Rundquist v. Vapiano SE

• Decision Date: 20 July 2011
• Docket Number: Civil Action No. 09–2207 (BAH).
• Citation: 798 F.Supp.2d 102
• Parties: Ewa–Marie RUNDQUIST, Plaintiff, v. VAPIANO SE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

798 F.Supp.2d 102

Ewa–Marie RUNDQUIST, Plaintiff,

v.VAPIANO SE, et al., Defendants.

Civil Action No. 09–2207 (BAH).

United States District Court, District of Columbia.

July 20, 2011.

Scott H. Christensen, Hughes Hubbard & Reed, LLP, Washington, DC, for Plaintiff.

Gregory F. Hauser, Wuersch & Gering, LLP, New York, NY, Edward T. Colbert, Kenyon & Kenyon, Washington, DC, Gabriel Amin Assaad, McLean, VA, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

In this case, an international photographer claims that Vapiano restaurants are illegally exploiting her copyrighted works to achieve their chic look.PlaintiffEwa–Marie Rundquist alleges that Vapiano restaurants in the United States and around the world are unlawfully displaying her copyrighted photographs as a central part of their décor.The plaintiff initiated this case against three corporations she believes to be responsible for this infringement: Vapiano SE, a European company based in Germany, and Vapiano International, LLC and Vapiano Franchise USA, LLC, both of which are incorporated in the United States.¹DefendantVapiano SE moves to dismiss all claims against it on grounds that the Court lacks personal jurisdiction and, in the alternative, moves to dismiss all claims relating to infringement occurring in Vapiano restaurants outside the United States for lack of subject matter jurisdiction and on grounds of forum non conveniens.The Court concludes that the plaintiff is entitled to a sixty-day period of jurisdictional discovery to ascertain the facts about what Vapiano SE characterizes as the plaintiff's “guesswork” about the company's contacts with this forum.Vapiano SE's motion to dismiss for lack of personal jurisdiction is therefore denied without prejudice.With regard to allegations concerning infringement occurring outside the United States, the Court grants in part and denies in part Vapiano SE's motion to dismiss for lack of subject matter jurisdiction, holding that the Court does not have subject matter jurisdiction over Count I or Count II of the Amended Complaint to the extent that the counts assert Vapiano SE's direct, contributory, or vicarious liability under the Copyright Act for infringement taking place wholly outside the United States, but allowing plaintiff's other claims under the Copyright Act and foreign copyright laws to proceed.Finally, the Court denies Vapiano SE's motion to dismiss claims regarding foreign acts of infringement for forum non conveniens.

I.BACKGROUND

PlaintiffEwa–Marie Rundquist, a Swedish citizen, is a “highly experienced fashion, lifestyle, and advertising photographer” based in Stockholm, Sweden.Am. Compl. ¶¶ 2, 4, 12.According to the Amended Complaint, her work has appeared in numerous well-known magazines, such as Vogue, Elle, and Glamour, and has been featured in advertising campaigns for a number of international brands.Id.¶ 12.

In addition to her fashion and advertising work, the plaintiff's pictures have also appeared in several cookbooks, including a cookbook entitled La Pizza: The True Story from Naples(hereinafter “ La Pizza ”).Id.¶ 13.La Pizza contains a number of the plaintiff's “original and unique” photographs of Italian street scenes and Italians eating and cooking pizza (hereinafter the “Protected Photographs”).Id.¶¶ 14–15.Plaintiff states that she owns these photographs and that they“constitute copyrightable subject matter,” which is protected under the Copyright Act and by provisions of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter “Berne Convention”), to which the United States is a signatory.²Id.¶¶ 3, 15, 17.Every copy of La Pizza contains a notice that the plaintiff is the copyright owner of certain photographs appearing in the book and provides the page numbers on which the plaintiff's Protected Photographs appear.Id.¶ 16.

Plaintiff alleges that her Protected Photographs are being used without permission as a “central décor element” in an upscale Italian restaurant chain named Vapiano, which has restaurants located in the United States and around the world.Id.¶¶ 1, 24–25.Specifically, the plaintiff alleges that large mural-sized black and white reproductions of her Protected Photographs appear in all Vapiano restaurants, which have the same décor and a consistent look.Id.¶¶ 23, 25.Plaintiff also alleges that her Protected Photographs appear on Vapiano websites.Id.¶ 28.In addition to using her photographs without authorization, in no instance is the plaintiff referenced as the photographer or owner of the Protected Photographs.Id.¶ 26.

