Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 1 of 24
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`14 Civ. 4461 (PAC)
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`------------------------------------------------------------)(
`
`LEE OSKAR LEVITIN /p/k/a LEE OSKAR,
`as an individual and d/b/a IKKE-BAD
`MUSIC; GREG ERRICO, as an individual
`and d/b/a RADIO ACTIVE MATERIAL
`PUBLISHING COMPANY; and KERI
`OSKAR, an individual,
`
`PlaintiffS,
`
`-against-
`
`SONY MUSIC ENTERTAINMENT, a
`wholly-owned subsidiary of SONY
`CORPORATION OF AMERICA, a New
`York corporation; MR. 305, INC., a Florida
`corporation; POLO GROUNDS MUSIC,
`INC., a New York corporation; SONY
`MUSIC ENTERTAINMENT CANADA
`INC., a Canadian corporation; SONY MUSIC
`ENTERTAINMENT UK, a British entity of
`unknown form; SONY MUSIC
`ENTERTAINMENT GERMANY GMBH, a
`German limited liability company; SONY
`MUSIC ENTERTAINMENT AUSTRALIA,
`LTD., an Australian limited company; SONY
`MUSIC ENTERTAINMENT ITALY, S.P.A.,
`an Italian corporation; SONY MUSIC
`ENTERTAINMENT ME)(ICO S.A. DE C.V.,
`a Mexican corporation; SONY MUSIC
`EINTERTAINMENT ESPANA, S.L., a
`Spanish limited liability company; SONY
`MUSIC ENTERTAINMENT KOREA INC., a
`South Korean corporation; and SONY MUSIC
`ENTERTAINMENT FRANCE, a French
`entity of unknown form,
`
`Defendants.
`
`------------------------------------------------------------)(
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`OPINION & ORDER
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`1
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 2 of 24
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`HONORABLE PAUL A. CROTTY, United States District Judge:
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`Plaintiffs Lee Oskar Levitin ("Levitin"), Greg Errico ("Errico"), and Keri Oskar
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`("Oskar") (collectively, "Plaintiffs"), writers of the musical composition "San Francisco Bay,"
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`bring this action for (i) domestic copyright infringement under 17 U .S.C. § 1 06; and (ii) foreign
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`copyright infringement. Plaintiffs' suit against Sony Music Entertainment ("SME"), a wholly
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`owned subsidiary of Sony Corporation of America, Mr. 305, Inc., and Polo Grounds Music, Inc.
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`(collectively, "Domestic Defendants"), and Sony Music Entertainment Canada Inc., Sony Music
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`Entertainment UK, Sony Music Entertainment Germany GmbH, Sony Music Entertainment
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`Australia, Ltd., Sony Music Entertainment Italy, s.p.a., Sony Music Entertainment Mexico S.A.
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`de C.V., Sony Music Entertainment Espafia, S.L., Sony Music Entertainment Korea Inc., and
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`Sony Music Entertainment France (collectively, "Affiliate Defendants"), arises out of the
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`international release of the song "Timber," which contains interpolations of"San Francisco
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`Bay."
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`All Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for
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`failure to state a claim. Affiliate Defendants also move to dismiss the complaint for lack of
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`personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b )(2), or in the alternative, based on the
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`doctrine of forum non conveniens. For the following reasons, the Court grants the motion to
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`dismiss pursuant to Fed. R. Civ. P. 12(b)(6) with respect to the Domestic Defendants, but denies
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`it with respect to the Affiliate Defendants. The Court denies the Affiliate Defendants' motion to
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`dismiss for lack of personal jurisdiction and forum non conveniens.
