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Website Opens Gallery to Artist’s Copyright Suit

TAMPA, Fla. (CN) - A New Jersey art gallery must appear alongside the Trans-Siberian Orchestra as a defendant in an artist's copyright suit, a federal judge ruled.

The Orchestra had hired Florida-based artist Gary Smith to design one of its album covers. But after registering the artwork, known as "Rose Guitar," with the U.S. Copyright Office, he discovered that the orchestra and Greg Hildebrandt, the owner of Spiderwebart Art Gallery, were using the image without his permission. Smith says he never surrendered his copyright interest in the image or agreed to let others use it without permission.

Smith filed suit against the orchestra and Hildebrandt, adding the gallery as a defendant in August 2010 after its owner was dismissed for lack of jurisdiction.

Spiderwebart tried to dismiss itself as well, claiming that it had no offices, bank accounts, inventory or employees in Florida. The gallery's curator, Jean Scrocco, told the court that the Hopatcong, N.J., shop sells about 16 items to Florida residents a year, but none of those works contained "Rose Guitar." She added that Spiderwebart never brought "Rose Guitar" images to the sole Florida exhibit of its inventory in 2009.

Smith countered with images and declarations proving that Spiderwebart's website continued to display images similar to Smith's "Rose Guitar." His attorney, Ashley Taylor, argued that the alleged copyright infringement had occurred in Florida because the gallery's website was accessible to residents of the state. Taylor claimed that she had accessed the Spiderwebart website from Florida on three occasions, and that the website featured artwork depicting the "Rose Guitar" image for sale.

U.S. District Judge Virginia Hernandez Covington denied Spiderwebart's motion to dismiss on March 3, finding that the website passed the accessibility test under Florida's long-arm statute. Covington added that Smith's interest in protecting his copyright outweighed Spiderwebart's burden of litigating in Florida.

Four days later, Spiderwebart filed an emergency motion to stay the order, pending the 11th Circuit's resolution of its appeal. But the 11th Circuit denied the petition on March 16, and Covington likewise denied the stay as moot.

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