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Krist v. Pearson Education, Inc.

United States District Court, E.D. Pennsylvania

April 12, 2017

BOB KRIST, Plaintiff,


          Gerald Austin McHugh United States District Judge

         This is a copyright infringement action in which the principal issue before me is whether the defendant may invoke, as the basis for a motion to transfer, a forum selection clause in contracts to which the plaintiff is not a party. I conclude that the answer is no-particularly since the plaintiff has not asserted any claims for breach of contract, but has limited himself to the protections of the federal Copyright Act.

         Bob Krist, a Bucks County professional photographer, has sued the educational-textbook publisher Pearson Education, Inc., for one count of copyright infringement embracing 359 separate claims. Krist's theory for each claim is that although Pearson had licenses for Krist's photographs, it used them in ways those licenses did not authorize. Only seven claims, however, involve licenses Krist issued directly to Pearson. The remaining 352 involve licenses that Krist first issued to the stock photography agency Corbis Corporation, under agreements allowing Corbis to sublicense Krist's photographs to third parties. Pearson, which has long had agreements with Corbis allowing it to use Corbis photographs, was one such third party. Pearson both accessed and used Krist's photographs under the terms of the Pearson-Corbis contracts- until, as Krist claims here, it began using them outside the terms of those contracts. Pearson now moves under 28 U.S.C. § 1404(a) to transfer venue to the Southern District of New York, relying on the following forum selection clause in the Pearson-Corbis agreements:

Choice of Law / Jurisdiction / Attorneys' Fees: Any dispute regarding this Agreement shall be governed by the laws of the State of New York and Titles 15, 17, and 35 of the U.S.C., as amended, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in New York, USA, regardless of conflicts of laws.

It is undisputed that Krist was not a party to those agreements, but Pearson argues he should nonetheless be bound by their terms.[1]

         I start with two default premises. First, “a plaintiff's choice of forum should rarely be disturbed.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981); accord Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Second, where the plaintiff has chosen his home forum, that choice is “entitled to greater deference.” Piper, 454 U.S. at 255 (citing Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)). To be sure, the “calculus changes . . . when the parties' contract contains a valid forum-selection clause.” Atl. Marine Constr. Co. v. U.S. Dist. Court, 134 S.Ct. 568, 581 (2013). If such a clause exists, barring “extraordinary circumstances, ” the court should ordinarily enforce the clause and transfer the case. Id. But before placing Atlantic Marine's heavy thumb on the scale, there must exist a contract between the parties-or, in lieu of that, some reason why a nonparty to the contract should nevertheless be bound by it.

         Pearson advances three reasons why Krist should be bound by the Pearson-Corbis contracts. First, Krist has brought suit based on the licenses granted in those contracts. Second, Krist is both closely related to and a beneficiary of the contracts. And finally, Krist authorized Corbis to act as his agent in entering into the contracts. Pearson claims these factors, either individually or in combination, place the contracts at the heart of this case-and since those contracts provide that any dispute “regarding” them must be litigated in New York, I must transfer the case there.

         Though Pearson raises colorable arguments, I am not persuaded to enforce the forum selection clause against Krist.[2] Significantly, Krist has not asserted any rights under the contracts, making some of the cases on which Pearson relies readily distinguishable. See Jon Feingersh Photography, Inc. v. Houghton Mifflin Harcourt Publ'g Co., No. 13-2378, 2014 WL 716723 (E.D. Pa. Feb. 25, 2014) (Slomsky, J.); Lefkowitz v. John Wiley & Sons, Inc., No. 13-1662, 2013 WL 4079923 (E.D. Pa. Aug. 13, 2013) (Baylson, J.); Lefkowitz v. McGraw-Hill Cos., No. 13-1661, 2013 WL 3061549 (E.D. Pa. June 19, 2013) (Schiller, J.). In those cases, where the Corbis clause was enforced against nonsignatory plaintiffs, my colleagues put special emphasis on the fact that the plaintiffs sued as beneficiaries of the contracts; there is an inherent unfairness in allowing a nonparty to a contract to sue under it without being held to its terms.

         This case, however, features only copyright claims. And though the Third Circuit has cautioned that “pleading alternate non-contractual theories is not alone enough to avoid a forum selection clause if the claims asserted arise out of the contractual relation and implicate the contract's terms, ” Crescent Int'l, Inc. v. Avatar Cmtys., Inc., 857 F.2d 943, 944 (3d Cir. 1988) (per curiam) (emphasis added), that rule has no applicability where there is no contract between the parties.[3]

         I take Pearson's point that this case will involve consideration of the Corbis-Pearson contracts, because Krist claims they did not authorize Pearson's uses of his photographs. So in one sense, it can be said that this suit, though brought in copyright, does “regard[]” the contracts.[4] But that matter is distinct from whether Krist is bound by a forum selection clause in contracts he did not sign. In this respect, it is notable that though the choice of law clause broadly provides that “[a]ny dispute regarding this Agreement” shall be governed by New York (and relevant federal) law, the forum selection clause begins with: “the parties agree.” It is indisputable that Krist was not a party and did not so agree.