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`2
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 3 of 24
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`BACKGROUND
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`Plaintiffs co-wrote the song "San Francisco Bay" in 1978. Compl. ~ 26. That same year,
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`the song was publicly released on Levitin' s solo album titled "Before the Rain." Id. On April
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`20, 1978, Plaintiffs signed a standard form songwriters contract (the "SSC"), which transferred
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`ownership in the song's copyright as follows: 25% to Levitin's publishing company lkke-Bad;
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`25% to Errico's publishing company, Radio Active; and 50% to non-party Far Out Music
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`("FOM"), collectively referred to as "the Publisher'' in the SSC. Id. ~ 27; Ex. A to Compl. 1 On
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`July 3, 1978, FOM registered "San Francisco Bay" with the U.S. Copyright Office, listing lkke-
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`Bad, Radio Active, and FOM as the copyright claimants and incorrectly listing Plaintiffs as
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`work-for-hire authors. Id. ~ 28. FOM later submitted a supplementary registration partially
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`correcting this error with respect to Oskar, but failed to correct the error for Errico and Levitin.
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`Id. ~ 29. Accordingly, the registration erroneously states that Errico and Levitin are work-for-
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`hire authors, which is incorrect, since none of the Plaintiffs were work-for-hire authors. Id. ~~
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`29-30.
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`In 2013, a group of writers including Kesha Seybert, Armando Christian Perez (alk/a
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`"Pitbull"), and Lukasz Gottwald co-wrote "Timber," which "without Plaintiffs' permission,
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`makes copious use of the melody and harmonica riff of 'San Francisco Bay." ' Id. ~ 31.
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`Defendants created a master sound recording and music video of "Timber," performed by Pitbull
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`and Seybert. Id. ~ 32. The harmonica player in the recording, Paul Harrington, was told to
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`1 Defendants have infonned the Court of a suit in the Central District of California brought by Plaintiffs against
`FOM and non-party BMG (the administrator for FOM) to determine how to divide the 32% publisher's share of the
`proceeds from "Timber." Def. 12(b)(6) Mem. at I. While Defendants assert that the instant action is a "tactical
`maneuver by Plaintiffs to aid them in resolving the dispute in the California action," id. at 2, Plaintiffs' motives with
`respect to the California suit are irrelevant to the dispute at hand.
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`3
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`

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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 4 of 24
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`"emulate [Levitin's] harmonica performance from ' San Francisco Bay' so that the harmonica
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`lines in 'Timber' would have an identical texture and sound as 'San Francisco Bay."' !d.
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`"Timber" is thus "a reproduction of copyright-protected elements within ' San Francisco Bay,'
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`and a derivative work based on 'San Francisco Bay. ' " !d. ~ 33.
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`Domestic Defendants sought to exploit "Timber" on a worldwide basis and to that end
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`"offered, transmitted (physically and/or electronically), and otherwise made available 'Timber"'
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`to the Affiliate Defendants. !d.~ 34. On October 7, 2013, "Timber'' was released to the public
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`internationally. !d. ~ 35. With the "encouragement, authorization, and assistance" of Domestic
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`Defendants, the Affiliate Defendants digitally and physically released "Timber" in their
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`respective countries: the United Kingdom, Italy, Germany, Mexico, Spain, Canada, Australia,
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`France, and South Korea. !d. Domestic and Affiliate Defendants have wrongfully profited from
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`the exploitation of"Timber" in these countries. !d. "Timber" has been hugely successful and
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`has reached top chart positions in the U.S., U.K., Canada, Germany, and on Europe's "Euro
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`Digital Songs" chart, and has achieved multi-platinum sales in the U.S., Australia, Canada, and
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`South Korea. !d.~ 36. Defendants " ' might' have obtained a license from [FOM] purportedly
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`giving worldwide permission to use ' San Francisco Bay' in ' Timber,"' but have never obtained
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`the requisite license from Plaintiffs for such use. !d. ~ 37. Without a license from all of the
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`copyright holders of"San Francisco Bay," Defendants cannot exploit "Timber" in the countries
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`of the Affiliate Defendants. !d.~ 38. Affiliate Defendants have thus violated the copyright laws
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`of their respective countries by infringing on Plaintiffs' "moral and economic rights." !d. ~ 41.
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`Plaintiffs allege that Domestic Defendants have committed copyright infringement in the
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`following ways:
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`4
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 5 of 24
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`• Violating 17 U.S.C. § 1 06(1) and (2) by "creating duplicate master tapes and/or
`electronic files of 'Timber' for distribution to and/or public performances via streaming
`or other broadcasting to the Sony Affiliate Defendants, among others, abroad" while in
`the United States. ld. ~ 43.
