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LEUTWYLER v. OFFICE OF QUEEN RANIA AL-ABDULLAH

August 8, 2001

HENRY LEUTWYLER AND TALK TO THE HAND, INC., PLAINTIFFS,
V.
OFFICE OF HER MAJESTY QUEEN RANIA AL-ABDULLAH, RANIA ATALLA, SUHAD FITIANY, AND ALIA A TOUKAN, DEFENDANTS.



The opinion of the court was delivered by: Lynch, District Judge.

    OPINION AND ORDER

This action for copyright infringement, breach of contract and defamation, among other claims, is brought by Plaintiff Henry Leutwyler, A Swiss national who resides in New York City, and his corporation, Talk To The Hand, Inc. (collectively, "Leutwyler"), against Queen Rania Al-Abdullah of the Hashemite Kingdom of Jordan, the Office of the Her Majesty the Queen of Jordan (the "Office of the Queen") (a Jordanian governmental body) and three officials of the Office of the Queen (the "Individual Defendants") (collectively, "Defendants"). On March 28, 2001, the Government of the United States filed a Suggestion of Immunity, requesting the Court to defer to the Executive Branch's determination that Queen Rania is a head of state who should be immune from suit in courts of the United States. Such an Executive Branch decision is entitled to conclusive deference from the courts. See, e.g., Lafontant v. Aristide, 844 F. Supp. 128, 131-32 (E.D.N.Y. 1994) Accordingly, by order dated June 13, 2001, the Court dismissed all of the claims asserted against Queen Rania.

The remaining Defendants have moved to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), contending that under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., they are covered by the longstanding presumption that foreign sovereigns and their agents are immune from suit in federal court, and that no exception to the Act covers the claims alleged in this action. They have also moved to dismiss under the doctrines of forum non conveniens and comity.

For the reasons that follow, Defendants' motion to dismiss for lack of subject matter jurisdiction is granted in part and denied in part with regard to those claims asserted against the Individual Defendants. All of the claims asserted against the Office of the Queen are dismissed, because that entity does not have a juridical existence. Leave is granted, however, for Leutwyler to file and serve an amended complaint within 30 days that asserts his copyright infringement and/or breach of contract claims against an appropriate Jordanian governmental entity. Additionally, Defendants' forum non conveniens and comity motions are denied.

BACKGROUND

On a motion to dismiss for lack of subject matter jurisdiction, the Court is required to accept the facts of the plaintiff's complaint as true, unless they have been disputed by the defendants through extrinsic evidentiary submissions, which the Court must then consider to resolve the factual dispute. Filetech S A. v. France Telecom S A, 157 F.3d 922, 932 (2d Cir. 1998); see also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027-28 (D.C.Cir. 1997) (holding that on a motion to dismiss based on a sovereign immunity defense, "the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case before trial.") (internal quotations omitted). Unless otherwise noted, the facts pertinent to the Court's consideration of Defendants' jurisdictional motions are not controverted by the parties.

Leutwyler Photographs the Royal Family

Henry Leutwyler is a noted New York-based photographer who, among his artistic endeavors, has often been hired as a portraitist by world leaders, entertainers and various other luminaries. (First Am. Compl. §§ 4, 12.) He and his wife, Ruba Abu-Nimah, are co-owners of Talk To The Hand, Inc., a corporation based in New York City, "through which Leutwyler conducts his photography business." (Id. ¶ 5; Leutwyler Decl. ¶ 2.). Ms. Abu-Nimah is the daughter of Hasan Abu-Nimah, who formerly served as Jordan's Ambassador to the United Nations. (Defs.' Mem. Supp. at 2.)

In July 1998, a representative of Princess Rania Al Abdullah, the wife of Crown Prince Abdullah bin Al-Hussein, at that time the heir apparent to Jordan's monarchy, contacted Leutwyler to arrange for him to take black-and-white portraits of the princess in Amman, Jordan. (First Am. Compl. ¶ 14 & Ex. A at 1.) Leutwyler sent a "Production Estimate" to Princess Rania, in which he stated that he would retain all copyright and usage rights in the photographs — with the exception of a limited license to Princess Rania for "public relations and press" purposes. (Id. ¶ 15 & Ex. A at 1-2.) The parties canceled the photo shoot, however, when King Hussein bin Talal. Princess Rania's father-in-law, was stricken with cancer. (First Am. Compl. ¶ 16 & Atalla Aff Ex A at 43) King Hussein died on February 7, 1999, and Prince Abdullah and his wife became King and Queen of Jordan. (Atalla Aff. Ex. A at 43-44.)

