OPINION AND ORDER
Joe Mantello sues Michael Hall and Caldwell Theatre Company for false representation in violation of the Lanham Act, 15 U.S.C. § 1125(a), copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq., “reverse passing off” in violation of plaintiffs common law rights, and unjust enrichment. Defendants move to dismiss on various grounds including lack of personal jurisdiction. For the reasons stated below, defendants’ motion to dismiss for lack of personal jurisdiction is granted. The other grounds accordingly need not be considered. .
I.
Because a motion to dismiss based on lack of pеrsonal jurisdiction is “inherently a issues outside of the pleadings ... all pertinent documentation submitted by the parties may be considered in deciding the motion.”
Pilotes, Inc. v. Pilotes Inst., Inc.,
Plaintiff is a stage director and a citizen of New York. (Compl. ¶ 3) Caldwell Theatre is a regional theater and not-for-profit corporation located in Boca Raton, Florida. (6/6/96 Hall Aff. ¶¶2, 3, 5) Michael Hall is Cаldwell’s president, chief executive officer and artistic director, and a citizen of Florida. (Id. ¶ 1)
In 1994, plaintiff was employed by the Manhattan Theatre Club, located in New York, to direct a play written by Terrence McNally and entitled “Love! Valour! Compassion!” (“the Play”). (Compl. ¶ 6) The Play ran at the Manhattan Theatre Club until February 1995 when it moved to the Walker Kerr Theatre' in New York City. (Id.) • The Play received “favorable reviews” and acclaim and won several awards, including a Tony. Plaintiff personally won the Outer Critics Circle and the OBIE awards for his direction as wеll as the Joe A Callo-way award. (Id. ¶ 8)
Plaintiff is ■ a member of the Society of Stage Directors & Choreographers (“SSDC”) which has entered collective bargaining agreements with Leagues of off-Broadway and Broadway producers. (Id. ¶ 3; Mantello Aff. ¶3; 7/24/96 Shechtman Aff. ¶ 2) In connection with the off-Broadway production of the Play at the Manhattan Theatre, and the Broadway production at the Walker Kerr Theatre, plaintiff entered into contracts which incorporated those collective bargaining agreements. (7/24/96 Shechtman Aff., Ex. B, C) Each collective bargaining agreement included a clause that granted to the director all property rights in and to the direction of the Play. Although the parties *96 dispute the scope of that grant of rights, that dispute need not be resolved to decide this motion. (Id. ¶¶ 4-5)
After plaintiffs successful production of the Play, defendants presented the Play, directed by Hall, at defendant Caldwell’s theater in Boca Raton over a seven-week period from February 11, 1996 through March 31, 1996. (6/6/96 Hah Aff. ¶ 7) Defendants negotiated with McNally’s agent and obtained a license to produce the Play from Dramatists Play Service, Inc., a New York сompany which apparently licenses the rights to produce plays. (6/6/96 Hall Aff., ¶ 9, Ex. A)
Plaintiff claims that Hall and Caldwell, in their production of the Play, intentionally recreated his “unique direction and staging” including “the replication of the stage movement, design, lighting and sound.” (Compl. ¶ 12) Plaintiff alleges that Hall and his collaborators attended the New York production of the Play and took notes to help copy plaintiff’s staging, that defendants obtained literature describing the New York production, that Hall cast actors who had seen the New York production tо obtain information about it, and that Hall instructed the designers of his production to attend the New York production to obtain information. (Compl. ¶11)
Plaintiff learned about the Caldwell production when a cast member from his production called him from Florida in February or March 1996. (Mantello Aff. ¶ 6) Plaintiff then flew to Florida on March 3, 1996 and saw the Caldwell production. (Id.) Plaintiff describes specific scenes in the Caldwell production which he claims duplicated his stage directions and conceptions. See (Mantello Aff. ¶¶ 8-11)
Plaintiff filed suit on April 10, 1996. Defendant now moves to dismiss for lack of рersonal jurisdiction, for improper venue, for transfer under the doctrine of forum non conveniens, for lack of subject matter jurisdiction because plaintiff lacks standing, for failure to state a claim upon which relief can be granted, and finally for a more definite statement pursuant to Fed.R.Civ.P. 12(e).
II.
Defendants move first to dismiss based on lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). In a diversity case, or a ease arising under federal law which does not provide for service of process on a party outside the state, personal jurisdiction is based,on the law of the forum state.