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`• Violating 17 U.S.C. § 106(3) and/or (4) by "distributing and/or streaming or other
`broadcasting of ' Timber"' to the Affiliate Defendants abroad while in the United States.
`ld. ~ 44.
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`• Violating 17 U.S.C. § 1 06(3) by "making 'Timber' available" to the Affiliate Defendants
`"for download through the Internet and/or via Domestic Defendants' intranet/extranet(cid:173)
`based, worldwide matrix distribution systems" while in the United States. Id. ~ 45.
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`• Violating 17 U.S.C. § 1 06(3) by "offering to distribute copies of 'Timber' to the Sony
`Affiliate Defendants, among others, for purposes of further distribution and/or public
`performance abroad" while in the United States. Id. ~ 46.
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`• Violating 17 U .S.C. § 106 by "signing agreements with the Sony Affiliate Defendants,
`among others, for the foreign exploitation (e.g., foreign reproduction, distribution, and/or
`public performance) of'Timber'" while in the United States. Id. ~ 47.
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`• Violating 17 US.C. § 106 by "authorizing the ... Affiliate Defendants, among others, to
`commit actions abroad which infringe and continue to infringe Ikke-Bad's and Radio
`Active's various exclusive rights" while in the United States. ld. ~ 48.
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`Plaintiffs allege that the Affiliate Defendants have an agency relationship with SME such
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`that Affiliate Defendants would undertake the activities performed by SME in New York, were it
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`not for the agency relationship. ld. ~ 23. The products marketed abroad by Affiliate Defendants
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`derive from the recordings of artists signed in New York, and Affiliate Defendants market their
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`material in New York exclusively through SME. Id. ~ 24. Additionally, a matrix agreement
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`grants SME and each Affiliate Defendant the exclusive right to manufacture and distribute
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`within its territory any recording in the repertoire of SME. I d. ~ 24 n.l .
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`Affiliate Defendants have each submitted a declaration describing how each Affiliate
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`Defendant operates independently, does not own property or assets in New York, does not share
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`employees with SME, did not take any actions in New York to obtain "Timber," and would be
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`severely burdened by facing a lawsuit in New York. See Compendium ofDeclarations of Sony
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`5
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 6 of 24
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`Music Foreign Affiliate Defendants. Plaintiffs have submitted exhibits which they argue
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`demonstrate that the Affiliate Defendants are all part of a global conglomerate, for example a
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`printout of Sony Corporation of America's website, which describes SME as a "global recorded
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`music company" that "operates in 43 countries and territories worldwide" with headquarters in
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`New York. See Freundlich Decl., Ex. 2 at 2.
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`DISCUSSION
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`I.
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`Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
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`A. LegalStandard
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`On a motion to dismiss, the Court accepts as true all well-pleaded factual allegations in
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`the complaint and construes the complaint in the light most favorable to the plaintiff. Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 572 (2007). The complaint must "provide the grounds upon
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`which [plaintiffs'] claim rests through factual allegations sufficient 'to raise a right to relief
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`above the speculative level."' ATSI Commc 'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d
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`Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court assesses only "the legal feasibility of
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`the complaint" at this stage and does not "assay the weight of the evidence which might be
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`offered in support thereof." Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011)
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`(internal citations and quotation marks omitted). The Court "may consider ... any written
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`instrument attached to the complaint as an exhibit or any statements or documents incorporated
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`in it by reference," as well as "matters of which judicial notice may be taken, [and] documents
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`either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing
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`suit." Kalyanaram v. Am. Ass 'n of Univ. Professors, 742 F.3d 42, 44 n.1 (2d Cir. 2014) (internal
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`citations, alterations, and quotation marks omitted); ATSI, 493 F.3d at 98.
