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https://web.archive.org/web/20110713050011/http://blog.internetcases.com/2009/01/22/no-personal-jurisdiction-over-australian-defendant-in-flickr-right-of-publicity-case/

The court similarly found that any purported agreement with Wong via the Creative Commons license was not sufficient to establish personal jurisdiction. The Creative Commons license did not require Virgin to perform any of its obligations in Texas. Instead, the license permitted the photograph to be used anywhere in the world. Furthermore, Chang failed to show that Virgin performed any of its obligations in Texas. It used the photograph solely in Australia, the one place that, according to Virgin’s evidence, it was authorized to sell its products and services. Finally, because Virgin only used the photograph in Australia, the license that permitted its use was centered in Australia, not Texas.

What is personal jurisdiction and how can it allow someone to not respect the copyright of another individual? Also, does that mean that Chang can sue Virgin in an Australian court?

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  • "What is personal jurisdiction": Probably best if you start by doing some background research, e.g. nolo.com/legal-encyclopedia/…, findlaw.com/litigation/filing-a-lawsuit/…, en.wikipedia.org/wiki/Personal_jurisdiction, and then ask more specific questions about anything that is unclear. Nov 30 '21 at 14:32
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    It's not that this issue "allows someone to not respect a copyright" in general; it's that under this particular set of facts, the State of Texas doesn't see why this dispute has anything do with Texas, or why their courts should get involved. Chang and Wong can certainly try to sue Virgin in Australia; then Australian courts will apply their own jurisdiction rules to decide if they should adjudicate it. Nov 30 '21 at 14:37
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A court must have both personal jurisdiction and subject-matter jurisdiction

Personal jurisdiction is jurisdiction over the parties to the case, for example, a New York court does not have personal jurisdiction over a murder committed in California. Subject-matter jurisdiction is jurisdiction over the law, for example, a Small Claims court can only hear cases where the amount in dispute is below the small claims threshold.

In the case you cite, the court held that it did not have personal jurisdiction because the alleged tort took place in Australia, not Texas. Or, more precisely, the connections to Texas were too insubstantial to enliven it’s jurisdiction.

Importantly, this was not a breach of copyright case. It is undisputed that Virgin had a valid licence (the CC-BY 2.0 that the photographer had granted to Flickr) and complied with it. Chang was pursuing “a number of tort claims including misappropriation of Chang’s right of publicity”, not copyright infringement. Further, unless the photo was a selfie, Chang would not be the copyright owner; copyright in a photograph belongs to the photographer, not the subjects.

Chang can sue in any or all of the states or territories in Australia where the ad was broadcast and the relevant court would probably decide that it did have personal jurisdiction. However, the case would fail because breach of the “right of publicity” is not a tort recognised under Australian law. That is, if Virgin had done what they did in Texas it might have been illegal but because they did it in Australia, it wasn’t.

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  • Worth noting that there are a couple of distinct questions present. The first is which courts could have personal jurisdiction over the defendant - not Texas, probably Australia, maybe some other courts too depending on the detailed facts. There is an analytically distinct question of "choice of law". It is conceivable that a court in Australia, for example, might apply non-Australian law to the case, for example, due to a choice of law clause in the licensing agreement, or because another jurisdiction has the "most significant connection" to the disputed issue.
    – ohwilleke
    Dec 1 '21 at 19:06
  • @ohwilleke choice of law generally applies only to contracts; this was a tort case and I don't believe that there could be an agreement to use foreign law in such a case.
    – Dale M
    Dec 2 '21 at 10:54
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    Choice of law applies to all areas of law. The "choice" in that term refers to the choice of the court regarding what law to apply, rather than to a choice made by the parties. For example, in a case involving a car accident in the U.S. brought in Australia because all parties and the assets of all parties were there, U.S. traffic laws and tort principles would be applied. Sometimes different jurisdiction's laws are even applied to different legal issues in the same case, something called "dépeçage". en.wikipedia.org/wiki/D%C3%A9pe%C3%A7age
    – ohwilleke
    Dec 2 '21 at 18:18

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