The opinion of the court was delivered by: McMahon, J.
DECISION AND ORDER DENYING MOTION TO DISMISS
The complaint in this action alleges that plaintiff Vasquez composed the words and music to a musical composition entitled Nena Linda in 1992; that Vasquez properly registered his copyright in Nena Linda with the United States Copyright Office and received Certificate of Registration of Copyright PA-1-267-305, which includes, inter alia, Nena Linda. He sues defendant Fernando Torres Negron for copyright infringement on that copyright via a song entitled Noche de Fiesta, which he composed and registered with the copyright office, and for which he received Certificate of Registration No. Pau 2-624-261. Specifically, plaintiff alleges that the rhythm and music of Noche de Fiesta was based on Nena Linda. Indeed, he alleges that Torres Negron was asked by someone named Ruben Canuclas to compose words to the tune and rhythm of a song on a cassette tape, which song plaintiff believes was Nena Linda. Vasquez and Campesino Music, the exclusive world wide administrator of the musical composition and sound recording of Nena Linda, have sued Torres Negron -- a resident of Puerto Rico who has never left that island -- for copyright infringement. He seeks to annul the certificate of copyright registration for Noche de Fiesta, and to recover royalties paid to Torres Negron for that song.
Torres Negron seeks dismissal of the complaint on the grounds that the court lacks personal jurisdiction over him (Fed. R. Civ. P. 12(b)(2)), that venue in this district is improper (Fed. R. Civ. P. 12(b)(3)), and that the complaint fails to state a cause of action (Fed. R. Civ. P. 12(b)(6)).
For the reasons stated below, the motion is denied on all grounds.
1. Motion to Dismiss for Lack of Personal Jurisdiction (Rule 12(b)(2))
Torres Negron avers that he has never been in New York and has no contacts with the state that whatever.
With one exception, plaintiff does not contend otherwise. The one exception, which is the subject of allegations in the pleadings, is this: plaintiff alleges that Torres Negron is doing business in New York through an agent. Torres Negron is a member of ASCAP, which is located in New York City, and uses ASCAP as its agent for the collection of royalties. Plaintiff attaches to his opposition to the motion to dismiss a copy of a 1994 agreement between Torres Negron and ASCAP, which relates specifically to Noche de Fiesta, and which grants ASCAP a non-exclusive right of public performance in Noche de Fiesta. This permits ASCAP to license performances of Noche de Fiesta and to collect royalties on those performances and remit them to Torres Negron.
The question is whether Torres Negron's use of ASCAP, in New York, to license performances of and collect royalties on his song is sufficient to subject him to the in personam jurisdiction of this court.
The governing statute, CPLR 302(a), is New York's long-arm statute. It provides:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or
(2) commits a tortious act within the state, except as to a cause of action for defamation or character arising from the act; or
(3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; . .
This statute must be read against the Fourteenth Amendment's Due Process Clause, which permits a state to exercise personal jurisdiction over a non-resident defendant if that defendant has "certain minimum contacts [with the state]. . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Calder v. Jones, 465 U.S. 783 (1984) (internal citations and quotation marks omitted). The plaintiff must also show that the defendant purposefully availed himself of the privilege of doing business in the forum state, so that the defendant could foresee being haled into court in that state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Because CPLR 302 does not reach as far as the constitution permits, if a ...