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`6
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 7 of 24
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`B. Analysis
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`Defendants argue that Plaintiffs' U.S. Copyright Act claim against Domestic Defendants
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`fails because Domestic Defendants possess a valid license to the work and because the complaint
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`alleges no "predicate acts" on the part of Domestic Defendants that constitute a violation ofthe
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`U.S. Copyright Act. See Def. 12(b)(6) Mem. Defendants argue that the claim against Affiliate
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`Defendants must be dismissed because foreign copyright laws requiring licenses from all co-
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`owners of a copyrighted work do not apply in the U.S. and because agreements between the
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`parties provided FOM with the right to license the work worldwide. Plaintiffs oppose the
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`motion, alleging that Domestic Defendants committed illegal predicate acts, that foreign
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`copyright law applies to the alleged foreign infringements, and that Defendants' interpretation of
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`the relevant contracts is incorrect and at least raises a question of fact. Pl. 12(b)(6) Mem.
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`1. Claim Against Domestic Defendants Under the U.S. Copyright Act
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`Defendants argue that Plaintiffs have failed to state a claim under the U.S. Copyright Act
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`because Domestic Defendants had a license to the work and, under the U.S. Copyright Act, a co-
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`owner may license a copyright unilaterally, without the authorization of the co-owners. 2 In
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`addition, Domestic Defendants argue that they cannot be liable for alleged violations of foreign
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`copyright laws because Plaintiffs have not alleged that any actionable predicate acts of
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`infringement were taken by Domestic Defendants in the U.S. Def. 12(b)(6) Mem. at 11-16.
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`The U.S. Copyright Act does not have extraterritorial application, and district courts do
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`not have subject matter jurisdiction over infringement occurring outside of the United States.
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`Update Art, Inc. v. Modiin Publ 'g, Ltd. , 843 F.2d 67, 73 (2d Cir. 1988); De Bardossy v. Puski,
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`2 Plaintiffs do not object to Domestic Defendants' argument that Domestic Defendants are not liable based on their
`exploitation of "Timber" in the U.S. because they properly obtained a license rrom FOM for use of the work in the
`U.S. Pl. l2(b)(6) Mem. at 5. Under U.S. copyright law, a co-owner of a copyright may grant a license to use the
`work without the consent of the other owners. Davis v. Blige, 505 F.3d 90, 100 (2d Cir. 2007).
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`7
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 8 of 24
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`763 F. Supp. 1239, 1243 (S.D.N.Y. 1991). Accordingly, acts constituting copyright
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`infringement under foreign law do not constitute a violation of the U.S. Copyright Act.
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`Subafilms, Ltd. v. MGM-Pathe Commc 'ns Co., 24 F.3d 1088, 1094 (9th Cir. 1994). There is an
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`exception to this rule, where an individual, who commits an act of infringement in the U.S.,
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`which permits further reproduction outside of the U.S.- a so-called "predicate act"-is liable for
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`infringement under the U.S. Copyright Act. Update Art, 843 F.2d at 73. But the copyright
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`infringement plaintiff "must first demonstrate that the domestic predicate act was itself an act of
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`infringement in violation of the copyright laws." Fun-Damental Too, Ltd. v. Gemmy Indus.
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`Corp. , 1996 WL 724734, at *4-5 (S.D.N.Y. Dec. 17, 1996) (finding that transporting a sample
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`product from the U.S. to a Chinese factory, as well as authorization and approval of the Chinese
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`factory's activities from the U.S., did not constitute an actionable predicate act). "The clear
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`governing legal rule is that the predicate act occurring in the United States must itself constitute
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`infringement under the Copyright Act." Music Sales Ltd. v. Charles Dumont & Son, Inc., 800 F.
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`Supp. 2d 653, 660 (D.N.J. 2009) (emphasis in original).
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`Plaintiffs have failed to allege facts demonstrating a predicate act that in itself violates the
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`U.S. Copyright Act. None of the actions taken by Domestic Defendants constitute a violation of
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`U.S. copyright law, when undertaken within the U.S. For example, allegedly creating duplicate
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`master tapes or electronic files, distributing or streaming "Timber," offering to distribute copies
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`of"Timber," signing agreements, and "authorizing" Affiliate Defendants to commit infringement
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`abroad do not constitute violations of U.S. copyright law because Domestic Defendants
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`possessed a license considered valid under U.S. law.
