Appeal from the 234th District Court Harris County, Texas
Trial Court Case No. 2017-68883
consists of Chief Justice Radack and Justices Keyes and
Radack Chief Justice.
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.
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.
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.
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
second is Kristen Curette, the photographer who shot Morris
and uploaded the photographs onto the website. Like Morris,
Curette is a resident of Texas.
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.
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
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
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.
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.
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
and that model releases be obtained for all recognizable
persons depicted in the photographs. Like the Member Agreement,
the Member Supply Agreement contains a choice-of-law clause
establishing the laws of Canada as the governing
It also contains a forum-selection clause requiring that
disputes arising from or relating to the agreement be
resolved in Canadian courts. 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.
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.
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.
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.
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.
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.
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 ...