Jordan is a patriarchal monarchy, governed by a king who serves as head of state, chief executive and commander-in-chief. The King exercises his executive authority in part through a governmental body called the Royal Court, which acts as a political and administrative conduit through which the King commands the government and the armed forces.*fn1 The Royal Court, which might be analogized to a hybrid of the United States' Office of the President and various administrative agencies within the Executive Branch, contains various sub-offices and departments that conduct a variety of executive and administrative functions. (Al Rifa'i Aff. ¶¶ 3, 5-6.) One such department is the Office of the Queen, which assists the Queen with her various public functions.

According to Samir Al Rifa'i, the Secretary General of the Royal Court, the Office of the Queen "is not responsible" for any of Queen Rania's "private or personal functions." (Id. ¶ 11.) Indeed, Al Rifa'i avers that two other sub-offices within the Royal Court — His Majesty's Chief Chamberlain and His Majesty's Private Chamberlain — are "responsible for the private affairs of the Royal Family." (Id. ¶ 9.) The Office of the Queen has about seventeen staff members, all of whom are employed by the Royal Court. (Id. ¶ 13.)

Leutwyler accepted Queen Rania's offer, and, by letter to Fitiany dated August 2, 1999, agreed to perform his services gratis*fn2 — with the exception of his travel, lodging, film and developing costs. (First Am. Compl. ¶ 17 & Ex. E; Leutwyler Decl. ¶ 6 & Ex. B.) Later that month, Leutwyler, accompanied by a hair stylist and makeup artist.*fn3 traveled to Amman, where he took approximately 2,500 photos of the Royal Family, including both formal portraits and casual shots. (First Am. Compl. ¶ 18; Leutwyler Decl. ¶ 10.)

Following the photo shoot, Leutwyler returned to his New York City studio, where he developed temporary "work print[s]" of the various photos taken in Amman. On October 1, 1999, he sent approximately 140 of the prints to defendant Alia Toukan, Queen Rania's Press Secretary (First Am Compl. ¶ 19, Leutwyler Decl. ¶ 12.) Toukan, also an employee of the Royal Court, is responsible as part of her official duties for "overseeing all press-related matters for Her Majesty and the office of Her Majesty" (Al Rifa'i Aff. ¶ 15), including reviewing "newspaper and magazine articles that discuss Her Majesty" to ensure that "Her Majesty is portrayed in a favorable light." (Atalla Aff. ¶ 7.) The prints were marked with the following notices. "Copyright Henry Leutwyler, New York City 1999" and "Work Prints for Review Purposes Only." (First Am. Compl. ¶ 20.) In a letter accompanying the prints, Leutwyler informed Toukan that he would grant the Royal Family a limited license for their "personal use and all press rights for all print media throughout the Middle East." Otherwise, the letter further stated, Leutwyler would retain usage rights. (First Am. Compl. ¶ 19; Leutwyler Decl. ¶ 13 & Ex. C.)

By letter dated November 16, 1999, Leutwyler wrote to Toukan to inquire about King Abdullah and Queen Rania's opinions of the interim photos and whether they were interested in ordering any of the final versions. Neither Toukan nor any other employee of the Royal Court responded to Leutwyler's letter. (First Am. Compl. ¶¶ 21-22; Leutwyler Decl. ¶ 14 & Ex. D.) Publication of Photos in the Jordan Diary

In December 1999, the International Press Office ("IPO") of Jordan, which at that time was a sub-department within the Royal Court (Atalla Aff. ¶ 10), published The 2000 Jordan Diary (the "Jordan Diary," a complete copy of which is annexed as Exhibit A to the Atalla Affidavit). The Jordan Diary, which was marketed and distributed in various countries, including the United States,*fn4 contains information about, among other things, Jordan's history, political structure and geography. (Atalla Aff. Ex. A. & First Am. Compl. Ex. H.) According to Atalla, the diary serves as "a public relations tool that is typically given away in order to promote a better understanding of Jordan and to encourage tourism" there. (Atalla Aff. ¶ 13)

Two of the photos that Leutwyler took in August 1999 were published in the Jordan Diary.*fn5 The IPO acknowledged Leutwyler's copyright interest in the photos by printing "© Henry Leutwyler" in small type just above the photos' lower-left corners. Leutwyler alleges, however, that the photos, which have been registered with the Library of Congress (Leutwyler Decl. ¶ 18 & Ex. H), were "reproduced, distributed, and publicly displayed" by "Defendants" without his "authorization or prior knowledge." (First Am. Compl. ¶ 39.)

