DECISION and ORDER JURISDICTION By order of Hon. Lawrence J. Vilardo dated June 22, 2022, this case was referred to the undersigned for all non-dispositive matters. The matter is presently before the court of Defendant TP Apparel, LLC’s motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3) and Defendant Redbubble, Inc.’s motion, pursuant to 28 U.S.C. §1404(a), for transfer of this action to the Northern District of California or, alternatively, to the Southern District of New York. Defendant TP Apparel also joins Defendant Redbubble’s motion to transfer.1 BACKGROUND and FACTS2 Defendant TP Apparel’s motion to dismiss (“Defendant TP Apparel motion”) (Dkt. 12), was filed July 30, 2022, together with the Declaration of Thomas Wood (Dkt. 12-1) (“Wood Declaration”) (“Defendant TP Apparel”); Defendant Redbubble’s motion for transfer (Dkt. 13), was filed August 1, 2022, together with the Declaration of James Toy, Dkt. 13-3, (“Toy Declaration”), along with Exhibits A — E (“Exh(s). ___ to Toy Declaration”). On September 9, 2022, Plaintiff filed Plaintiff’s Memorandum Of Law In Response And Opposition To Defendant TP Apparel LLC’s Motion To Dismiss And Defendant’s Joint Motion To Transfer (Dkt. 17) (“Plaintiff’s Memorandum”). On September 16, 2022, Defendant TP Apparel filed Defendant TP Apparel LLC’s Reply Memorandum Of Law In Support Of Motion For Improper Venue Pursuant to Fed.R.Civ.P. 12(b)(3) And 29 U.S.C. §1400(a) (Dkt. 18) (“Defendant TP Apparel’s Reply”); on the same date, Defendant Redbubble filed its Reply Memorandum Of Law In Support of Redbubble, Inc.’s Motion To Transfer (Dkt. 19) (“Defendant Redbubble’s Reply”). Oral argument was deemed unnecessary. Defendant TP Apparel, a wholly owned subsidiary of Defendant Redbubble, Inc., (“Redbubble”), is a Delaware corporation, with its principal place of business in the Southern District of New York. Defendant Redbubble is also a Delaware corporation with its place of business in the Northern District of California, and is a subsidiary of Redbubble Limited, an Australian public company. Both Defendants provide global on-line marketplaces or platforms which enable artists of creative works, including photographs, to facilitate sales of their respective works or products to customers world-wide. In this case, the Accused Product sold on Defendant TP Apparel’s platform is alleged to be stickers portraying an iconic photograph of Mr. Fred Rogers and officer Francois Clemmons, a character in Mr. Rogers’s famous television show (“the Rogers photograph”), dipping their feet in a pool of water (“the stickers”), for which photograph Plaintiff alleges he is a copyright owner. Using third-party manufacturers or “fulfillers,” which are connected to the artists through the Defendants’ platforms, sellers are able to have their creative works imprinted on everyday products such as apparel, stationary, stickers, housewares, bags and wall art, which items are also provided by fulfillers for the stickers. The fulfiller for the stickers in this case is located in Iowa. Defendants’ platforms also enable such sellers to connect with the third-party fulfillers who print and package the imprinted products as purchased by a customer that are then picked up by third-party shippers who in turn deliver finished products to the sellers’ on-line customers. The Defendants’ platforms also provide sellers with access to third-party payment processors who collect the sale price for the product as payments to respective sellers. The entire process, according to Defendants, is directed by the seller’s interaction with an intended customer who has accessed Defendants’ platforms and the respective fulfillers or manufacturers and delivery companies. In this case, the seller, located in Vietnam, made two sales of the stickers using TP Apparel’s platform (known as the Tee Public platform) for a total sale price of $4.50, one sale to Plaintiff, who resides in Pittsburgh, Pennsylvania, and one sale to Plaintiff’s counsel, in this district, at less than $3.00. According to Defendants, Defendants do not design or upload the designs of the Accused Products, review or approve the content offered for sale by sellers, or the content provided by users prior to upload. Nor do Defendants manufacture or deliver any Accused Products. Plaintiff alleges Redbubble has reproduced the Rogers photograph on clothing, accessories and home goods through more extensive marketing and sales of the Accused Products involving 15 products featuring the photographs on Redbubble’s website, made by different sellers to customers including Plaintiff. Plaintiff specifically alleges Redbubble maintained 150 