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`8
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 9 of 24
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`Plaintiffs rely on outdated and overruled case law holding that the "authorization" of
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`copyright infringement abroad constitutes a predicate act in violation of the Copyright Act. See
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`Armstrong v. Virgin Records, Ltd. , 91 F. Supp. 2d 628, 634 (S.D.N.Y. 2009) ("This line of cases
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`[treating authorization of foreign copyright infringement as an actionable predicate act] has been
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`subsequently repudiated, and it is now generally accepted that there can be no liability under the
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`Copyright Act for authorizing an act that itself could not constitute infringement of rights
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`secured by United States law.") (citing Subafilms, 24 F.3d 1088, 1093-94). Unless "the act
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`taking place in the United States ... itselfviolate[s] the Copyright Act," Fun-Damental Too,
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`1996 WL 724734, at *5, there is no cause of action under the U.S. Copyright Act for foreign
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`copyright infringement. Here, the copies and distributions made by Domestic Defendants were
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`not unauthorized or somehow disallowed by Domestic Defendants' license. It is only when used
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`or sold abroad that the copies become allegedly infringing under the laws of other countries.
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`See, e.g., Music Sales Ltd. , 800 F. Supp. 2d at 659-60 ("If Defendant had made unauthorized
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`copies of the music in the United States and then distributed those copies abroad, his conduct
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`might have given rise to a cause of action ... Because Defendant apparently possesses
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`distribution rights of the sheet-music within the United States, however . . . no predicate
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`infringing act occurred within the United States."). Domestic Defendants cannot be held liable
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`for copyright infringement when their actions fail to constitute a violation of U.S. copyright law.
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`Plaintiffs rely on two cases in support of their argument that there are predicate acts
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`constituting infringement under U.S. copyright law. Pl. 12(b)(6) Mem. at 8-9. In National
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`Football League v. Primetime 24 Joint Venture, 211 F.3d 10 (2d Cir. 2000), however, the issue
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`involved interpretation of the phrase "public performance," a question not relevant here. And the
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`Court declines to adopt the reasoning of Curb v. MCA Records, 898 F. Supp. 586 (M.D. Tenn.
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 10 of 24
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`1995), which not only represents a different procedural posture and accordingly a differing set of
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`applicable standards, but also rejects case law that has been accepted in this circuit. See Well(cid:173)
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`Made Toy Mfg. Corp. v. Lotus Onda Indus. Co., Ltd. , 2003 WL 42001, at *5-6 (S.D.N.Y. Jan. 6,
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`2003) (noting the Second Circuit's acceptance of Subajilms).
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`For these reasons, the Court finds that Plaintiffs have failed to allege any violation of the
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`U.S. Copyright Act by the Domestic Defendants. Accordingly, Plaintiffs' claim for copyright
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`infringement against Domestic Defendants is dismissed.
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`2. Claim Against Affiliate Defendants for Foreign Copyright Infringement
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`Plaintiffs urge that under the copyright laws of each country of the Affiliate Defendants,
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`all co-owners of a copyright must consent to the exploitation of a copyrighted work. Com pl. ~~
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`53-58. Affiliate Defendants respond that Plaintiffs' claim must be dismissed on two grounds:
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`first, because these foreign copyright laws do not apply in this case, and second, because the
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`parties' agreements allow FOM to license the work worldwide. Def. 12(b)(6) Mem. at 16-23.
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`The Court rejects both arguments and denies Affiliate Defendants' motion to dismiss the foreign
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`copyright claims against them.
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`a. Applicability of Foreign Copyright Law
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`Affiliate Defendants assert that a determination of the legality of Affiliate Defendants'
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`claims of a worldwide license must occur under U.S. law. This would result in a finding in favor
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`of Affiliate Defendants, since U.S. law permits the licensing of a work with the approval of only
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`one co-owner. Affiliate Defendants argue that under !tar-Tass v. Russian Kurier News Agency,
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`153 F.3d 82 (2d Cir. 1998), ownership of the relevant copyright is determined by U.S. law, and
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`therefore foreign laws invalidating licenses issued by less than all co-owners are inapplicable to
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`this case and no infringement occurred.