At oral argument on April 6, 2001, counsel for Leutwyler stated that her client is proceeding on the theory that one or more of the Individual Defendants contributorily infringed Leutwyler's copyrights by furnishing the photos to the IPO. (Tr. 25.) However, Leutwyler does not specifically identify in his First Amended Complaint which of the Defendants engaged in such conduct. In her affidavit, Atalla avers that "[n]either The Office [of the Queen] nor any its employees has a role in the publication of The 2000 Jordan Diary or any responsibilities with the IPO," (Atalla Aff. ¶ 13), but she does not specifically deny that any of the Individual Defendants provided photos to the IPO.

Publication of Photos in Harper's Bazaar

In early December 1999, Harper's Bazaar ("Harper's"), a well-known fashion magazine, notified Leutwyler that it intended to publish a cover story about Queen Rania, and asked him if he would be willing to furnish some of the August 1999 photos to accompany the article. Leutwyler supplied the magazine with four of the photos, with the proviso that Harper's endeavor to obtain the Queen's permission to publish her image. (First Am. Compl. ¶¶ 26-27.)

On March 5, 2000, defendant Rania Atalla, the Chief of Staff of the Office of the Queen and an employee of the Royal Court (Al Rifa'i Aff. ¶ 15), sent an e-mail to Leutwyler, in which she requested that he decline to provide any photos to Harper's. (First Am. Compl. ¶ 28; Leutwyler Decl. ¶ 16 & Ex. F.) As Chief of Staff, Ms. Atalla's official responsibilities include "supervision of all aspects of Her Majesty's public functions" (Al Rifa'i Aff. ¶ 14), and ensuring "that Her Majesty's public image is accurately portrayed and, if necessary, protected." (Atalla Aff. ¶ 6.) In the e-mail, Atalla also noted that it was the Royal Court's "understanding . . . that the pictures you took of Her Majesty and Her family are personal pictures and are Her property. As such, any decision to use and publish any of them rests with her Majesty." (Leutwyler Decl. Ex. F.) By letter dated March 22, 2000, Atalla notified Leutwyler that the Royal Court would take the position that the Royal Family never entered into any written agreement concerning usage rights for the photos, but had an oral understanding with Leutwyler that the photos were taken solely for their personal use. (First Am. Compl. ¶ 29 & Ex. E.)

Leutwyler responded by letter dated March 24, 2000. With regard to Atalla's legal arguments, he stated that "one would assume that you would be aware that copyright and usage rights remain property of the photographer in perpetuity" and that, not having heard from the Royal Court regarding his offer to grant a limited use license, he assumed that the offer was acceptable. He also denied having agreed that the photos were taken solely for the King and Queen's personal use. (Leutwyler Decl. Ex. G at 1-2.) Leutwyler next proceeded to elaborate on his decision to furnish some of the photos, to be published in the March 2000 issue of Harper's:

Please know that I have been withholding all these images for months in spite of numerous requests from the press community worldwide. I have refused any request to make any of the pictures available to any one, including Harper's Bazaar during the time when their request for an interview was not approved. I would like to further assure you that it was never my intention to use Their Majesties pictures for any commercial use or for profit purposes. It was never my intention and it is not my intention now to give any of these images to anyone without prior approval. I produced these images within the framework of admiration, esteem and devotion for Their Majesties.
I allowed Harper's Bazaar to review the images on condition that I receive a letter from them indicating that no image would be used without your consent . . . I was later informed by Harper's Bazaar that, indeed, there was an agreement and that you were cooperating with a feature article. All my actions were done in good faith and I thought I was doing not only the right thing but the desirable as well.

(Leutwyler Decl. Ex. F at 2) (emphasis added.)

