Mavrix Photo, Inc. v. Brand Technologies, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAVRIX PHOTO, INC., a Florida 

corporation,

Plaintiff-Appellant,

v.

BRAND TECHNOLOGIES, INC., an

Ohio corporation; BRAD MANDELL, No. 09-56134

an individual, D.C. No.

Defendants-Appellees,  2:09-cv-02729-PSG-

and JC

BRANDTECH, a business form OPINION

unknown; GOSSIPGIRLS.COM, a

business form unknown;

CELEBRITY-GOSSIP.NET, a business

form unknown,

Defendants.



Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

October 8, 2010—Pasadena, California

Filed August 8, 2011

Before: Kim McLane Wardlaw and William A. Fletcher,

Circuit Judges, and Barbara M. Lynn, District Judge.*

*The Honorable Barbara M. Lynn, United States District Judge for the

Northern District of Texas, sitting by designation.

10333

10334 MAVRIX PHOTO v. BRAND TECHNOLOGIES

Opinion by Judge William A. Fletcher

10336 MAVRIX PHOTO v. BRAND TECHNOLOGIES

COUNSEL

Peter Afrasiabi, Christopher Arledge, John Tehranian, One

LLP, Newport Beach, California, for the appellant.

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10337

Andres F. Quintana, Quintana Law Group, Calabasas, Cali-

fornia, for the appellees.

OPINION

W. FLETCHER, Circuit Judge:

Mavrix Photo, Inc. (“Mavrix”) sued Brand Technologies,

Inc. and its CEO, Brad Mandell (collectively, “Brand”), in

federal district court for the Central District of California,

alleging that Brand infringed Mavrix’s copyright by posting

its copyrighted photos on its website. Brand moved to dismiss

for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2).

The district court denied Mavrix’s motion for jurisdictional

discovery and granted Brand’s motion to dismiss. We reverse.

We hold that Brand is not subject to general personal jurisdic-

tion in California, but that its contacts with California are suf-

ficiently related to the dispute in this case that it is subject to

specific personal jurisdiction.

I. Background

Mavrix, a Florida corporation with its principal place of

business in Miami, is a celebrity photo agency. Mavrix pays

photographers for candid photos of celebrities. Its primary

business is licensing and selling those photos to purveyors of

celebrity news such as People and Us Weekly magazines.

Many of the celebrities whom Mavrix photographs live and

work in Southern California. Mavrix keeps a Los Angeles

office, employs Los Angeles-based photographers, has a reg-

istered agent for service of process in California, and pays

fees to the California Franchise Tax Board.

Brand, an Ohio corporation with its principal place of busi-

ness in Toledo, operates a website called celebrity-gossip.net.

As its name suggests, the website covers popular personalities

10338 MAVRIX PHOTO v. BRAND TECHNOLOGIES

in the entertainment industry and features photo galleries, vid-

eos, and short articles (for example, “Lindsay Lohan Stays

Sexy and Sober,” and “Shiloh Jolie-Pitt Named Most Influen-

tial Infant”). The website has several interactive features. Vis-

itors to the site may post comments on articles, vote in polls

(“Is Robert Pattinson the sexiest man on the planet?”), sub-

scribe to an email “Celebrity Newsletter,” join the “Gossip

Center” membership club, and submit news tips and photos of

celebrities. The website is very popular. When this litigation

began, Alexa.com, an Internet tracking service, ranked

celebrity-gossip.net as number 3,622 out of approximately

180 million websites worldwide based on traffic. By compari-

son, the national news website MSNBC.com was then ranked

number 2,521. In its marketing materials, Brand claims that

celebrity-gossip.net currently receives more than 12 million

unique U.S. visitors and 70 million U.S. page views per

month. Gossip Center Network, Media Kit, at 3, available at

http://cdn.gossipcenter.com/gossipgirls_cdn/GCN-MediaKit

.pdf (last visited July 21, 2011). The record does not reflect

how many of the website’s visitors are California residents.

Like any large media entity, celebrity-gossip.net courts a

national audience, not restricted to California. However, the

website has some specific ties to California. Brand makes

money from third-party advertisements for jobs, hotels, and

vacations in California. The website also features a “Ticket

Center,” which is a link to the website of a third-party vendor

that sells tickets to nationwide events. Some of these events

are in California. Brand has agreements with several Califor-

nia businesses. A California Internet advertising agency solic-

its buyers and places advertisements on celebrity-gossip.net.

