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Marvel Characters, Inc. v. Kirby

United States Court of Appeals for the Second Circuit · 2013 · Civil Procedure

Civil ProcedurePersonal JurisdictionRequired JoinderSummary JudgmentCopyrightpersonal jurisdictionCPLR 302(a)(1)purposeful availment

Facts

The dispute concerned rights in 262 works Jack Kirby created for Marvel between 1958 and 1963. Kirby was a freelancer who worked from home, was paid a per-page flat rate only for accepted pages, received no salary or benefits, and Marvel could reject or require redrawing of pages. In 2009, the Kirby children served Marvel in New York with termination notices under 17 U.S.C. § 304(c). Lisa and Neal lived in California and challenged personal jurisdiction in New York, while Barbara and Susan lived in New York.

Issue

Whether New York courts had personal jurisdiction over Lisa and Neal Kirby based solely on their sending termination notices into New York; whether Lisa and Neal were indispensable parties under Rule 19(b); and whether the works at issue were works made for hire under § 304(c) under the Second Circuit's instance and expense test.

Rule

Under New York CPLR 302(a)(1), an out-of-state communication required to exercise rights under a federal statute does not by itself constitute purposeful availment of the benefits and protections of New York law when the only New York connection is the recipient's headquarters. Under Rule 19(b), a nonjoined party is not indispensable when prejudice is minimal, aligned parties can adequately represent the absentee's interests, judgment will still adequately settle the dispute, and dismissal would leave the plaintiff without an adequate forum. For works governed by the 1909 Act, a work is made for hire if it was created at the hiring party's instance and expense; if that showing is made, the work is presumed to be for hire unless there is evidence of a contemporaneous agreement to the contrary.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Rosa Medina lives in Arizona. To exercise a federal statutory recapture right, she mails a notice required by federal law to Silver Lantern Publishing, whose headquarters are in Manhattan, and has no other contacts with New York.

If Silver Lantern files a declaratory judgment action against Rosa in federal court in New York, is personal jurisdiction over Rosa proper under CPLR 302(a)(1)?

Explanation. Under the majority opinion, an out-of-state communication required to exercise rights under federal law does not by itself constitute transacting business in New York when the only New York connection is the recipient’s headquarters. The key defect is lack of purposeful availment of New York’s benefits and protections, not merely lack of physical presence. The notice asserts federal rights, not New York rights.