Leutwyler further informed Atalla that the magazine was unable to pull the photographs of Queen Rania, because it learned of the Queen's (and Leutwyler's) wishes after the issue had gone to press. (Id.) That same day, Atalla sent an e-mail message to Leutwyler in which she stated, among other things, that even if Leutwyler had a copyright interest in the photos, the King and Queen retained a veto over whether such "personal" photos could be published.*fn6 However, perhaps unbeknownst to Leutwyler at the time he drafted the March 24, 2000, letter, the magazine ultimately decided to publish only one of his photographs — a print that Queen Rania had apparently approved for publication. (First Am. Compl. ¶ 35.)

Subsequently, Leutwyler claims, he learned that Toukan (and perhaps the other Individual Defendants as well) had informed representatives of Harper's that Leutwyler "stole" the usage rights to the August 1999 photographs by furnishing some of them to the magazine. Leutwyler also contends that the Individual Defendants repeated this allegation to third parties, which he claims has damaged his professional reputation and "the market for his photographs." (Id. ¶¶ 32-37)

Publication of Photos in Newsweek

In late May 2000, Newsweek magazine notified Leutwyler that it would soon be publishing a lengthy article about Queen Rania. To accompany the article, Newsweek requested that Leutwyler provide one of the August 1999 photos of the Queen. (First Am. Compl. ¶ 43.) Leutwyler contends that Toukan (and perhaps the other Individual Defendants as well) learned about Newsweek's offer and informed the magazine that Leutwyler "improperly provided his photographs." (Id. ¶ 50.) Although Newsweek ultimately decided to publish the photographs in its United States and Arabic editions and on its website (Id. ¶¶ 47-49), Leutwyler contends that the magazine later removed the pictures from its website in response to the Individual Defendants' comments. (Id. ¶ 53.)

The Jordanian Action

On July 6, 2000, the Keeper of the Privy Purse ("Keeper"), who is vested, under Jordanian law, with authority to sue on behalf of the King (Haddad Aff. ¶ 17), commenced an action against Leutwyler in the Amman Court of First Instance. (First Am. Compl. ¶ 56 & Ex K.) The Statement of Claim alleged, among other things, that Leutwyler violated both Article 25 of Jordan's copyright law*fn7 and certain provisions of its contract law by publishing personal photos of the Royal Family without their consent. (See First Am. Compl. Ex. K.) The Keeper sought disgorgement of all revenue that Leutwyler derived from the photos, and injunctive relief to preclude Leutwyler from committing further violations. (Id. at 11.) Leutwyler did not answer the Statement of Claim or otherwise appear in the action.*fn8 (First Am. Compl. ¶ 56.) In an ex parte order entered on July 9, 2000, the Amman Court preliminarily enjoined Leutwyler "from selling, distributing or publishing whatever photographs he took of His Majesty King Abdullah II and Her Majesty Queen Rania Al Abdullah and the members of their family, except with their consent and approval. . . ." (Obeidat Aff. Ex. 3.)

The Instant Action

On November 22, 2000, Defendants moved to dismiss Leutwyler's complaint in its entirety. In their motion papers, they contend that the Court lacks subject matter jurisdiction over all of the claims asserted in this action, because Defendants' putative conduct does not fall within the enumerated exceptions to sovereign immunity set forth in the FSIA, and alternatively, that the action should be dismissed pursuant to the doctrines of forum non conveniens and comity. Following limited jurisdictional discovery, Leutwyler filed opposition papers, and the Court heard oral argument on the motions on April 6, 2001.

DISCUSSION

I. Dismissal of the Queen and the Office of the Queen

As already noted, the Court dismissed the action as to Queen Rania at the instance of the Executive Branch. At oral argument, counsel for Leutwyler conceded that the Office of the Queen is not a juridical entity capable of being sued in its own name. (Tr. 4-5.) Accordingly, all claims asserted against that defendant in the First Amended Complaint are subject to dismissal on that ground alone.

II. Subject Matter Jurisdiction Under the Foreign Sovereign Immunities Act

In their motion to dismiss, Defendants first contend that the Court lacks subject matter jurisdiction over this action, because none of them is amenable to suit under the FSIA, which is the "sole basis" for exercising subject matter jurisdiction over an action involving such a defendant. See, e.g., Republic of Argentina v. Weltover, ...


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