Copyright and The Story of the Long-Armed Buddhist Penguin

If a Penguin gains enlightenment, is he an all-present universal Buddha?

In the first reign of the Lord Obama the Hopeful, Grand Master Dan-Nay set out on the path to bring the power and light of the Master Penguin to the far reaches of the Lord's Empire and even beyond to the barbarian and unenlightened hordes populating the universe.

I wrote on Penguin Group v. American Buddha, 09-1739-cv (June 15, 2010), a case involving New York's long-arm statute and addressing the issue of whether a copyright holder located in New York can sue in Manhattan for an infringement that takes place anywhere in the universe here.

Andy Berger, sympathetic to Penguin, digs in further and has posted Penguin's briefs for easy reading here.

I would appreciate anyone bringing thoughts, articles or posts on this topic to my attention.  This is an important and difficult issue involving due process, the Constitution, the essence of a copyright, and the extent to which New York courts will subject the world to its jurisdiction.  In a rare area of federal law that completely "preempts" state law, our Second Circuit Court of Appeals has made clear that it will defer to New York State's Court of Appeals.  I am curious as to what the really smart law professors will have to say and whether American Buddha will have any amici.

 Purchase Copyright Litigation Handbook from West here  

SDNY: Copyright Transfer Termination Notices Subject California Copyright Heirs To Jurisdiction In New York

Kirby & Roussos Courtesy Wikipedia

In Marvel Worldwide, Inc. v. Kirby, 2010 WL 1655253 (April 14, 2010), SDNY Judge Coleen McMahon found that two defendants, heirs of comic artist Jack Kirby, submitted themselves to transactional jurisdiction under New York's long-arm statute by sending copyright transfer termination notices pursuant to 17 USC 304(c).   The decision discusses acts by non-domiciliaries that may trigger jurisdiction over foreign defendants for the purposes of being subjected to claims relating to the transaction in New York and uses the "minimum contacts" of International Shoe and Worldwide Volkswagen.

The Kirby heirs sent a notice of termination and Marvel responded with a declaratory judgment action.  The heirs moved to dismiss and simultaneously filed an action in California.   The court distinguished transfer termination notices from cease and desist letters which, if properly drafted and addressed (see Copyright Litigation Handbook Chapter 6) ordinarily (there are exceptions and murky case law), absent other contacts with the forum, should not, standing alone, subject the sender to personal jurisdiction in a foreign jurisdiction.

The Marvel v. Kirby decision does not discuss the copyright venue statute, 28 U.S.C. 1400 which provides:

§ 1400. Patents and copyrights, mask works, and designs

(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.

(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.