Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)
Allison Chang (through her mother, since Allison is a minor) and Justin Ho-Wee Wong sued Australian-based Virgin Mobile Pty Ltd. alleging a number of tort claims including misappropriation of Chang’s right of publicity. Plaintiffs claimed that Virgin wrongfully used Chang’s picture in an Australian advertising campaign.
What makes the case intriguing is that Virgin got the photo off of Flickr. Wong took the picture and uploaded it there, attaching a Creative Commons Attribution 2.0 license to it. [See the ad]
Virgin moved to dismiss the action for lack of personal jurisdiction, arguing that it lacked minimum contacts with the forum state of Texas to satisfy constitutional due process. The court granted the motion and dismissed the case.
Chang argued that the court could exercise personal jurisdiction based on three contacts between Virgin and Texas: (1) Virgin’s accessing a Flickr server located in Texas; (2) Virgin’s contract (i.e., the Creative Commons license) with Wong, a Texas resident; and (3) the intrastate effects of Virgin’s use of Chang’s photograph in the advertising campaign.
The court found that Chang failed to establish the downloaded photo was on a server located in Texas. Though Flickr does maintain servers there, the photo could have been on another server located in either Virginia or Texas. The court rejected Chang’s argument that because Virgin directed its conduct to Flickr.com, it could be haled into court anywhere there are Flickr servers.
The court similarly found that any purported agreement with Wong via the Creative Commons license was not sufficient to establish personal jurisdiction. The Creative Commons license did not require Virgin to perform any of its obligations in Texas. Instead, the license permitted the photograph to be used anywhere in the world. Furthermore, Chang failed to show that Virgin performed any of its obligations in Texas. It used the photograph solely in Australia, the one place that, according to Virgin’s evidence, it was authorized to sell its products and services. Finally, because Virgin only used the photograph in Australia, the license that permitted its use was centered in Australia, not Texas.
Chang’s final argument was that she felt the injurious effects of the alleged misappropriation in Texas and therefore, under the holding of Calder v. Jones, a court in Texas could hear the case. The court rejected this argument finding that even though Chang may have shown she was affected in Texas, plaintiffs failed to show that Virgin’s conduct was intentionally directed into the forum.
Australian flag image courtesy Flickr user euthman under this Creative Commons license.