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Personal Jurisdiction Roundup
The issue of whether a court has personal jurisdiction over a party in an entertainment industry lawsuit is determined, as in other types of litigation, on a state-by-state basis, subject to whether this jurisdiction meets due process. The case outcomes vary.
For example, in a music sampling litigation alleging misappropriation and unjust enrichment, the U.S. District Court for the Northern District of Illinois ruled this summer that distribution activity by an affiliate of defendant UMG Recordings, part of the world's largest music company, didn't create a “substantial connection” between UMG and Illinois for purposes of specific personal jurisdiction (i.e., that arising out of the facts in the case). The district court was satisfied by a UMG affidavit that “avers that UMG and UMGCS [distributor UMG Commercial Services] have the same corporate parent, but they operate separately from each other ' in particular, UMG neither owns nor controls UMGCS.” The court added that plaintiff Syl Johnson “offers no evidence of geographically-focused targeting that could subject UMG to personal jurisdiction on the basis of its alleged online sales.” Johnson v. Barrier, 15-CV-03928.
By contrast, the U.S. District Court for the Middle District of Tennessee ruled in July that it had specific personal jurisdiction over the company that releases online albums of musical performances from the now-defunct Bottom Line nightclub in New York City. See, Ian v. Bottom Line Record Co., 3:16-cv-00187. Tennessee-based artist Janis Ian filed a copyright infringement and right of publicity suit over the alleged unauthorized online release of some of her Bottom Line performances. The district court found: “The allegations that Bottom Line maintains a website where it can sell the allegedly-infringing material to residents of Tennessee is likely insufficient, by itself, for the Court to exercise personal jurisdiction over Bottom Line without allegations that residents of Tennessee have actually bought the allegedly-infringing material. ' However, the running of the website coupled with Bottom Line's attorneys negotiating and executing a contract via telephone calls, emails, and letters to Ian and her attorneys in Tennessee, is sufficient activity toward Tennessee to constitute purposeful availment.”
And finally, the Georgia Court of Appeals decided in July that the state's courts had personal jurisdiction under Georgia's long-arm statute, OCGA '9-10-91 ' which is broadly interpreted ' over EMI music publishing companies in a dispute over the British-based EMI's purchase of a Georgia-based publisher. See, Weathers v. Dieniahmar Music LLC (DML), A16A0663. EMI contended it signed no contracts nor physically transacted business in the state. But the court of appeals explained: “The record before us shows that EMI's relevant contact with Georgia stems in part from the Co-Publishing Agreement with DML. That agreement created an ongoing relationship whereby DML, a Georgia business co-owned and operated by Georgia residents, would develop and broker musical talent (also Georgia residents) for profitable publication by EMI elsewhere. This relationship resulted in multiple, ongoing payments to DML for a variety of continued uses of artistic work identified and developed by DML over a period of ten years. Further, EMI's subsequent purchase of Georgia-based DML establishes additional contact with Georgia. Also, there is evidence that, as part of its music publishing business, EMI leased a recording studio located in Atlanta, and its employees operated out of the studio to conduct EMI's business. These facts demonstrate purposeful acts and business transacted in Georgia on the part of EMI.”
Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. His most recent book is Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.
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