PABLO STAR LTD., PABLO STAR MEDIA LTD., Plaintiffs-Appellees, v. THE WELSH GOVERNMENT, Defendant-Appellant, GRACENOTE, DBA Tribune Media Service, PITTSBURGH POST-GAZETTE, E.W. SCRIPPS, CO., COLORADO NEWS FEED, TRAVEL SQUIRE, RICHMOND TIMES DISPATCH, MIAMI HERALD MEDIA CO., VISIT WALES, TRIBUNE CONTENT AGENCY, LLC, JOURNAL MEDIA GROUP, INC., TREASURE COAST NEWSPAPERS, JOHN DOES 1-10, Defendants.
Docket No. 19-1262-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2019 Argued: February 5, 2020 Decided: June 8, 2020
POOLER, LYNCH, and PARK, Circuit Judges.
Defendant-Appellant the Welsh Government appeals the denial by the United States District Court for the Southern District of New York (Oetken, J.) of its motion to dismiss on the ground of sovereign immunity. It argues that the commercial-activity exception of the Foreign Sovereign Immunities Act does not apply to its conduct promoting Welsh culture and tourism in New York because the promotion of tourism is an inherently governmental activity and because its conduct did not have the requisite substantial contact with the United States to trigger the exception under the Act. We disagree, and accordingly AFFIRM the decision of the district court.
NATHANIEL KLEINMAN (Kevin McCulloch, on the brief), The McCulloch Law Firm, PLLC, New York, N.Y., for Plaintiffs-Appellees.
RICHARD J. OPARIL, Arnall Golden Gregory LLP, Washington, D.C., for Defendant-Appellant.
The Foreign Sovereign Immunities Act (“FSIA“) provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States,” subject to several enumerated exceptions.
The United States District Court for the Southern District of New York (J. Paul Oetken, J.) denied the Welsh Government‘s motion to dismiss on the ground of sovereign immunity, holding that the commercial-activity exception applies. The Welsh Government challenges the district court‘s conclusions on both prongs of the relevant exception. First, it argues that its promotion in the United States of tourism to Wales was not commercial, but rather governmental, in nature. Second, it asserts that, even if its conduct was commercial, it did not have the requisite substantial contact with the United States. As explained below, we find that the Welsh Government did engage in commercial activity in publicizing Wales-themed events in New York, and we further find that the Welsh Government‘s activity had substantial contact with the United States. We therefore AFFIRM the district court‘s denial of the Welsh Government‘s motion.
BACKGROUND
The facts relating to the jurisdictional issue of sovereign immunity are drawn from the record compiled by the district court on the Welsh Government‘s motion to dismiss, and are for the most part undisputed. The facts regarding the merits of the claims are drawn from the complaint and are taken as true, though we occasionally note instances in which the facts are in dispute.
Vernon Watkins took the two photographs. Upon Watkins‘s death in 1967, his widow, Gwen Watkins, inherited the copyrights in the photos. In August 2011, Gwen Watkins assigned the copyrights to Pablo Star. Pablo Star then registered the copyrights with the United States Copyright Office, and was issued certificates of registration for both works in 2012.2
The Welsh Government is a political subdivision of the United Kingdom. The devolved Welsh Government has authority to promote the well-being of Wales, including its culture, economic development, and tourism. See Government of Wales Act 2006, c. 32, §§ 60-61. Under its statutory authority pursuant to the Government of Wales Act, the Welsh Department of Economy, Skills and Natural Resources is charged with promoting tourism to Wales.