A California wireless provider designed and hosts on its serv-

ers a version of celebrity-gossip.net accessible to mobile

phone users. A California firm designed the website and per-

forms site maintenance. Finally, Brand has entered a “link-

sharing” agreement with a California-based national news

site, according to which each site agrees to promote the

other’s top stories. However, Brand has no offices, real prop-

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10339

erty, or staff in California, is not licensed to do business in

California, and pays no California taxes.

In 2008, a photographer working for Mavrix shot thirty-

five pictures of Stacy Ferguson and Josh Duhamel while the

couple was bathing, sunning, and jet skiing in the Bahamas.

Ferguson, better known by her stage name Fergie, is a singer

in the hip-hop group the Black Eyed Peas. The group has sold

some 56 million records in the last decade and has won

Grammy awards for such hit singles as “I Gotta Feeling” and

“My Humps.” See The Black Eyed Peas, Wikipedia, http://

en.wikipedia.org/wiki/The_Black_Eyed_Peas (last visited

July 21, 2011). Ferguson’s husband Duhamel is an actor who

has appeared, most notably, in the trilogy of Transformers

movies. See Josh Duhamel, The Internet Movie Database,

http://www.imdb.com/name/nm0241049 (last visited July 21,

2011). Mavrix registered its copyright in the photos and

posted them on its website. Mavrix alleges that shortly there-

after Brand reposted the photos on celebrity-gossip.net in vio-

lation of Mavrix’s copyright. Mavrix alleges that in doing so

Brand destroyed the market value of the photos.

Mavrix sued in federal district court for the Central District

of California, alleging that Brand infringed Mavrix’s copy-

right in the photos. See 17 U.S.C. § 501. Mavrix sought an

injunction barring Brand from further disseminating the pho-

tos, as well as actual and statutory damages. See id. §§ 502,

504. Brand moved to dismiss for lack of personal jurisdiction.

See Fed. R. Civ. P. 12(b)(2). The district court denied

Mavrix’s request for leave to conduct jurisdictional discovery

and granted the motion to dismiss. Mavrix timely appealed.

II. Standard of Review

We review a dismissal for lack of personal jurisdiction de

novo. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.

2008). In opposing a defendant’s motion to dismiss for lack

of personal jurisdiction, the plaintiff bears the burden of

10340 MAVRIX PHOTO v. BRAND TECHNOLOGIES

establishing that jurisdiction is proper. Id. Where, as here, the

defendant’s motion is based on written materials rather than

an evidentiary hearing, the plaintiff need only make a prima

facie showing of jurisdictional facts to withstand the motion

to dismiss. Brayton Purcell LLP v. Recordon & Recordon,

606 F.3d 1124, 1127 (9th Cir. 2010). The plaintiff cannot

“simply rest on the bare allegations of its complaint,” but

uncontroverted allegations in the complaint must be taken as

true. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 800 (9th Cir. 2004) (quoting Amba Mktg. Sys., Inc. v.

Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). “[W]e

may not assume the truth of allegations in a pleading which

are contradicted by affidavit,” Data Disc, Inc. v. Sys. Tech.

Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977), but we

resolve factual disputes in the plaintiff’s favor, Pebble Beach

Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).

Where, as here, no federal statute authorizes personal juris-

diction, the district court applies the law of the state in which

the court sits. Fed. R. Civ. P. 4(k)(1)(A); Panavision Int’l,

L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). Califor-

nia’s long-arm statute, Cal. Civ. Proc. Code § 410.10, is coex-

tensive with federal due process requirements, so the

jurisdictional analyses under state law and federal due process

are the same. Schwarzenegger, 374 F.3d at 800-01. For a

court to exercise personal jurisdiction over a nonresident

defendant consistent with due process, that defendant must

have “certain minimum contacts” with the relevant forum

“such that the maintenance of the suit does not offend ‘tradi-

tional notions of fair play and substantial justice.’ ” Interna-

tional Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

III. Discussion

A. General Jurisdiction

[1] Mavrix argues that Brand is subject to general jurisdic-

tion in California. “A court may assert general jurisdiction

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10341

over foreign (sister-state or foreign-country) corporations to

hear any and all claims against them when their affiliations

with the State are so ‘continuous and systematic’ as to render

them essentially at home in the forum State.” Goodyear Dun-

lop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851

(2011). For general jurisdiction to exist, a defendant must

engage in “continuous and systematic general business con-

tacts,” Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 416 (1984), that “approximate physical pres-

ence” in the forum state, Bancroft & Masters, Inc. v. Augusta

Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). “The stan-

dard is met only by ‘continuous corporate operations within

a state [that are] thought so substantial and of such a nature

as to justify suit against [the defendant] on causes of action

arising from dealings entirely distinct from those activities.’ ”

King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579 (9th Cir.