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 11 of 24
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`This argument is at odds with the !tar-Tass holding. Affiliate Defendants would have the
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`Court apply U.S. law to a question of foreign copyright infringement. !tar-Tass holds that
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`questions of ownership are determined by the laws of the country with the most significant
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`relationship to the work in question (here, undisputedly, the U.S.), while questions of
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`infringement are decided by the location of the alleged infringement. I d. at 90-92. Affiliate
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`Defendants argue that in light of !tar-Tass, an analysis of ownership under U.S. law would show
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`that FOM, as a co-owner, had the right to license "Timber" to the Affiliate Defendants, and
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`therefore no foreign laws would be applicable. This argument rings hollow. The question before
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`the Court is not one of ownership, but rather of infringement. And the question of infringement
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`is answered in accordance with the laws of the country of infringement.
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`Affiliate Defendants rely on Corbello v. Devito, which found that "the foreign
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`infringement claims will be controlled by the antecedent ownership issues resolved under U.S.
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`law." 844 F. Supp. 2d 1136, 1157 (D. Nev. 2012), rev'd on other grounds by 777 F.3d 1058 (9th
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`Cir. 2015).3 But the Court does not find that reasoning compelling. The Corbello court provides
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`no explanation for its conclusion that "the validity of a copyright license is more akin to
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`ownership [than] infringement for the purposes of an infringement action" or that "once one has
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`been declared to be a licensee under the law of the appropriate jurisdiction the issue is settled,
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`and the person is a licensee for the purposes of an infringement action under the law of any other
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`jurisdiction." ld. at 1157. Corbello's conclusions are not supported by case law and indeed
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`violate the !tar-Tass rule, that infringement questions are analyzed under the law of the place of
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`3 The other cases relied on by Affiliate Defendants, Sadhu Singh Hamdad Trust v. Ajit Newspaper Adver., Mktg. &
`Commc'ns, Inc., 503 F. Supp. 2d 577, 584-85 (E.D.N.Y. 2007), and Shaw v. Rizzoli lnt 'l Pub., Inc., 1999 WL
`160084, at *5 (S.D.N.Y. Mar. 23, 1999), each apply the law offtar-Tass, examining ownership according to the
`laws of the country with the most significant relationship to the work and infringement according to the laws of the
`placeofinfringement. SeeDef.12(b)(6)Mem. at 17-18.
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 12 of 24
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`infringement. !tar-Tass teaches that while "[w]hether a copy infringes depends in part on the
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`scope of the interest of the copyright owner," "the nature of a copyright interest is an issue
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`distinct from the issue of whether the copyright has been infringed." 153 F.3d at 91. Likewise
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`here, while the two issues are connected, the copyright here is owned by FOM, Ikke-Bad, and
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`Radio Active collectively, and properly licensed to other parties in the U.S. by FOM. Whether
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`the copyright has been infringed by the purported worldwide licensing here is to be determined
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`by the laws of each country in which infringement is alleged.
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`In seeking dismissal of the claims against Domestic Defendants under the U.S. Copyright
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`Act, Defendants argue vehemently that the U.S. copyright laws do not apply extraterritorially.
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`This principle continues to be true even when it ceases to support Affiliate Defendants'
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`argument. The Copyright Act does not apply extraterritorially, and thus cannot determine
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`questions of infringement in the countries of Affiliate Defendants.
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`b. Contractual Agreements
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`Affiliate Defendants also argue that Plaintiffs' claim against Affiliate Defendants must
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`fail because a series of agreements between the parties permit the worldwide licensing of the
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`work by FOM under all relevant copyright regimes. Affiliate Defendants assert that exclusive
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`writer agreements signed by Levitin and Errico in 1972 and 1977, respectively, grant worldwide
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`copyrights and exclusive worldwide publication rights to FOM, and that the SSC for San
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`Francisco Bay "recognizes these agreements and states that they are controlling." Def. 12(b)(6)
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`Mem. at 20. In addition, Affiliate Defendants argue that the SSC independently grants FOM the
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`right to administer the worldwide copyright of San Francisco Bay. !d. at 21.
