IP Law Daily, COPYRIGHT—E.D. Pa.: Lawsuit over Tullamore D.E.W. whiskey is narrowed, but will move forward, (Jul 29, 2026)

By Matthew Hersh, J.D.

One of the company’s U.S. affiliates, as well as several related ad agencies, remain subject to copyright infringement claims.

A songwriter's claim that three U.S. affiliates of a famous Irish whiskey maker used his work without his knowledge or consent could not proceed in a Pennsylvania court because there was no evidence that the court had jurisdiction over those companies, the U.S. District Court for the Eastern District of Pennsylvania found. But the lawsuit, which also rejected the songwriter's claims under the Digital Millennium Copyright Act (DMCA), will still proceed against one of the whiskey-maker's US affiliates as well as several ad agencies allegedly involved in the infringing ad campaign (Bradcliffe LLC v. William Grant & Sons, Inc., No. 2:25-cv-06511-WB (E.D. Pa. Jul. 22, 2026)).

The lawsuit was brought by Don McCloskey, a Philadelphia-based independent singer-songwriter who, at least according to his profile on Spotify, is a producer and performing artist “who blends elements of folk, rock, Americana, soul, electronica and pop into a sonic universe all his own.” The songwriter, who also claims a particular affinity for traditional Irish folk music, pitched a song to an advertising agency for potential use in a campaign for Irish whiskey brand Tullamore D.E.W. But the ad agency, Red Tettemer O’Connell + Partners, reported back that it had lost the Tullamore account and that the song would not be used.

This representation, the songwriter claims, was false—in fact, the ad agency and the whiskey maker allegedly wound up using the song in 2022 in a widespread radio, online, and other media campaign. The complaint that followed, brought formally in the name of McCloskey’s company McCloskey and Bradcliffe LLC, leveled copyright infringement claims against the ad company as well as the maker of the whiskey, William Grant & Sons. (The lawsuit also named two other ad agencies in the lawsuit, Quaker City Mercantile and ModOp, which allegedly collaborated in the Tullamore ad campaign.) The complaint also alleges that the ad companies and whiskey maker altered copyright management information in violation of the Digital Millennium Copyright Act. Finally, the complaint levels a single allegation of common law fraud against the ad agency with which the songwriter originally worked.

Several of the defendants moved to dismiss, leading to this opinion.

Personal jurisdiction. The court issued a mixed ruling on the question of personal jurisdiction. The first question it addressed was whether it had jurisdiction over ad agency ModOp, a nationwide advertising firm headquartered in Miami. Because the songwriter did not allege that the court had general jurisdiction over the ad agency, the question was whether the ad agency played a role in distributing the song (or any derivative of it), within Pennsylvania. Although the songwriter had not yet submitted evidence that the ad agency did so, his allegation was plausible. Thus, the court permitted jurisdictional discovery regarding the agency's Pennsylvania contacts.

But the outcome was different for the whiskey maker. The songwriter never managed to serve the Irish-based parent company nor any of its Irish affiliates. Instead, the songwriter served only four US-based subsidiaries, namely William Grant & Sons, Inc., William Grant & Sons Americas, LLC, William Grant & Sons USA Corp., and William Grant & Sons US Distillers LLC. Three of those US-based subsidiaries (Americas, USA Corp., and US Distillers) moved to dismiss for lack of personal jurisdiction, and the court granted the motion. None of the evidence that the songwriter came forward at this stage of the case implicated those three US companies, the court found. Moreover, because they were all sibling companies of one another, the court found, allegations of their mere “interconnectedness,” without more, could not support jurisdiction. Thus, only one William Grant defendant—US-based William Grant & Sons, Inc.—would remain in the case at this stage.

Statute of limitations. The court then turned from jurisdiction to other issues, beginning the statute of limitations. Red Tettemer, the agency that the songwriter originally worked with, claimed that by the time the songwriter filed his lawsuit in November 2025, three years had passed since the time that allegedly infringing campaign had begun. But the songwriter alleged that he did not discover the ad campaign until 2023, a contention plausible enough for the claim to get to the discovery phase. In any event, the court found, the songwriter also alleged that his work continued to be used in the ad campaign well into the limitations period, thus forming a series of continuing infringements that were themselves timely made.

DMCA. But although the copyright infringement claims would go forward, the DMCA claims would not. The songwriter claimed that the video form of the advertisements contained names such as “Tullamore D.E.W.,” “RTOP,” and “RTO+P” in connection with videos distributed through YouTube, Vimeo, Red Tettemer’s website, and ad industry website AdForum. But these references, the court found, “merely identify the advertising agency, brand, or source of the commercial as a whole; they do not purport to identify the author or owner of the underlying musical composition.” Indeed, the court noted, the materials themselves also identified the songwriter specifically by name as the author of the music. “Such an attribution is inconsistent with Bradcliffe’s theory that Red Tettemer falsely represented itself or Tullamore D.E.W. as the author of the music,” the court found.

Contributory infringement. The court also rejected the ad agency’s claim that it could not be held responsible for any infringement on the part of William Grant or the other ad agencies. The court disagreed. Under Ninth Circuit caselaw, as adopted by another court in the Eastern District of Pennsylvania, the court found, a defendant may be contributorily liable where it “knowingly takes steps that are substantially certain to result in direct infringement.” (The court, perhaps notably, did not acknowledge the more recent—and stricter—standard set by the Supreme Court earlier this year in Cox Communications, Inc. v. Sony Music Entertainment.) Here, the court noted, the complaint alleged that the agency “was an active participant in producing the infringing Unauthorized Red Tettemer/William Grant Derivative Works and then oversaw whether and how those infringing commercials were publicly distributed, performed, and exploited by Defendant William Grant.” That was enough, the court found, to make the agency contributorily liable.

Fraud. Finally, the court also found that the songwriter could pursue his claim of common law fraud against the ad agency. Under Pennsylvania law, the court noted, a promise to perform a future act generally does not support a fraud claim unless the speaker, at the time the promise was made, had no intention of performing it. But here, the court noted, the songwriter’s theory was not “merely that Red Tettemer later failed to keep a promise about future use” but rather that Red Tettemer’s representations were false at the time it made them because it “had already entered into a contract with Defendant William Grant in which it purported to transfer the rights to the Bradcliffe Musical Works and any derivative thereof to Defendant William Grant, without Plaintiffs’ consent or authorization.”

The Case is No. 2:25-cv-06511-WB.

Judge: Beetlestone, W.

Attorneys: Alyssa Marie Bruno (A. Bruno Law LLP) for Bradcliffe LLC. Armin Ghiam (Hunton Andrews Kurth LLP) for William Grant & Sons, Inc.

Companies: Bradcliffe LLC; William Grant & Sons, Inc.

Cases: Copyright PennsylvaniaNews