2011) (alterations in original) (quoting International Shoe,

326 U.S. at 318)). To determine whether a nonresident defen-

dant’s contacts are sufficiently substantial, continuous, and

systematic, we consider their “[l]ongevity, continuity, vol-

ume, economic impact, physical presence, and integration into

the state’s regulatory or economic markets.” Tuazon v. R.J.

Reynolds Tobacco Co., 433 F.3d 1163, 1172 (9th Cir. 2006).

The standard for general jurisdiction “is an exacting standard,

as it should be, because a finding of general jurisdiction per-

mits a defendant to be haled into court in the forum state to

answer for any of its activities anywhere in the world.” Sch-

warzenegger, 374 F.3d at 801.

The Supreme Court has found general personal jurisdiction

over a non-resident defendant in only one case, although it did

not use the term “general jurisdiction” in its opinion. Perkins

v. Benguet Consol. Mining Co., 342 U.S. 437, 447-48 (1952).

The Court has recently described Perkins as the “textbook

case of general jurisdiction appropriately exercised over a for-

eign corporation that has not consented to suit in the forum.”

Goodyear, 131 S. Ct. at 2856 (citation and internal quotation

marks omitted). The facts of Perkins illustrate the nature and

10342 MAVRIX PHOTO v. BRAND TECHNOLOGIES

extent of the contacts required for general jurisdiction. The

defendant was a Philippine corporation whose mining opera-

tions were suspended while the Japanese occupied the Philip-

pines during World War II. 342 U.S. at 447. The

corporation’s president, who was also its general manager and

principal stockholder, returned to his home in Ohio, where he

ran a corporate office. Id. at 447-48. The president kept busi-

ness files in Ohio; handled corporate correspondence from

Ohio; drew employees’ salaries from accounts in Ohio banks

and distributed paychecks; held directors’ meetings while he

was in Ohio; and “carried on in Ohio a continuous and sys-

tematic supervision of the necessarily limited wartime activi-

ties of the company.” Id. at 448. Plaintiff’s “cause of action

. . . did not arise in Ohio and [did] not relate to the corpora-

tion’s activities there.” Id. at 438. But because of the nature

and extent of the corporation’s activities in the state, “Ohio

was the corporation’s principal, if temporary, place of busi-

ness.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779

n.11 (1984) (describing facts of Perkins). The Court therefore

upheld the exercise of personal jurisdiction over the corpora-

tion in Ohio. Id.; see also, e.g., Tuazon, 433 F.3d at 1173-74

(finding general jurisdiction in Washington over North Caro-

lina cigarette company that had been licensed to do business

in the state for more than 60 years, had advertised in purely

local publications for more than 50 years, kept a permanent

office and workforce in-state, engaged in local political activ-

ity, and had made “hundreds of millions of dollars in annual

net sales in recent years”).

By contrast, both the Supreme Court and our court have

refused to permit the exercise of general jurisdiction based on

contacts that were not so substantial, continuous, or system-

atic. For example, in Goodyear, the Court held that foreign

subsidiaries of Goodyear USA, organized and operating in

Turkey, France and Luxembourg, were not subject to general

jurisdiction in North Carolina. Two North Carolina residents

had been killed in France when a tire manufactured by one of

the subsidiaries failed, causing a bus to overturn. 131 S. Ct.

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10343

at 2851. Between 2004 and 2007, tens of thousands of tires

made by the foreign subsidiaries, out of tens of millions of

tires manufactured made by them during this period, reached

North Carolina through the “stream of commerce.” Id. at

2852. However, the subsidiaries were not registered to do

business in North Carolina; had no places of business, no

employees, and no bank accounts in North Carolina; did not

design, manufacture, or advertise their tires in North Carolina;

did not solicit business in North Carolina; and did not them-

selves sell or ship tires to customers in North Carolina. Id.

In Helicopteros, the Court held that a Colombian corpora-

tion was not subject to general jurisdiction in Texas even

though the corporation sent its CEO to Texas to negotiate a

contract; spent more than $4 million to purchase approxi-

mately 80 percent of its fleet of aircraft, as well as spare parts

and accessories, from a Texas supplier; sent pilots for training

in Texas; sent management and maintenance personnel to

Texas for technical consultation; and received over $5 million

in contract payments from funds drawn on a Texas bank. 466

U.S. at 411, 417; see also, e.g., Keeton, 465 U.S. at 772, 779

n.11 (contrasting Perkins and denying general jurisdiction in

New Hampshire over Ohio corporation that circulated 10,000-

15,000 copies of its magazine per month in New Hampshire);

Schwarzenegger, 374 F.3d at 801 (denying general jurisdic-

tion in California over Ohio automobile dealership that regu-

larly purchased automobiles imported by California importers

via contracts that included a choice-of-law provision specify-

ing California law; regularly retained the services of a Cali-

fornia marketing company; hired a California corporation for

consulting services; and maintained a website accessible in

California); Glencore Grain Rotterdam B.V. v. Shivnath Rai

Harnarain Co., 284 F.3d 1114, 1124-25 (9th Cir. 2002); Ban-

croft & Masters, 223 F.3d at 1086.

