Infringement Overseas- No Claim in the United States

Questions continually arise as to rights a photographer has when photos are used overseas without consent. This has become more and more of an issue given the rapid growth of e-commerce and the Internet.

Under the United States Copyright Act, there are certain prerequisites to be met before a copyright infringement suit can be successful. A case brought in the United States District Court for the Southern District of New York was recently dismissed because the plaintiff could not establish sufficient contacts in New York to maintain the suit.

The plaintiff, Laura Yjungkuist, was an artist living in New York City. She had a London agent who negotiated with various entities based in London for a commission to create artwork for a London-based use. The job was killed and a kill fee paid.

Thereafter, what is alleged to be substantially similar artwork was used in the campaign and a lawsuit was commenced in New York.

The Court, in dismissing the action on procedural grounds, found that all of the alleged acts of copyright infringement or other related wrongful acts were committed on "foreign soil," and that the defendants did not otherwise transact business in New York.

The plaintiff failed, in the Court's opinion, to meet any of the tests required to obtain jurisdiction over the defendants and to maintain the suit in the District Court.

BURDEN OF PROOF

This case may set the outer limits for the burden of proof a plaintiff must face, since substantially all of the facts were not in her favor. On the other hand, the decision certainly does not forelose a different result, and in fact infers that cases will be permitted to proceed, where the facts are more favorable to plaintiff.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: Heckeresq@aol.com.

Comments on this column? Send them to the editor.

Rohn Engh, Photosource International.