         Pearson also claims that Krist is closely related to, and a beneficiary of, the contracts, making him bound. Both concepts have been applied as exceptions to the general rule that a contract only binds its parties. See Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 202-03 (3d Cir. 1983), abrogated on other grounds by Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989); Freeford Ltd. v. Pendleton, 857 N.Y.S.2d 62, 67 (App. Div. 2008). But the cases on which Pearson primarily relies, Synthes, Inc. v. Emerge Med., Inc., 887 F.Supp.2d 598 (E.D. Pa. 2012) (Buckwalter, J.); Greenfish II, L.P., ex rel. Purplefish, LLC v. Int'l Portfolio, No. 11-7628, 2012 WL 3024759 (E.D. Pa. July 24, 2012) (Goldberg, J.); First Fin. Mgmt. Grp., Inc. v. Univ. Painters of Balt., Inc., No. 11-5821, 2012 WL 1150131 (E.D. Pa. Apr. 5, 2012) (Baylson, J.); Affiliated Mortg. Prot., LLC v. Tareen, No. 06-4908, 2007 WL 203947 (D.N.J. Jan. 24, 2007), all share a crucial difference from this one: the nonsignatories there were defendants who allegedly either interfered with (as in Synthes, First Financial, and Affiliated Mortgage), or made misrepresentations to induce entering into (as in Greenfish), contracts with forum selection clauses. Each case centered on some mix of claims for breach of contract, fraud, or tortious interference. With such allegations, those courts found it reasonable to hold nonsignatory defendants to the contracts' forum selection clauses. But this case is different: Krist, the plaintiff, brings only copyright claims, and Pearson alleges no wrongful conduct on his part.

         Finally, Pearson argues the clause is enforceable against Krist because Corbis entered into the contracts with Pearson as Krist's agent. Other courts have found (or at least assumed) that Corbis representation agreements like those here have created principal-agent relationships. See Yamashita v. Scholastic, Inc., No. 16-3839, 2016 WL 6897781, at *2 (D.N.J. Nov. 21, 2016); Sohm v. McGraw-Hill Global Educ. Holdings, LLC, No. 16-1316, slip op. at 5 (C.D. Cal. June 6, 2016) (Dkt. 45-1). But I find that Corbis and Krist did not enter into such a relationship, because the representation agreements between them did not give Krist continued control or direction over Corbis.

         The Restatement (Second) of Agency-which New York courts appear to follow, see, e.g., Sokoloff v. Harriman Estates Dev. Corp., 754 N.E.2d 184, 188-89 (N.Y. 2001)-makes clear that a principal-agent relationship “depends upon . . . the understanding of the parties that the principal is to be in control of the undertaking.” § 1 cmt. (1)b (Am. Law Inst. 1958). Such a relationship therefore is created “only if . . . the fiduciary is subject to the directions of the one on whose account he acts.” Id. Indeed, “[i]t is the element of continuous subjection to the will of the principal which distinguishes the agent from other fiduciaries[.]” Id. So while in certain circumstances an independent contractor-that is, a “person[] who contract[s] to do something for another but who [is] not [a] servant[]”-may be an agent, the threshold question remains whether that contractor cedes “direction over the conduct of the work.” Id. § 2 cmt. b. If he does not, he is not an agent-and so he “has no power to make the one employing him a party to a transaction.” Id.

         On this the Corbis-Krist agreements were clear: Krist did not retain continued control or direction over Corbis.[5] Those agreements provided: “Corbis may accept or reject submitted Content for representation under this Agreement in its sole discretion” (§ 1), and “Corbis may determine at our sole discretion the terms and conditions of any license, marketing, or distribution of your Accepted Content” (§ 8). This level of latitude given to Corbis-and the lack of continued control or direction by Krist that it necessarily implies-undercuts any claim that these agreements created a principal-agent relationship, at least insofar as they gave Corbis the ability to bind Krist to the Pearson-Corbis contracts. This conclusion finds further support in a separate clause (§ 17) in the Corbis-Krist agreements that granted Corbis authority to act as Krist's agent for the limited “purpose of making [certain] settlements and ...

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