listings of various products using Plaintiff’s copyrighted photograph. See Complaint, Exh. D, Dkt. 5-4 at 2-10. Plaintiff contends that contrary to Defendants’ assertions of neutrality with respect to the use by Sellers of Defendants’ platforms to sell the Accused Products, Defendants were directly involved in the sales process for the Accused Products using Defendants’ platforms and that Defendants are therefore guilty of direct, vicarious, and contributory infringement of Plaintiff’s copyright. According to Redbubble, of the ten third-party sellers with the most sales of Accused Products, four are located in California, and none are located in New York including in this district. Three of the fulfillers of Accused Products sold on Redbubble’s platform are located in California including in the Northern District. Defendants also assert that the Los Angeles Times and a film production company, Tremolo Productions, may be the true owners of the photograph’s copyright, and both are headquartered in the Northern District of California. Redbubble’s platform was designed and developed by Redbubble personnel employed in the San Francisco area and Australia as well as any Redbubble policies affecting the operation of the platform. Thus, any infringing conduct Plaintiff alleges would have occurred in the San Francisco Bay Area, the State of Washington, and Australia, but not in this district. Similarly, all documents related to Redbubble’s platform, including potential infringement of Plaintiff’s copyright, were created and maintained in the San Francisco Bay area. Redbubble maintains a proactive policing activity for the purpose of assuring copyright compliance. Five key witnesses for both Defendants are located in California. DISCUSSION TP Apparel’s Motion to Dismiss Although, as noted, Background and Facts, supra, at 2, Defendant TP Apparel moves to dismiss for lack of proper venue as required in this action for copyright infringement by 28 U.S.C. §1400(a), a dispositive request under 28 U.S.C. §636(b)(1)(B) and (C), Judge Vilardo’s referral order limits the undersigned’s authority to non-dispositive matters, see Dkt. 7, which includes Defendant Redbubble’s motion for transfer pursuant to 28 U.S.C. §1404(a) (“§1404(a)”), a non-dispositive matter as well as Defendant TP Apparel’s joinder in such motion. See Dkt. 12 at 1, and Dkt. 1-2 at 11. Accordingly, the court is unable to address Defendant TP Apparel’s motion to dismiss; however, the court will address Defendant TP Apparel’s alternative request to transfer by its joinder in Defendant Redbubble’s motion for transfer pursuant to §1404(a) as a non-dispositive matter. Defendant TP Apparel has consented to the jurisdiction and venue in the Northern District of California. Dkt. 12-2 at 8 n. 2. Defendant Redbubble’s Motion to Transfer Under §1404(a), court first consider whether the action could have been brought in the transferee district. Moog, Inc. v. Newport Aeronautical, Inc., 2016 WL 3444238 at *2 (W.D.N.Y. June 23, 2016). If the court finds this factor supports transfer the court then considers a variety of factors including (1) the plaintiff’s choice of forum; (2) the convenience of the witnesses; (3) the location of relevant documents and relative ease of access to sources of proof; (4) the convenience of parties; (5) the locus of operative facts; (6) the availability of process to compel the attendance of unwilling witnesses; (7) the relative means of the parties; (8) judicial economy; (9) the forum’s familiarity with applicable law; and (10) the interest of justice. Moog, Inc., 2016 WL 3444238 at *3. “No one factor is determinative, nor is there a ‘rigid formula for balancing these factors.’” Id. (quoting Citigroup, Inc. v. City Holding Co., 97 F.Supp.2d 549, 561 (S.D.N.Y. 2000)). In conducting this balancing test, the court enjoys “‘broad discretion’” involving “‘notions of convenience and fairness on a case-by-case basis.’” Moog, Inc., 2016 WL 3444238 at *3 (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988))). The burden is on the movant to show transfer is warranted and courts are required to give deference to a plaintiff’s choice of forum. Id. (citing cases). The court first considers whether this action could have been brought in the Northern District of California as Defendants assert. As to TP Apparel, although the Complaint does not indicate whether TP Apparel has relevant contacts within the Northern District of California, yet Plaintiff alleges TP Apparel’s liability for contributory copyright infringement results exclusively “from its ownership and control by Redbubble,” see Dkt. 5 94; see also Toy Declaration
