Traynor v. Liu

• Decision Date: 17 July 2007
• Docket Number: Civ. No. 06-441-SLR.
• Citation: 495 F.Supp.2d 444
• Parties: Elizabeth TRAYNOR, Plaintiff, v. Davy LIU, Defendant.
• Court: U.S. District Court — District of Delaware

Page 444

495 F.Supp.2d 444

Elizabeth TRAYNOR, Plaintiff, v. Davy LIU, Defendant.

Civ. No. 06-441-SLR.

United States District Court, D. Delaware.

July 17, 2007.

Patricia Smink Rogowski, Esquire, and Geoffrey A. Zelley, Esquire, Connolly, Bove, Lodge & Hutz LLP, Wilmington, DE, for Plaintiff. Of Counsel: Jennifer Fraser, Esquire, and Michael L. Lovitz, Esquire, Connolly Bove Lodge & Hutz LLP, Washington, DC, and Los Angeles, CA.

Stephen P. Casarino, Esquire, and Sarah C. Brannan, Esquire, Casarino, Christman & Shalk, P.A., Wilmington, DE, for Defendant.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

On July 20, 2006, Elizabeth Traynor ("plaintiff") filed the action at bar against Davy Liu ("defendant"), alleging copyright infringement under 17 U.S.C. § 501 and common law breach of contract. (D.I. 1) On October 17, 2006, defendant filed a motion to dismiss the complaint for lack of personal jurisdiction and improper venue. (D.I. 10) On April 5, 2007, defendant filed a motion for a protective order, requesting that plaintiff be required to either depose him and his wife via videoconference or pay for defendant's attorney, who is located in Delaware, to travel to California and attend the depositions in person. (D.I. 38) Finally, on May 7, 2007, plaintiff filed a motion to strike defendant's reply brief in support of his motion for a protective order, on the grounds that it had been filed four days after the applicable deadline. (D.I. 41) These three motions are currently pending before the court. The court has jurisdiction over the matter at bar pursuant to 28 U.S.C. §§ 1338 and 1367.

II. BACKGROUND¹

Plaintiff, who describes herself as "a skilled artist and the creator of numerous works of authorship, including works of art, photographs, [and] written work,"² is a resident of the State of Delaware. (D.I. 1 at ¶¶ 1, 8) Prior to July 2004, when she left her job in order to work with defendant, plaintiff "headed the Illustration Department at the Delaware College of Art and Design" ("DCAD"). (Id. at ¶ 8) Defendant, a California resident, is the owner of Davy Liu Studio Gallery ("the Gallery") in Laguna Beach, California. (Id. at 112) Plaintiff and defendant first met in June 2002, "at a gathering of illustrators in New York City." (D.I. 14 at ¶ 3) Plaintiff "arranged for [defendant] to speak at the [DCAD] as part of the Visiting Artists Lecture Series, an event that was open to the public as well as the college." (Id.) According to plaintiff,

[defendant] came to Delaware for this engagement on November 13, 2002 .... [and] gave the lecture ... on November 14, 2002. He stayed at [plaintiffs] house in Delaware from November 13 to 16 and November 18 to 19, 2002[,] [and] received a $500 honorarium as well as airfare for the trip to the [DCAD].

(Id.)

In April 2004,³ "[defendant] contacted [plaintiff] to request [her] assistance with various matters relating to the operation of [the Gallery]." (Id. at ¶ 4) In May 2004, plaintiff and defendant began to discuss the possibility of forming a partnership, "and, in June 2004, [defendant] suggested [that plaintiff] visit the Gallery in July 2004 to explore that opportunity." (D.I. 1 at ¶ 9) Before that visit had even taken place, defendant "requested [plaintiff's] assistance in editing a promotional piece for the Gallery.⁴ (Id. at ¶ 10) Thereafter,

[plaintiff] traveled to California on July 15, returning to Delaware on July 30. While in California, [plaintiff] spent eighty-seven ... hours working in the Gallery, providing assistance in various areas including organizing the studio, organizing the administration areas of the studio, teaching [defendant] about business aspects of running the Gallery, and editing, proofreading, designing and writing promotional materials for the Gallery and for the [upcoming] August 21 show. [Plaintiff] paid her own airfare and car rental costs, and received no payment for the many hours she worked at the Gallery.

(Id. at ¶ 11) During plaintiff's visit to California, "[defendant] offered [her] a partnership in the Gallery, and suggested that she be given the title of director of the Gallery, with the expectation she would take over complete control of the Gallery business within a year." (Id. at ¶ 12) "On July 22, 2004, [plaintiff] accepted [defendant's] offer of partnership" with the understanding that,

as compensation for her efforts, ... [she] would receive 10% of the price of the paintings sold at the Gallery, beginning with the August 21, 2004 show. In addition, [plaintiff] would be given studio space in the Gallery studio in order to allow her to continue her own artistic endeavors. [Defendant] also agreed to provide [plaintiff] with $1,000 as an advance to cover her moving expenses from Delaware to California.

