Viglione v. Heart Brands, Inc

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 22-CV-10175 KEITH VIGLIONE V. HEART BRANDS, INC. MEMORANDUM & ORDER January 9, 2023 ZOBEL, S.D.J. Plaintiff Keith Viglione initiated this lawsuit against Defendant Heart Brands, Inc., for copyright infringement and removal of copyright management information. Plaintiff alleges that he took a photograph on February 5, 2017, of the Prudential Tower lit up to read “GO PATS.” He registered that photograph with the United States Copyright Office on the same day. Plaintiff further alleges that Defendant removed the watermark and then posted the photograph to its social media account without permission. Defendant has moved to dismiss the complaint for (1) lack of personal jurisdiction, (2) failure to state a claim, and (3) insufficient service of process. Docket # 8. Defendant has failed to meet its burden and the motion is denied. First, personal jurisdiction exists because Defendant has sufficiently availed itself of Massachusetts commerce through its online store, which offers shipping throughout the United States, and markets items branded with Massachusetts’ town names and insignias. See Access Now, Inc. v. Sportswear, Inc., 298 F.Supp.3d 296, 301-03 (D. Mass. 2018) (finding personal jurisdiction of out-of-state company because it generated “revenue from online sales in the Commonwealth and feature[d] products bearing the names of Massachusetts schools, universities and athletic teams’). Second, Plaintiff has provided sufficient factual allegations in support of his claim to survive a motion to dismiss, including ownership of the copyrighted photograph and Defendant's use thereof. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Third, Plaintiffs service was proper, despite the summons missing the location and date posted, because such deficiencies do not render service invalid. See Fed. R. Civ. P. 4(1)(3). Plaintiff shall file an amended proof of service stating where the summons was posted and on what date. The motion to dismiss (Docket # 8) is DENIED. ato 9/2023 Ven Cal DA RYA W. ZOBE UNITED’STATES DISTRICT JUDGE