instance of infringement, and that it had pursued similar copyright claims involving the same works for approximately a decade. In the court’s view, those circumstances weakened the claim that an injunction was urgently necessary.

The court said that cases finding irreparable harm in copyright disputes often involved imminent market confusion, difficult-to-calculate lost sales, or threats to reputation and goodwill. It found that Wave Studio had not described comparable harm. Because the failure to show irreparable harm was fatal to the injunction request, the court did not decide whether Wave Studio was likely to succeed on its copyright claims. The court said Wave Studio made a strong argument that the Singapore decisions should be recognized under principles of international comity, but it did not resolve that issue.

The court observed that the balance of hardships and public interest appeared to favor Wave Studio, but that did not overcome the failure to show irreparable harm. The court also discussed the proposed injunction’s scope. It found the request too broad because the copyright registrations and photograph titles were not specific enough to tell the defendants which materials they would be required to remove or stop using. Any injunction, the court said, would have needed to be limited to specifically identified photographs or media materials that Wave Studio sufficiently showed were protected by copyright.

Disposition

The court denied Wave Studio’s preliminary-injunction application with prejudice. It granted Wave Studio leave to file amended pleadings by June 29, 2023, and encouraged Wave Studio to provide the jurisdictional certification concerning the International Defendants and to identify the specific works allegedly infringed by each defendant. The court also directed Wave Studio to mail the order to defendants who had not appeared and file proof of service.