See e.g. Omni Capital Int'l. v. Rudolf Wolff & Co.,
A. CPLR § 301—Doing Business
Plaintiff argues first that defendants are subject to the jurisdiction of this court pursuant to § 301 of the New York Civil Practice Law and Rules (“CPLR”). N.Y.C.P.L.R. 301 (McKinney 1990). CPLR § 301, confers on New York courts general personal jurisdiction over any non-resident or foreign corporation “engaged in such a continuous and systematic course of ‘doing business’ here as to warrant a finding of its presence in this jurisdiction.”
McGowan v. Smith,
The test to determine whether a corporation or individual is subject to jurisdiction pursuant to § 801 has been called a “simple and pragmatic one ... which is necessarily fact sensitive because each ease is dependent on its own particular circumstances.”
Landoil,
Plaintiff asserts that “[i]t is virtually impossible to be legitimately involved in the professional theater business and not do regular, consistent and purposeful business with the New York theater community” and “by the very nature of their business, Defendants systematically conduct business in and with the New York theater community.” (PI. Mem. at 26, 27). Plaintiff relies on defendants’ following alleged business dealings in New York to support § 301 jurisdiction: 1) Hall regularly comes to New York to see plays and decide which ones Caldwell wants to produce, and to meet with members of the professional theater community; 2) defendants regularly negotiate and execute licenses to produce plays from licensing services and agents in New York, and regularly makе payments to those agencies; 3) Caldwell is a member of the League of Resident Theatres (“LORT”), a New York based organization of regional theaters which negotiates on behalf of regional theaters with various unions, including Actors Equity Association, United Scenic Artists and the Society of Stage Directors and Choreographers (7/9/96 Shecht-man Aff. ¶ 6); 4) pursuant to the agreements entered into by LORT, grievances and arbi-trations are conducted in New York and Caldwell contributes money to the actors unions’ health and pension funds; 5) Caldwell regularly advertises for actors in New York and employs a New York casting agent; and 6) Caldwell regularly solicits contributions and ticket subscriptions from New York foundations, organizations and individuals. (Def.Mem. at 26-27)
Plaintiff does not assert that defendants show the traditional indicia of doing business in New York — an office, solicitation, property or employees in Néw York. In a sworn affidavit, Hall states that neither he nor Caldwell solicits business or advertises in New York or has an office, mailing address, agent or telephone line in New York. (6/6/96 Hall Aff. ¶ 3) Further, Hall asserts that “all negotiations, discussions and corrеspondence in connection with Caldwell’s association with [LORT] takes place from Caldwell’s office in Florida” and Caldwell executes an individual contract with each person employed for a theatrical performance. (Id. ¶ 8) Hall claims also that “Caldwell does not and has not regularly solicited support or contributions in New York” and does not “regularly communicate with New York residents.” (Id. ¶ 4)
Most of the cases in which courts base jurisdiction over foreign corporations on CPLR § 301, feature one or more of the traditional indicia of doing business. However, in
Erving v. The Virginia Squires Basketball Club,
the Court held that the defendant was subject to jurisdiction pursuant to § 301 based on: a) the defendant’s connections with the American Basketball Association which was headquartered in New York; b) defendant’s regular and continual visits to New York “for the business purpose of playing professional games for profit”; and e) defendant’s “dealings with New York business concerns ... in furtherance of the business purpose in New York.”
Here, Caldwell’s business is the presentation of plays. Plaintiff has not alleged that defendant presented the Play or any other play in New York. Indeed, plaintiff hаs alleged, and defendants have not denied, only three systematic and ongoing contacts defendants have with New York: that Caldwell regularly enters into licensing agreements with New York entities or individuals for the rights to produce plays, that defendants regularly hire New York actors for their productions and deal with their New York-based unions, and that Caldwell is a member of LORT and participates in its activities. Plaintiff also alleges that Hall regularly travels to New York to see plays.
Those activities do not constitute “doing business.” Hall’s visits to New York to review current thеater, even if for the purpose of determining which plays Caldwell should produce, is not “doing business.” Hiring New York actors for productions in Florida and obtaining licenses is not “doing business.” Through these activities, defendants, in essence, merely secure the goods and services they need—plays, actors and licenses— to do their business in Florida,
i.e.,
produce plays.
See Agency Rent A Car System, Inc. v. Grand Rent A Car Corp.,
Also, defendants’ associаtion with LORT is not “doing business” such that defendants are subject to the general personal jurisdiction of New York courts. “The mere existence of a business relationship with entities within the forum state is insufficient to establish presence.”
Insurance Co. of Penn. v. Centaur Ins. Co.,
Here, plaintiff does not claim that either Hall or Caldwell participates in any way in the business or affairs of LORT, other than by being a member theater and, presumably, incorporating into Caldwell’s employment contracts the agreements LORT enters into with the actors unions.