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 13 of 24
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`A reading of these contracts, however, does not reveal that as a matter oflaw FOM was
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`given the exclusive right to unilaterally license "San Francisco Bay" worldwide. At this stage,
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`the Court does not accept Affiliate Defendants' reading of the SSC, interpreting the term
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`"Publisher" to refer exclusively to FOM when the agreement specifically defines "Publisher" as
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`a combination ofFOM, Ikke-Bad, and Radio Active. See Compl., Ex. A. Nor does the Court
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`accept Affiliate Defendants' reading of the three separate contracts together granting FOM
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`exclusive worldwide copyrights. Where contract language is "susceptible to differing
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`interpretations, each of which may be said to be as reasonable as another, then the interpretation
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`ofthe contract becomes a question of fact." Harris v. Simon & Schuster, Inc., 646 F. Supp. 2d
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`622, 630-31 (S.D.N.Y. 2009) (internal citations and quotation marks omitted). Affiliate
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`Defendants' intertwined and interdependent reading of the contracts is but one possible reading
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`of these agreements.4 Plaintiffs have suggested, and the Court finds reasonable, alternative
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`interpretations of these contracts, and Defendants have not shown that their interpretation is
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`correct as a matter oflaw. Accordingly, whether the contracts grant FOM the right unilaterally
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`to license "San Francisco Bay" worldwide is a question that cannot be resolved on a motion to
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`dismiss. Affiliate Defendants' motion to dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ.
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`P. 12(b)(6) is denied.
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`4 For example, the Court notes that Defendants use a change in typeface in support of their argument that ,115 of the
`SSC specifically considered and incorporated the terms of the relevant songwriter' s agreements. Def. 12(b)(6)
`Reply at 6 n.4. There are numerous other reasonable explanations for a change in typeface in a contract from 1978.
`
`13
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 14 of 24
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`II.
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`Affiliate Defendants' Motion to Dismiss for Lack of Personal Jurisdiction Pursuant
`to Fed. R. Civ. P.12(b)(2) or On the Grounds of Forum Non Conveniens
`
`A.
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`Personal Jurisdiction
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`1. Applicable Law
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`A motion to dismiss under Fed. R. Civ. P. 12(b)(2) will be granted where the court lacks
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`personal jurisdiction over the moving party. The burden of establishing jurisdiction falls on the
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`plaintiff, see In re Terrorist Attacks on Sept. II, 2001, 714 F.3d 659, 673 (2d Cir. 2013), but a
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`plaintiff challenged on personal jurisdiction prior to discovery may defeat the motion simply by
`<•
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`demonstrating a prima facie showing of jurisdiction based on legally sufficient allegations of
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`jurisdiction, see Dorchester Fin. Sec., Inc. v. Banco BRJ, SA., 722 F.3d 81 , 83-85 (2d Cir. 2013).
`
`Personal jurisdiction is authorized by "the long-arm statute of the forum state" and limited by
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`"the requisites of due process." Whitaker v. Am. Telecasting, Inc., 261 F .3d 196, 208 (2d Cir.
`
`2001); accord In re Roman Catholic Diocese of Albany, N.Y., Inc. , 745 F.3d 30,37-38 (2d Cir.
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`2014). New York's long-arm statute "provides, in pertinent part, that a court ' may exercise
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`personal jurisdiction over any non-domiciliary ... who in person or through an agent . ..
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`transacts any business within the state,' so long as the plaintiff's ' cause of action aris[es] from'
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`that 'transact[ion] ."' Licci ex ref. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 60 (2d
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`Cir. 2012) (alterations in original) (quoting N.Y. C.P.L.R. § 302(a)). The Comi must examine
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`both "( 1) whether the defendant transacts any business in New York and, if so, (2) whether this
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`cause of action arises from such a business transaction." Best Van Lines, Inc. v. Walker, 490
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`F.3d 239, 246 (2d Cir. 2007) (internal citations, alterations, and quotation marks omitted).