(Id. at ¶¶ 13, 14) "[B]ased on [defendant's] promises and representations, [plaintiff] resigned her position with the [DCAD] in order to prepare for her move to California in the fall of 2004[⁵] to become Director of the Gallery." (Id. at ¶ 14)

As the August 21 show approached, defendant asked plaintiff, who was still living in Delaware at the time,

to provide assistance in creating and editing promotional materials for the Gallery, and in particular for the August Gallery show. For example, at [defendant's] behest, working from Delaware, [plaintiff] created a press release for the August 2004 `Pros Unveiled' Gallery show. A copy of the press release, bearing [plaintiffs] copyright notice, was forwarded to [defendant] upon its completion.

(Id. at ¶ 16) Plaintiff returned to California on August 18, 2004 in order to prepare for the August 21 show; she subsequently "exerted considerable efforts in preparation for the event, spending more than 40 hours on various tasks." (Id. at ¶ 17) "In the days leading up to the August 21 Gallery show, and during the event itself, [plaintiff] was introduced by [defendant] as the new Gallery director to everyone coming to the Gallery, including the participating artists." (Id. at ¶ 18) During the show, plaintiff took seventy-one photographs of the Gallery and its attendees ("the photographs"). (Id. at ¶ 20) After the August 21 Gallery show, plaintiff traveled back to Delaware and began making preparations for her impending move to California.

While still in Delaware, [plaintiff] devoted significant creative energies and time to designing and editing promotional materials for the Gallery, including creating new text for such materials. Among the works authored by [plaintiff] while in Delaware were: copy for a full color brochure promoting the Gallery; biographies of the artists in the Gallery; and a mission statement for the Gallery ("[the][s]tatement").

(Id. at ¶ 19) Defendant subsequently uploaded the photographs and the statement onto the Gallery's website ("the website").⁶ (Id. at 20)

Plaintiff moved to California on October 3, 2004 and began working at the Gallery two days later. (Id. at ¶ 21) She spent the next three weeks working at the Gallery full-time, "with additional hours each week spent in unpacking, setting up and working at her personal illustration business." (Id.) On October 25, 2004, as a result of "irreconcilable differences," plaintiff ended her working relationship with defendant and "began to move her studio equipment out of the Gallery studio space." (Id. at ¶ 22) On November 3, "[plaintiff] requested full payment of the compensation due her, including the promised funds to cover her moving expenses"; plaintiff alleges that, "[i]n response to her request, [defendant] informed [plaintiff] that he would not be paying her `one cent.'" (Id.) Plaintiff moved back to Delaware on December 15, 2004 and has remained a Delaware resident since that time. (Id. at ¶ 23) According to plaintiff, she "was never paid for her work at the Gallery, and never received the commission of ten percent ... of sales, or the promised $1,000 advance." (Id. at ¶ 26)

"In December 2005, [p]laintiff learned that [d]efendant ... was using and displaying at least eleven ... of the [p]hotographs, along with the [s]tatement, on the [w]ebsite." (Id. at ¶ 30) "[T]here [exists] no agreement ... between [plaintiff] and [defendant] governing [defendant's] use of the [photographs and the statement] on the [w]ebsite or in the Gallery"; however, "[o]n January 31, 2005, [p]laintiffs attorney sent a letter to [defendant] advising him of [p]laintiffs copyrights in the [p]hotographs and [s]tatement, and [defendant's] infringement of the same." (Id. at ¶¶ 29, 31) On or about February 8, 2005, plaintiff learned that the photographs had been removed; despite this, "the [s]tatement remained on the [w]ebsite and continued to be prominently displayed therein." Plaintiff likewise alleges that defendant "continued to reproduce and distribute written materials, including the Gallery's color brochure, containing an exact copy of the [s]tatement." (Id. at ¶¶ 32, 33) The complaint also states that "[plaintiff] recently became aware that [d]efendant had again posted at least seventeen ... of the [p]hotographs on the [w]ebsite, and as of [July 20, 2006], twenty-one [p]hotographs [were] on display on the [w]ebsite." (Id. at ¶ 34)

According to plaintiff, defendant's actions have "infringe[d][her] copyrights in and relating to the [photographs and the statement] by reproducing, distributing and displaying," without permission, plaintiffs copyrighted works. (Id. at ¶¶ 36, 37) In addition, plaintiff claims that defendant's actions constituted a breach of contract under the common law. (Id. at ¶¶ 47-50) She, therefore, filed the instant lawsuit in the District of Delaware. Plaintiff avers that, although defendant is a resident of California,

[defendant] sought out [plaintiffs] services in Delaware, and made representations to [her] while she was still a resident of Delaware that caused her to resign her position ... with the [DCAD] to partner with [defendant], and to perform services on behalf of...