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16 ¦ JUNE 15, 2020 NEWS

2nd Circuit Allows Copyright
Suit Against Wales Government

By Tom McParland

The U.S. Court of Appeals for the Second Circuit
on Monday allowed a copyright infringe-
ment case against the government of Wales
to proceed toward trial, finding that its use of rare
photographs to promote domestic tourism was not
protected by sovereign immunity.
A three-judge panel of the Manhattan-based
appeals court upheld a district judge’s ruling that
the government’s 2013 marketing campaign, fea-
turing images of the famous Welsh poet Dylan
Thomas, fell within the “commercial activity” ex-
ception to the Foreign Sovereign Immunities Act,
which generally limits the circumstances under Judge Gerard E. Lynch of the U.S. Court of Appeals for
which a foreign power can be sued in U.S. federal the Second Curcuit.

courts. his works “Do not go gentle into that good night”
The panel held that while the Welsh government’s and “A Child’s Christmas in Wales.”
actions advanced the “legitimate” sovereign purpose According to court documents, the Welsh gov-
of enhancing the country’s image and the prosperity ernment included the photos in a brochure for a
of its citizens, it did so in a way that was common walking tour of Greenwich Village in New York City,
to any number of private-sector businesses seeking where the poet had lived in the early 1950s.
profit from advertising. Wales, one of the countries that make up the Unit-
“Every aspect of the Welsh government’s con- ed Kingdom, moved to dismiss the case, arguing
duct that forms the basis of Pablo Star’s claim that the commercial activity exception to the FSIA
could have been done by a private party for com- did not apply because its marketing strategy was an
mercial gain,” Judge Gerard E. Lynch of the U.S. “inherently governmental” function and lacked the
Court of Appeals for the Second Circuit wrote in substantial contacts to the U.S. necessary to trigger
a 27-page opinion. the exception.
“Thus,” he said, “there is nothing quintessen- U.S. District Judge J. Paul Oetken of the Southern
tially governmental about using a photograph in a District of New York, however, rejected those argu-
printed brochure or on a web page or distributing ments last March, and the Welsh government filed
the photograph to newspaper outlets to advertise an interlocutory appeal with the Second Circuit.
or promote travel and tourism to a particular loca- On Monday, the panel agreed with the lower
tion.” court’s reasoning that Pablo Star’s alleged injuries in
Lynch was joined in the unanimous decision by the case where based “directly” on the government’s
Judges Rosemary S. Pooler and Michael H. Park. commercial conduct, which relied at least in part on
The lawsuit, filed in 2015 by copyright owner American media and printing firms to distribute its
Pablo Star Ltd., seeks lost licensing fees and dam- materials.
ages from the Welsh government’s use in marketing “We find that the Welsh government did engage
materials of two photos of Thomas, best known for in commercial activity in publicizing Wales-themed

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