Mavrix argues that Brand is subject to general jurisdiction

in California on the basis of the following contacts: Brand

allows third parties to advertise jobs, hotels, and vacations in

10344 MAVRIX PHOTO v. BRAND TECHNOLOGIES

California on its website; sells, or allows a third-party vendor

to sell, tickets to California events on its website; employs a

California firm to design its website; has business relation-

ships with a California-based national news organization, an

Internet advertising agency, and a wireless provider; and

maintains a “highly interactive” website.

[2] These contacts fall well short of the requisite showing

for general jurisdiction. We reiterate that Brand has no offices

or staff in California, is not registered to do business in the

state, has no registered agent for service of process, and pays

no state taxes. See, e.g., Goodyear, 131 S. Ct. at 2852; Heli-

copteros, 466 U.S. at 411; Glencore Grain, 284 F.3d at 1124;

Bancroft & Masters, 223 F.3d at 1086. Third parties use

Brand’s website to advertise California jobs, hotels, and vaca-

tions. A substantial number of the website visitors to whom

these advertisements are directed are California residents. But

Brand does not “solicit[ ] . . . business in the state” by carry-

ing those advertisements. Bancroft & Masters, 223 F.3d at

1086. Instead, it allows other entities to solicit business by

taking advantage of Brand’s existing user base. Evidence that

a nonresident defendant advertises in a forum is significant

for general jurisdiction when the defendant markets its own

product by targeting forum residents, see, e.g., Tuazon, 433

F.3d at 1174; Congoleum Corp. v. DLW Akiengesellschaft,

729 F.2d 1240, 1242-43 (9th Cir. 1984), but has less signifi-

cance for general jurisdiction when other entities use the

defendant’s publication to promote their own businesses.

[3] The parties dispute the identity of the ticket vendor.

Brand’s CEO, Mandell, declares that Brand merely links to a

third party’s ticket service. Mavrix argues that Brand is the

true seller. Whether the ticket sales are attributable to Brand

or to a third-party vendor, Mandell declares and Mavrix does

not dispute that it has made only a single ticket sale through

its “Ticket Center,” and that Mavrix’s counsel was the buyer.

We have held that “occasional” sales to forum residents by a

nonresident defendant do not suffice to establish general juris-

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10345

diction. See Bancroft & Masters, 223 F.3d at 1086; Brand v.

Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986). Indeed,

we have held that even the physical presence in the forum

state of a sales agent, see Glencore Grain, 284 F.3d at 1124-

25, or a “substantial sales force,” Congoleum, 729 F.2d at

1242, is insufficient to establish general jurisdiction.

[4] Brand’s relationship with its website designer is like-

wise insufficient. Brand’s CEO declares, and Mavrix does not

dispute, that the independent contractors who designed

celebrity-gossip.net were Canadian citizens who, after build-

ing celebrity-gossip.net, formed a California web design firm.

Although that firm continues to perform website maintenance

for Brand and sends bills to Brand from California, the con-

tractors do the work in Canada. That those contractors incor-

porated in California after building celebrity-gossip.net is a

“fortuitous circumstance” upon which jurisdiction cannot be

premised. See World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 295 (1980).

Brand’s business relationships with other California com-

panies constitute “doing business with California,” but not

necessarily “doing business in California.” See Schwarzeneg-

ger, 374 F.3d at 801; Bancroft & Masters, 223 F.3d at 1086.

In Schwarzenegger, we rejected a nonresident defendant’s

partnership with a forum-based advertising agency as a basis

for general jurisdiction. 374 F.3d at 801. And in Bancroft &

Masters, we rejected a nonresident defendant’s licensing

agreements with forum-based television networks and ven-

dors. 223 F.3d at 1086. There, we explained that “engaging in

commerce with residents of the forum state is not in and of

itself the kind of activity that approximates physical presence

within the state’s borders.” Id. (citing Helicopteros, 466 U.S.

at 418).

