378 F. Supp. 3d 300
S.D. Ill.2019Background
- Plaintiffs Pablo Star Ltd. and Pablo Star Media Ltd. own copyrights in two photographs of Dylan Thomas and allege the Welsh Government used them without authorization in tourism promotional materials aimed at New York residents.
- Plaintiffs filed a Second Amended Complaint after the court previously dismissed claims for improper service and venue; the court granted leave to replead, finding plausible allegations that the Welsh Government took significant actions in New York material to the alleged infringements.
- The Welsh Government moved to dismiss under Rule 12(b)(1), asserting foreign sovereign immunity under the Foreign Sovereign Immunities Act (FSIA).
- Plaintiffs rely primarily on the FSIA commercial-activity exception, supported by exhibits (e.g., a New York walking-tour map and a Visit Wales webpage) suggesting materials were developed or distributable from a Welsh Government office in New York and published in U.S. outlets.
- The Welsh Government submitted affidavits (including from its U.S. tourism official) denying that the relevant activities were performed in the U.S. or for profit; the court found those affidavits did not rebut Plaintiffs’ documentary evidence that the New York office participated in development and distribution.
- The court denied the motion to dismiss, holding Plaintiffs met their burden to invoke the FSIA commercial-activity exception and the Welsh Government failed to rebut it by a preponderance of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Welsh Government is immune under FSIA or the commercial-activity exception applies | Plaintiffs: alleged unauthorized copying/distribution in promotion (maps, brochures, exhibitions) was commercial activity carried on in the U.S.; exhibits show development/distribution from New York | Welsh Government: activities are sovereign (promotional, non-profit) and conducted from Wales; therefore immune | Held: Commercial-activity exception applies; Plaintiffs produced evidence of substantial U.S. contacts and defendant failed to rebut by a preponderance |
| Whether claim is "based upon" commercial activity for FSIA purposes | Plaintiffs: the gravamen is unauthorized copying/distribution tied to promotional commercial materials | Welsh Government: copying served sovereign aims, not commercial activity | Held: The court looks to the nature of the acts (copying/distribution) not motive; acts are the sort private parties perform, so claim is based on commercial activity |
| International comity (dismissal on comity grounds) | N/A (Plaintiffs oppose) | Welsh Government: prior Irish judgment and comity warrant dismissal | Held: Rejected — Welsh Government failed to carry burden to show comity appropriate or that prior foreign judgment bars U.S. suit |
| Miscellaneous defenses: plaintiff dissolution and Berne Convention claims | Plaintiffs: one surviving plaintiff (Pablo Star Ltd.) retains standing; Berne allegations used only for FSIA expropriation theory | Welsh Government: Pablo Star Media Ltd. dissolved; move to dismiss Berne claims | Held: Court declines to address belated dissolution evidence now (one plaintiff remains); Berne-Convention dismissal denied as moot because Plaintiffs do not assert separate Berne causes of action |
Key Cases Cited
- Kensington Int'l Ltd. v. Itoua, 505 F.3d 147 (2d Cir.) (FSIA is sole jurisdictional source for suits against foreign states)
- Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek, 600 F.3d 171 (2d Cir.) (plaintiff bears burden to show FSIA exception applies once defendant prima facie shows foreign sovereign status)
- Swarna v. Al-Awadi, 622 F.3d 123 (2d Cir.) (commercial-character inquiry focuses on nature of conduct, not purpose)
- Saudi Arabia v. Nelson, 507 U.S. 349 (U.S. 1993) (restrictive theory: commercial activity = acts a private party could perform)
- Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (U.S. 1992) (commercial-activity framework and restrictive theory background)
- OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (U.S. 2015) ("based upon" analysis requires identifying particular conduct forming gravamen)
- Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., 137 S. Ct. 1312 (U.S. 2017) (courts should resolve FSIA factual disputes early)
- Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277 (S.D.N.Y.) (copyright defendants' promotional sales/publishing found commercial activity)
- Garb v. Republic of Poland, 440 F.3d 579 (2d Cir.) (degree-of-closeness test for "based upon" commercial activity)