Cf. Erving,
Finally, plaintiff admits that his argument for finding defendants subject to the general personal jurisdiction of New York courts would apply as well to nearly all of the regional theaters in the nation that obtain licenses to produce plays from New York entities, hire New York actors, review Broadway and off-Broadway productions and are members of LORT: “[t]he reality is that most of the LORT theaters around the country regularly do business in New York.” (7/9/96 Sheehtman Aff. ¶ 8) Although plaintiff embraces that extreme result, these defendants are unlike basketball teams, who actually engage in their business when they travel into New York and play a game. Defendants and others similarly situated, who lack the traditional indicia of doing business, do not subject themselves for all purposes to the jurisdiction of New York courts merely because they travel to New York to “exploit the synergy between New York City’s unique theatrical resources and the wоrk of regional theaters.” (Id.)
B. CPLR 302(a)—New York’s Long-Arm Statute
Plaintiff also argues that defendants are subject to the personal jurisdiction of this court pursuant to New York’s long-arm statute, CPLR § 302(a). In particular, plaintiff argues that defendants satisfy either § 302(a)(1) or § 302(a)(2).
CPLR § 302(a)(1) permits a court to exercise jurisdiction over a non-domieiliary who, in person or through an agent “transacts any business within the state....” N.Y.C.P.L.R. 302(a)(1). To justify the exertion of personal jurisdiction over a defendant based on § 302(a)(1) two conditions must be met: “first, the nondomiciliary must ‘transact business’ within the state; second, the claim against the nondomiciliary must arise out of that business activity.”
CutCo Inds.,
Plaintiff has alleged that the following contacts with New York constitute transaction of business and demonstrate that defendants availed themselves of New York’s laws: 1) Hall’s trips to New York to *100 see the Play and determine whether Caldwell should produce it; 2) defendants’ negotiations with Dramatists Play Service to obtain the license to produce the play and defendants’ sending royalty payments in connection with that license into New York; 3) defendants’ auditions in New York to cast actors; 4) defendants’ filing the actors’ contracts in New York with Actors Equity Association; 5) defendants’ meeting in New York with backstage personnel from the New York production to obtain technical information; and finally, 6) defendants’ payments to the actors union’s benefit funds in New York. (Pl.Mem. at 18-20) In reply, Hall claims that all negotiations to obtain the rights to the Play were conducted from Florida and not in New York, and that no one from Caldwell met with backstage personnel or inspected the set of the New York production of the play. (6/6/96 Hall Aff. ¶ 8; 6/17/96 Hall Aff. ¶ 7)
Of the above contacts, only defendants’ license with Dramatist Play Service and its employment contracts and connections with New York actors and their unions arguably constitute transaction of business in New York. Transaction of business does not include viewing a Broadway production which is open to the public, or meeting with technical people to obtain information about the Play. Those actions may very well have been blameworthy in thе sense that defendants were attending the Play not merely to enjoy it but to copy its presentation so they could produce their allegedly infringing play. However, simply because conduct may be blameworthy does not make it transaction of business.
Even if defendants transacted business with the actors, their unions and Dramatist Play Service, they are not subject to personal jurisdiction in New York courts pursuant to § 302(a)(1) unless plaintiffs claims for relief arise out of that business.
See, e.g., Agency Rent A Car,
Here, plaintiff has claimed that defendants misrepresented the source of the staging and direction of the Play in violation of the Lanham Act and plaintiffs common law rights, that defendant infringed plaintiffs copyright 1 , and that defendant was unjustly enriched. Plaintiffs claims all sound in tort and do not arise out of defendants’ transaction of business in New York. For a tort claim to arise out of transaction of business in New York, the connection between the transaction and the claim must be direct. Here, plaintiff claims that defendants intentionally copied his unique staging of the Play. The business which defendants transacted in New York included holding auditions in New York and hiring New York actors whose contracts were filed with unions in New York, sending benefits payments to the actors unions in New York, entering into a licensing agreement with Dramatists Play Service, and sending royalty payments to the Play Service. None of these activities resulted directly in an injury to plaintiff. The torts alleged here, all stemming from the wrongful misappropriation of plaintiffs stage directiоns, do not arise out of defendants’ hiring of New York actors and dealing with New York unions, or defendants’ agreement with Dramatist Play Service. Each of these alleged transactions was with a third party and not with plaintiff. Plaintiff has not made a prima facie showing that his claims arise out of defendants’ transaction of business in New York. Therefore, CPLR § 302(a)(1) does not confer jurisdiction here.