Finally, Brand’s operation of an interactive website — even

a “highly interactive” website — does not confer general

jurisdiction. Mavrix relies on Zippo Mfg. Co. v. Zippo Dot

10346 MAVRIX PHOTO v. BRAND TECHNOLOGIES

Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), but that reli-

ance, in the context of general jurisdiction, is misplaced. The

court in Zippo developed a “sliding scale” test to characterize

the “nature and quality of commercial activity that an entity

conducts over the Internet.” Id. at 1124. At one end of the

scale were active sites “where a defendant clearly does busi-

ness over the Internet” and “enters into contracts with resi-

dents of a foreign jurisdiction that involve the knowing and

repeated transmission of computer files over the Internet,”

which support jurisdiction. Id. At the other end were passive

sites “where a defendant has simply posted information on an

Internet Web site which is accessible to users in foreign juris-

dictions,” and which do not support jurisdiction. Id. Under the

Zippo analysis, the availability of jurisdiction is determined

by examining the “level of interactivity and commercial

nature of the exchange . . . that occurs on the Web site.” Id.

[5] We have followed Zippo. See, e.g., Cybersell, Inc. v.

Cybersell, Inc., 130 F.3d 414, 418-19 (9th Cir. 1997). But

Zippo’s sliding scale test was formulated in the context of a

specific jurisdiction inquiry. See id. at 1122. The level of

interactivity of a nonresident defendant’s website provides

limited help in answering the distinct question whether the

defendant’s forum contacts are sufficiently substantial, con-

tinuous, and systematic to justify general jurisdiction. See,

e.g., Lakin v. Prudential Sec., Inc., 348 F.3d 704, 712 (8th

Cir. 2003) (“Under the Zippo test, it is possible for a Web site

to be very interactive, but to have no quantity of contacts. In

other words, the contacts would be continuous, but not sub-

stantial. This is untenable in a general jurisdiction analysis.”);

Revell v. Lidov, 317 F.3d 467, 471 (5th Cir. 2002) (Zippo test

“is not well adapted to the general jurisdiction inquiry,

because even repeated contacts with forum residents by a for-

eign defendant may not constitute the requisite substantial,

continuous and systematic contacts required for a finding of

general jurisdiction”); accord 4A Charles Alan Wright &

Arthur R. Miller, Federal Practice & Procedure § 1073.1, at

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10347

331 (3d ed. 2002) (“[T]he Zippo case’s sliding scale approach

should be of little value in a general jurisdiction analysis.”).

[6] Many of the features on which Mavrix relies to show

Zippo interactivity — commenting, receiving email newslet-

ters, voting in polls, uploading user-generated content — are

standard attributes of many websites. Such features require a

minimal amount of engineering expense and effort on the part

of a site’s owner and do not signal a non-resident defendant’s

intent to “sit down and make itself at home” in the forum by

cultivating deep, persistent ties with forum residents. Tuazon,

433 F.3d at 1169 (internal quotation marks and alterations

omitted). To permit the exercise of general jurisdiction based

on the accessibility in the forum of a non-resident interactive

website would expose most large media entities to nationwide

general jurisdiction. That result would be inconsistent with

the constitutional requirement that “the continuous corporate

operations within a state” be “so substantial and of such a

nature as to justify suit against [the nonresident defendant] on

causes of action arising from dealings entirely distinct from

those activities.” International Shoe, 326 U.S. at 318. See

generally 4 Raymond T. Nimmer, The Law of Computer

Technology § 19:7, at 19-12 n.1 (4th ed. 2011) (collecting

cases).

[7] In sum, Brand’s contacts with California, even consid-

ered collectively, do not justify the exercise of general juris-

diction.

B. Specific Jurisdiction

In the alternative, Mavrix argues that Brand has sufficient

“minimum contacts” with California arising out of, or related

to, its actions in reposting the photos of Ferguson and Duha-

mel to justify the exercise of specific jurisdiction. We analyze

specific jurisdiction under a three-prong test:

(1) The non-resident defendant must purposefully

direct his activities or consummate some transaction

10348 MAVRIX PHOTO v. BRAND TECHNOLOGIES

with the forum or resident thereof; or perform some

act by which he purposefully avails himself of the

privilege of conducting activities in the forum,

thereby invoking the benefits and protections of its

laws; (2) the claim must be one which arises out of

or relates to the defendant’s forum-related activities;

and (3) the exercise of jurisdiction must comport

with fair play and substantial justice, i.e. it must be

reasonable.

Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817

F.2d 1416, 1421 (9th Cir. 1987) (emphases added)). Mavrix

bears the burden of satisfying the first two prongs. Sher v.

Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If Mavrix does

so, the burden then shifts to Brand to set forth a “compelling

case” that the exercise of jurisdiction would not be reason-

able. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78

(1985).