`
`2. Analysis
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`Defendants argue that the Court lacks personal jurisdiction over the Affiliate Defendants
`
`and so must dismiss the Complaint. Defendants asse11 that the Supreme Court's narrowing of the
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`14
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`

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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 15 of 24
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`general jurisdiction requirement in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), strips this
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`Court of jurisdiction over Affiliate Defendants, and that the Complaint fails to allege activities in
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`New York sufficient to confer specific jurisdiction. 5 Def. 12(b )(2) Mem. at 6-14.
`
`The Court agrees with Defendants that Plaintiffs cannot prevail on an agency theory of personal
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`jurisdiction. Def. 12(b)(2) Mem. at 8-11; Def. 12(b)(2) Reply at 4-5. The use of agency to
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`demonstrate general jurisdiction is now of dubious validity. See Sonera Holding B. V v.
`
`Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014) ("Daimler expressed doubts as to the
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`usefulness of an agency analysis . . . that focuses on a forum-state affiliate's importance to the
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`defendant").
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`Plaintiffs assert that they are using an agency theory to demonstrate specific jurisdiction
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`over the Affiliate Defendants. Pl. 12(b)(2) Mem. at 10-14. But Plaintiffs cannot base an
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`argument for specific jurisdiction on an agency theory because they have not even attempted to
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`allege that Affiliate Defendants exert any control over SME, a necessary element to demonstrate
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`agency for the purposes of specific jurisdiction. See Int 'l Diamond Imps., Inc. v. Oriental Gemco
`
`(N.Y.), Inc., 2014 WL 6682622, at *12 (S.D.N.Y. Nov. 24, 2014).
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`Plaintiffs have, however, made a prima facie showing of specific jurisdiction over the
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`Affiliate Defendants. Under C.P.L.R. 302(a)(1), proof of one transaction in New York is
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`sufficient to demonstrate jurisdiction. See C.P.L.R. § 302(a)(1) (establishing personal
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`jurisdiction over those who "transact[] any business within the state or contract[] anywhere to
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`supply goods or services in the state."). Comis have noted that "[a ]lthough it is impossible to
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`5 The parties dispute whether the Court can consider the additional evidence submitted by Defendants in support of
`this motion, that is, declarations from SME employees and employees of Affiliate Defendants regarding the
`independence of the Affiliates and lack of contacts in the U.S. The Court may consider materials outside the
`pleadings on a motion to dismiss for lack of personal jurisdiction, but such evidence must be considered in the light
`most favorable to the plaintiff and all factual disputes must be resolved in the plaintiff's favor. See Gale v. Smith &
`Nephew PLC, 2015 WL 328127, at *2 (S.D.N.Y. Jan. 20, 2015); AEP-PRJ Inc. v. Galtronics Corp. Ltd., 2013 WL
`4400833, at *3 (S.D.N.Y. Aug. 13, 2013).
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`15
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`Case 1:14-cv-04461-PAC Document 45 Filed 04/22/15 Page 16 of 24
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`precisely fix those acts that constitute a transaction of business, [the New York Court of
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`Appeals' ] precedents establish that it is the quality of the defendants' New York contacts that is
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`the primary consideration." South Seas Holding Corp. v. Starvest Grp., Inc., 2015 WL 1084309,
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`at *2 (N.Y. Sup. Ct. 2015) (internal citation and alteration omitted). A plaintiff must also show
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`that there exists a "substantial nexus between the business and the cause of action." Grand River
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`Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 166 (2d Cir. 2005) (internal citation and
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`quotation marks omitted).
`
`Here, Plaintiffs have alleged that Affiliate Defendants obtained the recording of "Timber"
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`from New York, Compl. ~~ 43-45; agreed to the further distribution ofthe recording in New
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`York, id. ~~ 46; and executed contracts for the foreign exploitation of "T