Dudnikov v. Chalk & Vermilion Fine Arts, Inc.

514 F.3d 1063 (2008)


Ps sell on eBay. They operate a small and unincorporated Internet-based business from their home in Colorado. Ps sell fabric and handmade crafts such as aprons, blankets, and placemats under the name 'Tabber's Temptations.' Ps' eBay auction pages clearly list the location of their merchandise as Hartsel, Colorado, and link to their personal website which contains more information about their business, including its location in Colorado. P sells two prints, both of which play on famous images by Erte, Symphony in Black and Ebony on White. Erte's images depict an elegant women walking aquiline dogs, Ps' prints portray Betty Boop next to her aptly named canine companion, Pudgy. D, owner of the Erte copyright, decided that Ps’ prints infringed their copyrights. D contacted eBay and got Ps’ auctions suspended. SevenArts, a British corporation, owns the copyright in these Erte works. D, a Delaware corporation with its principal place of business in Connecticut, is SevenArts' American agent. D is also a member of eBay's 'Verified Rights Owner' ('VeRO') program. EBay will automatically terminate an ongoing auction when it receives a notice of claimed infringement ('NOCI') from a VeRO member stating, under penalty of perjury, that it has a good-faith belief that an item up for auction infringes its copyright. Ps offered to remove the fabric from sale if the NOCI were withdrawn. D then threatened Ps with suit in federal court. Ps sought a declaratory judgment that their prints do not infringe D's copyrights. D motioned to dismiss, arguing that the court in Colorado lacked personal jurisdiction over them. The district court agreed and dismissed Ps' complaint. Ps appealed.