Only the first prong is at issue here. As to the second prong,

Mavrix’s claim of copyright infringement arises out of

Brand’s publication of the photos on a website accessible to

users in the forum state. As to the third prong, Brand does not

argue that the exercise of jurisdiction would be unreasonable

on the basis of any of the factors listed in Burger King.

[8] The first prong of the specific jurisdiction test refers to

both purposeful direction and purposeful availment. We have

explained that in cases involving tortious conduct, we most

often employ a purposeful direction analysis. Schwarzeneg-

ger, 374 F.3d at 802. “In tort cases, we typically inquire

whether a defendant ‘purposefully direct[s] his activities’ at

the forum state, applying an ‘effects’ test that focuses on the

forum in which the defendant’s actions were felt, whether or

not the actions themselves occurred within the forum.”

Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199,

1206 (9th Cir. 2006) (en banc) (quoting Schwarzenegger, 374

F.3d at 803 (alterations in original)). The “effects” test, which

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10349

is based on the Supreme Court’s decision in Calder v. Jones,

465 U.S. 783 (1984), requires that “the defendant allegedly

must have (1) committed an intentional act, (2) expressly

aimed at the forum state, (3) causing harm that the defendant

knows is likely to be suffered in the forum state.” Brayton

Purcell, 606 F.3d at 1128 (quoting Yahoo!, 433 F.3d at 1206).

Because Mavrix has alleged copyright infringement, a tort-

like cause of action, purposeful direction “is the proper ana-

lytical framework.” Id. (citing Schwarzenegger, 374 F.3d at

802).

We believe that the Supreme Court’s recent decision in J.

McIntyre Machinery, Ltd., v. Nicastro, 131 S. Ct. 2780

(2011), is consistent with the line of cases finding specific

jurisdiction when there has been purposeful direction. J.

McIntyre Machinery was a product liability case. The ques-

tion was whether suit could be brought in New Jersey state

court against a manufacturer headquartered in the United

Kingdom based on an injury caused by an allegedly defective

product made in the U.K. In performing a purposeful avail-

ment (rather than a purposeful direction) analysis, the plural-

ity wrote:

As a general rule, the exercise of judicial power is

not lawful unless the defendant “purposefully avails

itself of the privilege of conducting activities within

the forum State, thus invoking the benefits and pro-

tections of its laws.” Hanson v. Denckla, 357 U.S.

235, 253 (1958). There may be exceptions, say, for

instance, in cases involving an intentional tort. But

the general rule is applicable in this products-

liability case, and the so-called “stream-of-

commerce” doctrine cannot displace it.

J. McIntyre Mach., 131 S. Ct. at 2785 (plurality op. of Ken-

nedy, J.); see also id. at 2787 (distinguishing intentional tort

cases from cases governed by this “general rule”). We there-

10350 MAVRIX PHOTO v. BRAND TECHNOLOGIES

fore address the three requirements of the Calder “effects”

test in turn.

[9] First, we conclude that Brand “committed an inten-

tional act.” There is no question that it acted intentionally

reposting the allegedly infringing photos of Ferguson and

Duhamel.

Second, we conclude that Brand “expressly aimed at the

forum state.” In prior cases, we have struggled with the ques-

tion whether tortious conduct on a nationally accessible web-

site is expressly aimed at any, or all, of the forums in which

the website can be viewed. See, e.g., Brayton Purcell, 606

F.3d at 1129-31; Pebble Beach, 453 F.3d at 1156-58; Rio

Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019-21 (9th

Cir. 2002); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316,

1321-22 (9th Cir. 1998); Cybersell, 130 F.3d at 417. On the

one hand, we have made clear that “maintenance of a passive

website alone cannot satisfy the express aiming prong.” Bray-

ton Purcell, 606 F.3d at 1129. On the other, we have held that

“operating even a passive website in conjunction with ‘some-

thing more’ — conduct directly targeting the forum — is suf-

ficient.” Rio Props., 284 F.3d at 1020. In determining whether

a nonresident defendant has done “something more,” we have

considered several factors, including the interactivity of the

defendant’s website, e.g., Pebble Beach, 453 F.3d at 1153-54,

1158; Cybersell, 130 F.3d at 417-20; the geographic scope of

the defendant’s commercial ambitions, e.g., Pebble Beach,

453 F.3d at 1156-58; Rio Props., 284 F.3d at 1020-21; and

whether the defendant “individually targeted” a plaintiff

known to be a forum resident, e.g., Brayton Purcell, 606 F.3d

at 1129; Pebble Beach, 453 F.3d at 1156-57; Panavision, 141

F.3d at 1321-22.