On November 20, 2009, the plaintiff filed a Complaint in this Court against Vapiano SE; Vapiano International, LLC(hereinafter “Vapiano International”); and Vapiano Franchise USA, LLC(hereinafter “Vapiano USA”).The plaintiff alleges that defendantVapiano SE, a European public corporation based in Germany, is a franchisor that has established sixty Vapiano restaurants in over sixteen countries around the world, and has more than a hundred new restaurants in development.Id.¶¶ 5, 18.Vapiano SE is alleged to direct and control the appearance and other operational aspects of all Vapiano restaurants.Id.¶ 18.Additionally, plaintiff claims that Vapiano SE has ownership interests in many, if not all, Vapiano restaurants.Id.

The plaintiff also asserts claims against defendants Vapiano International and Vapiano USA, both of which are Delaware limited liability companies with their principle place of business in McLean, Virginia.Id.¶¶ 6, 7.These companies are alleged to be Vapiano SE's affiliates that are controlled by Vapiano SE and act as Vapiano SE's agents with respect to Vapiano restaurants in the United States.Id.¶ 19.

The plaintiff states that the defendants operate six Vapiano restaurants in the United States, including two in the District of Columbia, and are planning to open eighteen more restaurants in other U.S. cities.Id.¶¶ 19–20.The defendants also market, own, operate, license or franchise thirty-five Vapiano restaurants in at least fifteen foreign countries.Id.¶ 21.In all of these restaurants, the plaintiff alleges that the defendants“collectively require and direct ... prominent[ ] display [of]Plaintiff's Protected Photographs as a central part of those restaurants' décor.”Id.¶ 26.

Prior to initiating this case, the plaintiff claims that on numerous occasions she informed the defendants that she objected to the unauthorized and unlawful use of her photographs.Id.¶ 29.On November 7, 2008 and January 27, 2009, plaintiff, through counsel, advised the defendants that their display of plaintiff's Protected Photographs infringed plaintiff's copyrights and demanded that they immediately cease the reproduction and display of the photographs.Id.¶ 31.The defendants allegedly refused, and continue to display her Protected Photographs in their restaurants.Id.¶ 32.

The plaintiff now asserts the following three causes of action against the defendants for their allegedly infringing copying and display of the Protected Photographs in Vapiano restaurants in the U.S. and abroad and on their websites: (1) direct copyright infringement in violation of the Copyright Act, 17 U.S.C. § 501 et seq., Am. Compl.¶¶ 35–45;(2) contributory and vicarious copyright infringement in violation of the Copyright Act, id.¶¶ 46–52; and (3) copyright infringement in violation of the copyright laws of fifteen foreign countries (hereinafter “Foreign Copyright Laws”), id.¶¶ 53–59.³For these alleged unlawful acts, the plaintiff seeks a permanent injunction to enjoin use of her Protected Photographs in Vapiano restaurants and on the defendants' websites, and a monetary judgment, including actual damages and an accounting of the gains and income derived by the defendants from their use of the plaintiff's protected works.Am. Compl., Prayer for Relief, ¶¶ 1–4.

After filing her Complaint on November 20, 2009, the plaintiff amended her pleading on April 22, 2010.⁴Am. Compl., ECF No. 11.Defendants Vapiano International and Vapiano USA answered the Amended Complaint on May 5, 2010.ECFNos. 12–13.⁵On September 3, 2010, defendantVapiano SE moved to dismiss the allegations against it for lack of personal jurisdiction, and also moved to dismiss all claims relating to acts of infringement occurring outside the United States for lack of subject matter jurisdiction and for forum non conveniens.Vapiano SE Mot. Dismiss, ECF No. 17.These motions, which are not joined by defendants Vapiano International or Vapiano USA, are currently pending before the Court.⁶

As explained below, Vapiano SE's motion to dismiss for lack of personal jurisdiction is denied because the plaintiff has requested, and is entitled to, a period of discovery regarding Vapiano SE's ties to the District of Columbia prior to the adjudication of this motion.Vapiano SE has also moved to dismiss Counts I and II of the plaintiff's Amended Complaint to the extent that these counts allege infringement in foreign nations, and Count III for lack of subject matter jurisdiction.The Court denies in part and grants in part this motion, dismissing only the allegations contained in Counts I and II of the Amended Complaint that assert Vapiano SE's direct, contributory and vicarious liability under the Copyright Act for the alleged display of Protected Photographs in foreign Vapiano restaurants.The Court maintains jurisdiction to hear such claims against Vapiano International and Vapiano USA.The Court also maintains jurisdiction to hear plaintiff's claims in Count III of the Amended Complaint, which allege that all of the defendants violated the copyright laws of foreign countries.The Court further denies Vapiano SE's motion to dismiss claims concerning foreign infringement on grounds of forum non conveniens.

II.VAPIANO SE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

DefendantVapiano SE...