After its formation in 2006, the Welsh Government began using Dylan Thomas‘s likeness, including the “Just Married” and “Penard” photographs, to promote tourism to Wales. The allegedly infringing materials at issue in this case include a map and brochure entitled “Dylan Thomas Walking Tour of Greenwich Village, New York,” which displayed the “Just Married” photograph with a copyright notice beneath stating “Copyright Jeff Towns/Dylan‘s Bookstore.” The walking tour was a collaboration of the Welsh Government and the Thomas family and was run by New York Fun Tours, which charged $25 per ticket for the tour. The Welsh Government also had a page on its website, wales.com, entitled “Discovering the Welsh in America.” That page in turn contained a link to a PDF copy of a booklet called “Welsh in America 2010,” information about a display exhibition that could be borrowed from the Welsh Government in New York at no cost, and a link to New York Fun Tours’ web page regarding its Dylan Thomas walking tours, which would be held on Sundays starting on March 6, 2011. The “Welsh in America” web page featured the “Just Married” photograph with the “Copyright Jeff Towns” notation. All of this material was created before Pablo Star‘s copyright registration in “Just Married” and “Penard.”3
In 2013, the Welsh Government developed a new tourism strategy and published a three-year action plan. The strategy and action plan focused on domestic tourism, but also encouraged tourism from Germany, Ireland, the United States, and Canada. As part of its motion to dismiss, the Welsh Government proffered an affidavit from Rob Holt, the Welsh Government‘s Deputy Director of Tourism Development and Major Events, attesting that the strategy and action plan were developed in Wales and that the computer servers for the Welsh Government‘s work are maintained in the United Kingdom.
Pablo Star filed its initial complaint on February 18, 2015, alleging copyright infringement by the Welsh Government. After several years of procedural skirmishing not relevant here,4 the Welsh Government moved to dismiss Pablo Star‘s second amended complaint under Fed. R. Civ. P. 12(b)(1), asserting sovereign immunity under the FSIA. On March 29, 2019, the district court denied the motion to dismiss and ordered the Welsh Government to file an answer. Pablo Star Ltd., 378 F. Supp. 3d at 314. The Welsh Government timely filed this interlocutory appeal on April 29, 2019.5
DISCUSSION
I. The FSIA
The FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Anglo-Iberia Underwriting Mgmt. v. P.T. Jamsostek, 600 F.3d 171, 174-75 (2d Cir. 2010), quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). “Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).
A defendant seeking sovereign immunity bears the burden of establishing a
Once the defendant makes that showing, the burden shifts to the plaintiff to make an initial showing that an enumerated exception to sovereign immunity applies. Anglo-Iberia, 600 F.3d at 175. Determining whether that burden is met involves a review of the allegations in the complaint and any undisputed facts, and resolution by the district court of any disputed issues of fact. Id. The district court may look to evidence outside the pleadings and may hold an evidentiary hearing, if one is warranted, in determining facts relevant to jurisdiction. Id. Once the plaintiff has met its initial burden of production, the defendant bears the burden of proving, by a preponderance of the evidence, that the alleged exception does not apply. Id. In other words, the ultimate burden of persuasion remains on the party seeking sovereign immunity. Id.
II. The Commercial-Activity Exception
The FSIA‘s commercial-activity exception abrogates sovereign immunity in cases in which the action is:
based [i] upon a commercial activity carried on in the United States by the foreign state; or [ii] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [iii] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
The FSIA defines “commercial activity” as “either a regular course of commercial conduct or a particular commercial transaction or act.”
The district court concluded both that the acts of the Welsh Government on which the claims in this case are based constituted commercial activity and that that activity had substantial contact with the United States. The Welsh Government challenges both conclusions.
III. Analysis
A. The Welsh Government Engaged in Commercial Activity.
We begin by identifying the particular conduct on which Pablo Star‘s action is “based” under the FSIA. Nelson, 507 U.S. at 356. For purposes of the commercial-activity exception, the relevant “activity” on which the claims are based is the Welsh Government‘s use of the photographs in question in promoting
Whether an activity is deemed “commercial” under the FSIA depends on its “nature” rather than its “purpose,”
The Supreme Court has elaborated on that standard in two principal cases. In Republic of Argentina v. Weltover, Inc., the Supreme Court explained that in applying the nature-versus-purpose analysis, “the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in ‘trade and traffic or commerce.‘” 504 U.S. at 614 (internal citation omitted) (emphasis in original). The Weltover Court gave the example that “a foreign government‘s issuance of regulations limiting foreign currency exchange is a sovereign activity, because such authoritative control of commerce cannot be exercised by a private party; whereas a contract to buy army boots or even bullets is ‘commercial’ activity, [notwithstanding that the purchases are designed to support the sovereign function of national defense,] because private companies can similarly use sales contracts to acquire goods.” Id. at 614-15. Thus, in Weltover, the Argentine government‘s sale of bonds constituted commercial activity, because borrowing funds through the bond market is an activity regularly conducted by private companies as well as by governments, notwithstanding that the funds raised would be used to support sovereign governmental programs. Id. at 615-17.