[10] In this case, we find most salient the fact that Brand

used Mavrix’s copyrighted photos as part of its exploitation

of the California market for its own commercial gain. The

Court’s decision in Keeton is directly relevant. See Schwar-

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10351

zenegger, 374 F.3d at 803 (describing Keeton as a purposeful

direction case). The plaintiff in Keeton was a New York resi-

dent. She sued Hustler magazine, an Ohio corporation, for

libel in New Hampshire based on the circulation in New

Hampshire of copies of the magazine that contained the alleg-

edly libelous material. 465 U.S. at 772. The plaintiff sued in

New Hampshire in order to take advantage of the state’s

unusually long statute of limitations, even though she had vir-

tually no connection with the forum. Id. at 772 n.1, 780. Hus-

tler had a circulation of 10,000-15,000 copies per month in

New Hampshire, but no other contacts with the forum. Id. at

772. The Court concluded that Hustler’s

regular circulation of magazines in the forum State

is sufficient to support an exercise of jurisdiction in

a libel action based on the contents of the magazine

. . . . Such regular monthly sales of thousands of

magazines cannot by any stretch of the imagination

be characterized as random, isolated, or fortuitous. It

is, therefore, unquestionable that New Hampshire

jurisdiction over a complaint based on those contacts

would ordinarily satisfy the requirement of the Due

Process Clause that a State’s assertion of personal

jurisdiction over a nonresident defendant be predi-

cated on ‘minimum contacts’ between the defendant

and the State.

Id. at 773-74. The Court acknowledged that New Hampshire

accounted for a share of Hustler’s overall business that was

too small to support the exercise of general jurisdiction, but

noted that Hustler was “carrying on a ‘part of its general busi-

ness’ in New Hampshire, and that is sufficient to support

jurisdiction when the cause of action arises out of the very

activity being conducted, in part, in New Hampshire.” Id. at

779-80 (quoting Perkins, 342 U.S at 438). Finally, the Court

specified that because Hustler

has continuously and deliberately exploited the New

Hampshire market, it must reasonably anticipate

10352 MAVRIX PHOTO v. BRAND TECHNOLOGIES

being haled into court there in a libel action based on

the contents of its magazine . . . . [Hustler] produces

a national publication aimed at a nationwide audi-

ence. There is no unfairness in calling it to answer

for the contents of that publication wherever a sub-

stantial number of copies are regularly sold and dis-

tributed.

Id. at 781.

[11] As did Hustler in distributing its magazine in New

Hampshire, Brand “continuously and deliberately exploited”

the California market for its website. Brand makes money by

selling advertising space on its website to third-party advertis-

ers: the more visitors there are to the site, the more hits that

are made on the advertisements; the more hits that are made

on the advertisements, the more money that is paid by the

advertisers to Brand. A substantial number of hits to Brand’s

website came from California residents. One of the ways we

know this is that some of the third-party advertisers on

Brand’s website had advertisements directed to Californians.

In this context, it is immaterial whether the third-party adver-

tisers or Brand targeted California residents. The fact that the

advertisements targeted California residents indicates that

Brand knows — either actually or constructively — about its

California user base, and that it exploits that base for commer-

cial gain by selling space on its website for advertisements.

Compare, e.g., Brayton Purcell, 606 F.3d at 1130 (nonresi-

dent defendant subject to specific jurisdiction “had every rea-

son to believe prospective clients in [the forum] would see the

website — indeed, attracting new business was the point”)

with Cybersell, 130 F.3d at 419 (nonresident defendant not

subject to specific jurisdiction because “there is no evidence

that any part of its business (let alone a continuous part of its

business) was sought or achieved” in forum).

[12] The record does not show that Brand marketed its

website in California local media. Cf. Rio Props., 284 F.3d at

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10353

1020. But it is clear from the record that Brand operated a

very popular website with a specific focus on the California-

centered celebrity and entertainment industries. Based on the

website’s subject matter, as well as the size and commercial

value of the California market, we conclude that Brand antici-

pated, desired, and achieved a substantial California viewer

base. This audience is an integral component of Brand’s busi-

ness model and its profitability. As in Keeton, it does not vio-

late due process to hold Brand answerable in a California

court for the contents of a website whose economic value

turns, in significant measure, on its appeal to Californians.