Plaintiff argues next that New York courts may exercise personal jurisdiction over defendants pursuant to CPLR § 302(a)(2) *101 which grants jurisdiction over a nondomicili-ary who “commits a tortious aсt within the state....” N.Y.C.P.L.R. 301(a)(2). 2
To satisfy § 302(a)(2), in cases involving copyright infringement and violations of the Lanham Act, the offering, display or sale of the allegedly infringing product must occur in New York. That is to say, the conduct that occurs in New York must be the infringer’s misrepresentation of the source of the product or his unauthorized presentation of the product.
See, e.g., Imagineering, Inc. v. Van Klassens, Inc.,
Here, plaintiff claims that defendants passed off their infringing play in New York by soliciting ticket sales, subscriptions and contributions from New York residents. Plaintiff claims first that defendants obtained contributions from Chemical Bank and the IBM corporation, two New York-based organizations, and to solicit these contributions, “undoubtedly ... sent promotional material and other information to New York in which Defendants passed off Plaintiffs work as their own.” (Pl.Mem. at 22) (emphasis added) Plaintiff bases that claim on the program for the Caldwell production of the Play, which lists Chemical Bank and IBM as major contributors. (7/9/96 Shechtman Aff. ¶7). Defendаnts state that they obtained contributions in the form of used computer equipment and donations from IBM and Chemical Bank, but that those contributions were solicited from IBM’s and Chemical Bank’s local offices in Boca Raton, Florida. (7/17/96 Hall Aff. ¶ 4) Defendants’ explanation thoroughly refutes plaintiffs allegation; other than that bare allegation, plaintiff has offered no evidence that defendants solicited foundations or companies in New York or that defendants sent promotional material into New York. Plaintiff merely surmises both that defendants solicitеd Chemical Bank and IBM in New York, and that in doing so defendants sent to New York promotional material in which they passed off the Play.
*102 Plaintiff argues next that “based on the dual residence of many members of Defendants’ audience [Florida and New York], Defendants have likely solicited ticket sales or subscriptions for the infringing play in New York.” (Pl.Mem. at 22) (emphasis added) Plaintiffs argument, 'that defendants “must have” solicited ticket sales or subscriptions to the Play, is not factually based or intuitively apparent. Rather, plaintiff is merely making an inference from the fact that mаny residents of Florida also are residents of New York that defendants must have solicited business in New York. In two sworn affidavits, Hall states that “the Caldwell production of the Play was promoted, marketed and advertised exclusively in the State of Florida” (6/6/96 Hall Aff. ¶ 22), and “Caldwell does not and has not regularly solicited support or contributions in New York from New York residents.” (7/17/96 Hall Aff. ¶ 4)
Although on a motion to dismiss Í must resolve all doubts and construe all documents in favor of plaintiff non-movant,
CutCo Inds.,
Finally, Plaintiffs allegation that defendants came to New York to spy on his production of the Play,
i.e.,
to view the Play and take notes on the direction and staging may, as noted, constitute blameworthy behavior. However, those acts do not constitute the torts which plaintiff alleges defendants committed. Each tort plaintiff alleges—copyright infringement, unfair competition under the Lanham Act, and common law reverse passing off—requires the sale or the offering for sale of the allegedly infringing product dr service in New York. It is important to remember that “CPLR 302 does not extend jurisdiction as far as may be constitutionally permitted.”
Interface Biomedical Labs. Corp. v. Axiom Medical, Inc.,
* * *
For the reasons stated above, defendants’ motion to dismiss based on lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2) is grantеd. Defendants’ other motions need not be decided.
Notes
. There is some question whether plaintiff has filed for copyright protection such that he can institute a claim for infringement. 17 U.S.C. § 411 (1994). Plaintiff claims that on March 22, 1996, he sent an application for registration to the Registrar of Copyrights. (Compl. ¶21) In his affidavit dated July 17, 1996, Hall claims to have hired a copyright registration service to search for any filings by plaintiff with the Copyright Office and that as of July 17, 1996 it had found no filings by the plaintiff. (6/17/96 Hall Aff. ¶ 10, Ex. A) Because I find no personal jurisdiction over defendants, I need not consider whether plaintiff has satisfied § 411 such that he can maintain a claim for copyright infringement.
. Plaintiff has not claimed that defendants are subject to jurisdiction pursuant to § 302(a)(3) which permits jurisdiction over a defendant who commits a tort outside the state if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce....
N.Y.C.P.L.R. 302(a)(3) (McKinney 1990).