In the same vein, the Court stated in Saudi Arabia v. Nelson that a foreign state engages in commercial activity “where it exercises only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns.” 507 U.S. at 360 (internal quotation marks omitted). Thus, in that case, the Kingdom of Saudi Arabia enjoyed immunity from a lawsuit alleging that the plaintiff was unlawfully detained and tortured in retaliation for reporting safety violations at the Saudi hospital where he worked. However reprehensible the conduct alleged, the exercise - including the abuse - of the police powers of detention and punishment are uniquely sovereign activities. Id. at 361.
This is a standard more easily stated than applied, however, and its application may sometimes depend on the level of generality at which the conduct is viewed. Separating the “nature” from the “purpose” of an activity may require a nuanced examination of the context of the acts involved. In this case, for example, the narrowest possible characterization of the challenged actions - printing and distributing copies of photographs, or “engaging in copyright infringement” - plainly describes “powers that can [ ] be exercised by private citizens, as distinct from [ ] powers peculiar to sovereigns.” Nelson, 507 U.S. at 360 (internal
On the other hand, a very broad characterization of the activity that forms the basis of the claim would tend to conflate the act with its purpose. Here, for example, the Welsh Government asserts that it was acting to promote Welsh culture and tourism pursuant to its statutory mandate under the Government of Wales Act 2006, and thus that it was acting as a sovereign government. That may be a reasonable way to describe the Welsh Government‘s actions here, but that description characterizes those actions in terms of their broad purposes as much as their “outward form.” Like the Argentine government in Weltover, the Welsh Government‘s actions here are not undertaken from “a profit motive,” but rather with the goal of enhancing the image of the country and the prosperity of its citizens - legitimate purposes for a sovereign to pursue.
Those, however, are the purposes or reasons for the Welsh Government‘s actions, and not what it did to accomplish its goals. The means by which it pursued its goals was the publication, on-line and in print, of what are essentially advertising materials. As Pablo Star argues, that is an activity that could be, and in fact regularly is, performed by private-sector businesses. The district court agreed, holding that “[t]he Welsh Government‘s use of these photos is an eminently familiar manifestation of the manner in which any number of private travel agents or guides have been alleged to have used another‘s copyrighted materials to supplement their own products or services.” Pablo Star, 378 F. Supp. 3d at 309-10.
We agree as well. Indeed, even if the broader characterization “promoting tourism” is used, that does not distinguish the activity from functions regularly undertaken by private entities. Airlines, travel agents, hotels, operators of theme parks, and sponsors of arts festivals, to name but a few, regularly endeavor to promote tourism to particular locations. Nor is that private activity always limited to the promotion of the particular entity‘s own goods or services. Airlines, travel agents, and hotels commonly promote the entertainment or cultural opportunities available in particular cities or countries, which they
In arguing that “promoting tourism” is inherently sovereign and non-commercial, the Welsh Government relies heavily on our decision in Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004). The plaintiff in Kato was a Japanese citizen employed by the Tokyo Metropolitan Government (“TMG“) in its New York office. She brought a sexual harassment suit against TMG and the Tokyo governor, alleging sex discrimination and retaliation in the course of her employment in violation of
TMG performed actions that were superficially similar to those typically undertaken by private parties. For example, TMG engaged in “product promotion for Japanese companies, general business development assistance, participation in trade shows on behalf of the companies to promote those companies’ products for sale, and leasing office space to those companies for their business development.” 360 F.3d at 111 (internal quotation marks omitted). However, this Court found that “[a]lthough a private Japanese business might engage in these activities on its own behalf-for example, by sending its representatives to trade shows in the United States to promote its products-such a business would not typically undertake the promotion of other Japanese businesses, or the promotion of Japanese business interests in general.” Id. at 112. Thus, “the fact that a government instrumentality like TMG is engaged in the promotion of commerce does not mean that the instrumentality is thereby engaged in commerce.” Id. (emphasis in original).
