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Jewell v. Music Lifeboat

United States District Court, E.D. New York

May 17, 2017



          NINA GERSHON, United States District Judge

         Plaintiff Patrick Ochion Jewell alleges copyright infringement pursuant to the Copyright Act, 17 U.S.C. §§ 101-810, as well as New York common law claims of breach of contract and misappropriation of ideas. Plaintiffs claims arise out of an alleged agreement he entered into with defendants Bernstein, Carter, and Loring in which he agreed to provide a music education curriculum for a music educational mobile application ("app") in exchange for a 10% ownership stake in the company to be created and 10% of the company's profits. Music Lifeboat is the website that operates the app, and plaintiff alleges that Music Lifeboat is a "project" of the Pasadena Arts Council. Plaintiff seeks declaratory and injunctive relief, actual damages, statutory damages, costs, and reasonable attorney's fees. All defendants move to dismiss the Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and, pursuant to Rule 12(b)(2), for lack of personal jurisdiction over them. They also move to dismiss under Rule 12(b)(3) and 28 U.S.C. § 1406(a) on the basis that venue is improper in the Eastern District of New York; in the alternative, they seek transfer of any surviving claims to the Central District of California pursuant to 28 U.S.C. §§ 1404 and 1406.

         For the reasons set forth below, this court does not have personal jurisdiction over defendants Music Lifeboat, Inc. and the Pasadena Arts Counsel, and therefore venue in this district is improper as to those defendants. I therefore transfer the claims against Music Lifeboat and Pasadena Arts Council to the Central District of California pursuant to 28 U.S.C. § 1406(a). Rather than continue the case piecemeal, I also transfer the remaining claims against defendants Bernstein, Carter, and Loring to the Central District of California pursuant to 28 U.S.C. § 1404(a). I do not reach defendants' arguments for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).


         The allegations of the Amended Complaint, taken as true for purposes of this decision, are as follows. In January of 2014, plaintiff, who is a musician and composer, conceived of an app to teach children to play band instruments. Plaintiff discussed this idea with defendants Brandon Bernstein, Terry Carter, and Scott Loring. It was plaintiffs understanding that a for-profit company would be formed based on the app. In exchange for plaintiff providing curriculum for the app, he would receive 10% ownership of the company and 10% of the company's profits. This agreement was outlined in a February 16, 2014 two-sentence email from defendant Bernstein.

         Though defendants promised a full written agreement, they demanded that plaintiff create and provide them with a curriculum for the lessons on the app, despite not having provided plaintiff with this agreement. Plaintiff refused to provide any material until he received the agreement, which he eventually received on March 20, 2014. However, the agreement was deficient in numerous ways, including its lack of clarity as to who owned the intellectual property to plaintiffs creations. After raising his concerns with defendants, they promised him a revised agreement, but pressured plaintiff into providing them content prior to receiving the new agreement because they had already hired professional musicians and booked studio time to record the instructional videos for which they needed plaintiffs lesson plans.

         On March 30, 2014, plaintiff provided the content to defendants before receiving a revised agreement, which defendants then used to create instructional videos. From January of 2014 to September of 2014, plaintiff continued to work with defendants. Plaintiff provided additional ideas for the app, supervised software and game designs, was filmed as an instructor for certain lessons, and composed both an original song and theme music for the app's trailer.

         Though the parties originally intended to create a for-profit company based upon the app, in September of 2014, defendants decided to create a not-for-profit company and to release the lessons to the public for free. Nonetheless, plaintiff maintains that defendants promised that he would retain a 10% ownership stake in the company and that he would be compensated for his contributions. On September 20, 2014, plaintiff submitted his curriculum to the United States Copyright office for registration, which he received on October 20, 2014. In December of 2014, plaintiff received a letter from defendants stating that they were moving forward with incorporating the not-for-profit company and that they were willing to pay plaintiff $5, 000 for his work, of which defendants would become the exclusive owners. Plaintiff refused to sign the agreement.

         On or about October 21, 2014, Bernstein, Carter, and Loring co-founded Music Lifeboat, Inc. Music Lifeboat is a project of the non-profit Pasadena Arts Council, which provides fiscal management and oversight of Music Lifeboat's operations, and collects all revenue generated by Music Lifeboat. Music Lifeboat operates a website,, as well as a mobile application called "Bandblast" and separate applications called "Music Lifeboat Presents: Play Like a Prodigy" for twelve different instruments (the "Play Like a Prodigy series"). Both the website and the applications allow users to stream video lessons incorporating plaintiffs copyrighted lesson plans. A trailer for the Bandblast app posted on another website incorporates another of plaintiffs copyrighted works, "Theme for Strings." The apps became publicly accessible in February of 2016, and offer over 100 videos incorporating plaintiffs copyrighted curricula for purchase. Defendants thus are selling plaintiffs copyrighted work, and have never at any point compensated him.

         As it relates to jurisdiction, plaintiff alleges that all defendants reside or have their principal places of business in California, and does not argue that any defendant would be subject to general jurisdiction in New York. Plaintiff asserts, however, that defendants are subject to specific jurisdiction in New York regarding this matter under New York's long-arm statute based on their actions, which he describes in the Amended Complaint. Those actions include:

1. Seeking out plaintiff, a NY State resident, and contracting with him to provide the curriculum for the video lessons;
2. Communicating with plaintiff via email, phone, and social media for over nine months concerning plaintiffs creation of copyrighted works for use in the planned business venture;
3. Obtaining and using plaintiffs copyrighted works, which they knew plaintiff had created while in NY State;
4. Requesting that plaintiff hire game designers and music composers in New York State to work on the project, which plaintiff did;
5. Paying those New York residents, including game designers, consultants, and composers, to provide content for the Music Lifeboat website and/or the mobile apps, and knowingly using content that those New York residents wrote and developed in NY State;
6. Engaging in email, phone, and social media communications with those New York-based game designers, consultants, and composers;
7. Deriving substantial revenue from infringing on plaintiffs copyright within the State of New York by publicly distributing plaintiffs copyrighted video lessons through their website and related mobile apps, with knowledge that such content would be downloaded or viewed in New York;
8. As to defendant Bernstein only, coming to New York on at least two occasions to meet with plaintiff and discuss plaintiffs work and meet with other individuals who ...

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