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Stocksy United v. Morris

Court of Appeals of Texas, First District

December 19, 2019


          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2017-68883

          Panel consists of Chief Justice Radack and Justices Keyes and Countiss.


          Sherry Radack Chief Justice.

         This is an interlocutory appeal from an order denying a special appearance. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7). Kristen Curette, a Texas resident, photographed Savannah Morris, another Texas resident, and then uploaded the photographs onto a website without Morris's effective consent. Stocksy United, a Canadian cooperative that runs the website, then licensed the photographs to various third parties located throughout the world. Morris sued Stocksy for misappropriation of likeness. Stocksy filed a special appearance, and, in response, Morris argued that Stocksy is subject to specific jurisdiction because Curette acted as Stocksy's agent when she took the photographs and uploaded them onto the website. The trial court agreed with Morris.

         We hold that the evidence is insufficient to support the trial court's legal conclusion that Curette acted as Stocksy's agent and that Morris has not otherwise alleged facts that, if true, bring Stocksy within the reach of Texas's long-arm statute. Accordingly, we reverse the trial court's order, grant Stocksy's special appearance, and dismiss Morris's claim against Stocksy for lack of personal jurisdiction.

         Factual Background

         This case arises from photographs of a minor that were taken without parental consent, uploaded onto a stock photography website, and then licensed to various third parties for commercial use. It involves three main parties.

         The first is Savannah Morris, the minor depicted in the photographs at the center of the dispute. Now an adult, Morris is a resident of Texas, which is where the photoshoots took place.

         The second is Kristen Curette, the photographer who shot Morris and uploaded the photographs onto the website. Like Morris, Curette is a resident of Texas.

         The third is Stocksy United, a privately held Canadian cooperative that operates the website onto which Curette uploaded the photographs of Morris. Stocksy is incorporated under the laws of Alberta, Canada and headquartered in British Columbia, Canada. Stocksy does not have a registered agent in Texas, is not authorized to do business in Texas, does not maintain a place of business in Texas, and does not have any employees or agents who work in Texas.

         Stocksy is a platform cooperative that licenses stock photography for advertisements and other commercial uses. It has three classes of shareholders. The first, Class A, is made up of advisors, including the chief executive officer. The second, Class B, is made up of staff. The third, Class C, is made up of the photographers who supply the content to Stocksy's curated online gallery. The majority of Stocksy's shareholders belong to Class C. Currently, there are almost 1, 000 of these Class C shareholder-contributors ("Contributors"), hailing from some 65 countries. Each Contributor owns one non-par value share and has one vote.

         Stocksy's Contributors take photographs, edit them, and then submit them to Stocksy. Stocksy, in turn, reviews the photographs and, upon approval, adds them to its online gallery. Third parties may then purchase licenses to use the photographs. The revenue from the sale of such licenses is then split between Stocksy and the Contributor who supplied the photograph.

         Stocksy periodically makes an online "Call to Artists" soliciting membership applications from photographers and other potential Contributors. When Stocksy makes a "Call to Artists," Stocksy does not target photographers from any geographic area in particular, but it rather seeks applications from photographers from all over the world. Once Stocksy approves an application, Stocksy and the applicant enter into two agreements.

         The first is the Member Agreement, which is the document by which Stocksy transfers one Class C share to the photographer, thereby making the photographer a Stocksy Contributor. The Member Agreement contains a choice-of-law clause establishing the laws of Canada as the governing law.

         The second is the Member Supply Agreement, which governs the terms by which the Contributor supplies content for license through Stocksy's website. Under the Member Supply Agreement, the Contributor takes photographs at his or her discretion and without direction or oversight from Stocksy. The only requirements are that the photographs be original work[1] and that model releases be obtained for all recognizable persons depicted in the photographs.[2] Like the Member Agreement, the Member Supply Agreement contains a choice-of-law clause establishing the laws of Canada as the governing law.[3] It also contains a forum-selection clause requiring that disputes arising from or relating to the agreement be resolved in Canadian courts.[4] Finally, the Member Supply Agreement provides that the Contributor supplies content to Stocksy as an independent contractor:

The relationship between [Stocksy] and the [Contributor] under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.

         In February 2013, Curette became a Stocksy Contributor. She entered into a Member Agreement and Member Supply Agreement and created an online profile on Stocksy's website onto which she could upload her photographs.

         The events giving rise to the current dispute occurred roughly two years later, on February 8, 2015, when Curette attended an "Instameet" in Houston, Texas. An Instameet is an event at which aspiring models can meet photographers. At the Instameet, Curette met Morris, and the two had an hour-long photoshoot. About half way through, Curette asked Morris to sign a model release so Curette could add the photographs of Morris to her portfolio. Morris signed the release, but then informed Curette that she was only 16 years old. Curette then suggested that Morris sign a parental consent form on her mother's behalf. Morris initialed the form, and the two finished the photoshoot.

         Five days later, on February 13, 2015, Curette and Morris met for another photoshoot. During the shoot, Curette told Morris that she would provide her with copies of the photos she had taken after editing them. Curette also requested that Morris add her birthdate to the model release. Morris did so, confirming that she was a minor.

         Sometime after the February photoshoots, Curette uploaded the photographs of Morris onto her online Stocksy profile, and Stocksy began offering to license the use of the photographs to third parties.

         Curette and Morris met for a third photoshoot on August 5, 2015. During the shoot, Morris complained that she still had not received copies of photos taken of her.

         Four days later, on August 9, 2015, Morris learned that a photograph depicting her likeness was being used in an online advertisement for contact lenses. Morris texted Curette, who confirmed that the advertisement was one of the photographs that Curette had taken of Morris. Morris told Curette that her mother, April Morris, was upset by the release of the photographs and wanted them taken down. Curette ...

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