Pablo Star Ltd. v. Welsh Government
170 F. Supp. 3d 597
S.D.N.Y.2016Background
- Plaintiffs Pablo Star Ltd. and Pablo Star Media Ltd., UK/Irish companies, own copyrights in two Dylan Thomas photographs and sued the Welsh Government and multiple U.S. publishers for copyright infringement.
- Plaintiffs allege Visit Wales (a Welsh Government tourism arm) posted the photos on its website and provided copies to U.S. publishers, who published them.
- Defendants moved to dismiss on multiple grounds: improper service under the FSIA, improper venue, lack of personal jurisdiction over several publisher defendants, and (for the Welsh Government) foreign sovereign immunity.
- Court declined to decide FSIA immunity because independent procedural defects warranted dismissal.
- The Court found FSIA service (28 U.S.C. §1608) was not properly effected, venue in S.D.N.Y. was improper as to the Welsh Government, and New York long-arm jurisdiction did not extend to several out-of-state publisher defendants.
- After dismissals, only Tribune Content Agency remained; Plaintiffs’ preliminary injunction motion against defendants was denied for lack of demonstrated irreparable harm as to Tribune.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service on Welsh Government under FSIA §1608 | Parties had a “special arrangement” via pre-suit counsel communications and also served U.K. Foreign Office under §1608(a)(3) | FSIA requires strict sequential compliance: must show a special arrangement or attempt Hague service (§1608(a)(1)-(2)) before §1608(a)(3) | No special arrangement shown; plaintiffs failed to exhaust Hague Convention route; service improper — claims vs. Welsh Government dismissed |
| Personal jurisdiction over publisher defendants (CPLR §302 / Due Process) | Online posting accessible in NY caused market harm; New York is situs of injury because lost licensing opportunity in NY market | Plaintiffs are foreign entities and did not show direct New York-based injury; internet accessibility alone is insufficient to establish CPLR §302(a)(3) long-arm | Court found no showing of New York injury for non-resident copyright owners; dismissed Miami Herald, Richmond Times-Dispatch, Treasure Coast, E.W. Scripps, Journal Media Group, Pittsburgh Post-Gazette for lack of personal jurisdiction (Tribune Content Agency not dismissed) |
| Venue as to Welsh Government (28 U.S.C. §1391(f)) | A substantial part of events occurred in S.D.N.Y.; Welsh Government does business here | Relevant acts (website creation/hosting, use) occurred abroad; §1391(f)(3) does not make a political subdivision automatically an "agency or instrumentality" licensed/doing business here | Venue improper under §1391(f); claims vs. Welsh Government dismissed |
| Preliminary injunction against Tribune Content Agency | Injunctive relief needed to stop ongoing infringement and impound materials | Plaintiffs did not show irreparable harm or ongoing use by Tribune | Denied: Plaintiffs failed to demonstrate irreparable harm or that Tribune continues to use the Photos |
Key Cases Cited
- Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131 (2d Cir. 2012) (FSIA supplies sole basis for jurisdiction over foreign states in U.S. courts)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (U.S. 1989) (FSIA governs immunity of foreign states)
- Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714 (2d Cir. 2013) (courts may dismiss on personal jurisdiction grounds without resolving FSIA immunity)
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (U.S. 2007) (trial courts have discretion to decide threshold issues other than subject-matter jurisdiction)
- Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (U.S. 1999) (permissible to address personal jurisdiction before subject-matter jurisdiction in appropriate circumstances)
- Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) (§1608(a) service requires strict adherence)
- Penguin Group (USA) Inc. v. Am. Buddha, 640 F.3d 497 (2d Cir. 2011) (online copyright owner located in forum suffers in-state injury when its work is uploaded; but limits on situs of injury where owner is not domiciled there)
- Troma Entertainment, Inc. v. Centennial Pictures Inc., 729 F.3d 215 (2d Cir. 2013) (plaintiff must allege non-speculative, direct New York-based injury for online infringement claims)