Centre Of Gravity Of Activity Is PLace Where Infringing Party Designed And Manufactured Product Case Summary

Video Game Law Blog

July 20, 2005

Biggs, a wildlife photographer in Fort Worth, Texas, sued various companies, including a coin-operated game distributor and a software distributor, for copyright infringement.  Biggs claimed that the companies had infringed his copyrights by copying, distributing and displaying various images of deer and turkey which he photographed, in the games "Big Buck Hunter," "Big Buck Hunter Shooters' Challenge," and "Big Buck Hunter 2: Sportsmen's Challenge."

The defendants applied to transfer the case from Texas to Illinois and were denied.

The court considered the following factors  (1) the convenience of the parties; (2) the convenience of material witnesses; (3) the availability of processes to compel the presence of unwilling witnesses; (4) the cost of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and (8) the interests of justice in general.

In handing down its decision, the Texas District Court stated that the first factor is "perhaps the most important factor in determining whether or not to transfer a case…"  In this particular isntance, a transfer of venue would have clearly shifted the inconvenience and expense from the defendants to Biggs.

On factor 7, the court noted that although the products which allegedly infringed copyright were marketed and sold nationally, the centre of gravity for the activity is the place where the infringing party designed and manufactured the product.  On factor 8, the court noted that the plaintiff's choice of forum should be accorded substantial weight, especially when the plaintiff is an individual, resident in the forum, and where the defendants are non-resident corporations.

The citation isBiggs v. Bass Pro Outdoor World LLC  [2005] U.S. Dist. LEXIS 14548 (Tex. Dist. Ct.)(July 20, 2005).

Summary by Arsen Krekovic.