[13] The applicability of Keeton to this case depends on

two similarities between celebrity-gossip.net and Hustler

magazine. First, both were large publications that sought and

attracted nationwide audiences. Both publications could count

on reaching consumers in all fifty states. Second, both publi-

cations cultivated their nationwide audiences for commercial

gain. Accordingly, neither could characterize the consumption

of its products in any state as “random,” “fortuitous,” or “at-

tenuated.” Burger King, 471 U.S. at 486. Rather, consumption

was a predictable consequence of their business models. See

Goodyear, 131 S. Ct. at 2855 (“[W]here ‘the sale of a product

. . . arises from the efforts of the manufacturer or distributor

to serve . . . the market for its product in [several] States, it

is not unreasonable to subject it to suit in one of those states

if its allegedly defective merchandise has there been the

source of injury to its owner or to others.” (quoting World-

Wide Volkswagen, 444 U.S. at 297 (emphasis and second

alteration added by Goodyear))); Mattel, Inc. v. MCA

Records, Inc., 296 F.3d 894, 899 (9th Cir. 2002); Plant Food

Co-op v. Wolfkill Feed & Fertilizer Corp., 633 F.2d 155, 158-

60 (9th Cir. 1980). The same would not necessarily be true,

for example, of a local newspaper, an individual, or an unpaid

blogger who posted an allegedly actionable comment or photo

to a website accessible in all fifty states, but who could not

be as certain as Brand or Hustler that his actions would be so

widely observed and who did not seek commercial gain from

10354 MAVRIX PHOTO v. BRAND TECHNOLOGIES

users outside his locality. Not all material placed on the Inter-

net is, solely by virtue of its universal accessibility, expressly

aimed at every state in which it is accessed. But where, as

here, a website with national viewership and scope appeals to,

and profits from, an audience in a particular state, the site’s

operators can be said to have “expressly aimed” at that state.

We acknowledge the burden that our conclusion may

impose on some popular commercial websites. But we note

that the alternative proposed by Brand’s counsel at oral argu-

ment — that Mavrix can sue Brand only in Ohio or Florida

— would substantially undermine the “interests . . . of the

plaintiff in proceeding with the cause in the plaintiff’s forum

of choice.” Kulko v. Superior Court of Cal., 436 U.S. 84, 92

(1978). Brand’s theory of jurisdiction would allow corpora-

tions whose websites exploit a national market to defeat juris-

diction in states where those websites generate substantial

profits from local consumers. See Burger King, 471 U.S. at

473-74 (“[W]here individuals ‘purposefully derive benefit’

from their interstate activities, it may well be unfair to allow

them to escape having to account in other States for conse-

quences that arise predictably from such activities; the Due

Process Clause may not readily be wielded as a territorial

shield to avoid interstate obligations that have been voluntar-

ily assumed.” (quoting Kulko, 436 U.S. at 96)). We also note

that the “expressly aimed” requirement is a necessary but not

sufficient condition for jurisdiction. In order to establish spe-

cific jurisdiction, a plaintiff must also show that jurisdiction-

ally significant harm was suffered in the forum state.

[14] We therefore turn to the question of harm, the third

element of the Calder effects test. We conclude that Brand

has “caus[ed] harm that [it] knows is likely to be suffered in

the forum state.” In determining the situs of a corporation’s

injury, “[o]ur precedents recognize that in appropriate circum-

stances a corporation can suffer economic harm both where

the bad acts occurred and where the corporation has its princi-

pal place of business.” Dole Food Co., Inc. v. Watts, 303 F.3d

MAVRIX PHOTO v. BRAND TECHNOLOGIES 10355

1104, 1113 (9th Cir. 2002). “[J]urisdictionally sufficient harm

may be suffered in multiple forums.” Id. (citing Core-Vent

Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1486 (9th Cir.

1993)). Mavrix alleges that, by republishing the photos of

Ferguson and Duhamel, Brand interfered with Mavrix’s

exclusive ownership of the photos and destroyed their market

value. The economic loss caused by the intentional infringe-

ment of a plaintiff’s copyright is foreseeable. See Brayton

Purcell, 606 F.3d at 1131. It was foreseeable that this eco-

nomic loss would be inflicted not only in Florida, Mavrix’s

principal place of business, but also in California. A substan-

tial part of the photos’ value was based on the fact that a sig-

nificant number of Californians would have bought

publications such as People and Us Weekly in order to see the

photos. Because Brand’s actions destroyed this California-

based value, a jurisdictionally significant amount of Mavrix’s

economic harm took place in California.

[15] In sum, we conclude that Mavrix has presented a

prima facie case of purposeful direction by Brand sufficient

to survive a motion to dismiss for lack of personal jurisdic-

tion.

Conclusion

We conclude that Brand is subject to specific personal

jurisdiction, but not general personal jurisdiction, in Califor-

nia. We therefore reverse the district court’s dismissal of

Mavrix’s complaint and remand for further proceedings con-

sistent with this opinion.

REVERSED and REMANDED.