The Welsh Government seizes on the Court‘s language in Kato to argue that it too was performing quintessentially governmental functions. Specifically, it says that it was acting pursuant to its statutory authority granted by the government of the United Kingdom to promote the well-being of Wales, including by promoting economic development, tourism, and culture abroad.
The Welsh Government takes Kato‘s language out of its factual context, however. First, the Welsh Government here engaged in promotional activities “on its own behalf,” id. at 112, rather than on behalf of third parties. In addition, TMG‘s actions promoting Japanese business interests abroad were not the conduct on which Kato‘s action was “based.” Instead, Kato‘s claimed injury was based on TMG‘s alleged harassing and retaliatory conduct. That activity was a part of TMG‘s personnel practices. Our inquiry in Kato was thus directed to assessing whether the plaintiff was a bona fide public servant rather than toward deciding whether activities such as those of the Welsh Government here are properly characterized as “commercial.”
Nelson established the importance of a sufficient “nexus” between a defendant‘s conduct and the injuries alleged. 507 U.S. at 355. In Nelson, a Saudi government hospital recruited and hired Nelson as a monitoring systems
Similarly, in Kato, the plaintiff‘s alleged injuries were not based on TMG‘s promotion of Japanese business interests abroad but on TMG‘s alleged harassing and retaliatory conduct as an employer of civil servants. Indeed, the Kato Court based its decision in part on the fact that Kato was a civil servant and that the FSIA‘s legislative history identified employment of civil service personnel as an example of governmental activity. Kato, 360 F.3d at 111, citing H.R. Rep. No. 94-1487, at 16, reprinted in U.S.C.C.A.N. at 6615. Our statement that “an agency of a foreign government is not involved in ‘commercial activity’ under the FSIA when it provides general business development assistance,” 360 F.3d at 114, was thus in the context of determining whether the plaintiff was properly characterized as a civil servant. Because the promotion of a country‘s commercial activities is a legitimate function of government, she was.
Pablo Star‘s argument does not depend on any claim that the employees of the Welsh Government who engaged in the challenged activity here were part of a commercial, rather than governmental, operation. Here, unlike in Nelson and Kato, Pablo Star‘s alleged injuries are based directly on the Welsh Government‘s allegedly commercial conduct, specifically the unauthorized use of photographs in promotional websites and printed materials advertising tourism related to Wales. And, as the district court reasoned in its opinion below, private travel agents, publishers of guidebooks, and airline companies can and do use photographs to promote tourism to various destinations around the world. If any of those institutions had used Pablo Star‘s copyrighted photos to promote the Dylan Thomas Walking Tour of Greenwich Village (for which New York Fun Tours, apparently a for-profit enterprise, charged admission), it would have been a proper defendant in a copyright infringement action. Every aspect of the Welsh Government‘s conduct that forms the basis of Pablo Star‘s claim could have been done by a private party for commercial gain. Thus, unlike the exercise of state police power in Nelson, 507 U.S. at 361, there is nothing quintessentially governmental about using a photograph in a printed brochure or on a web page or distributing the photograph to newspaper outlets to advertise or promote travel and tourism to a particular location. The fact that this activity was done by a government body pursuant to its statutory authority in order to promote tourism, rather than to make a profit, goes to the activity‘s purpose rather than its “outward form.” Nelson, 507 U.S. at 361. See also Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277, 291 (S.D.N.Y. 2001) (“[W]hile the purpose of publishing the diary may have been governmental (disseminating information about Jordan and encouraging tourism), the nature of the activity (publishing and selling books) is clearly commercial.” (emphasis in original)). We therefore conclude that the activity on which Pablo Star‘s claims are based is commercial activity.
B. The Welsh Government‘s Conduct Had Substantial Contact with the United States.
Having found that the Welsh Government engaged in commercial activity, we move on to the second step of the inquiry: whether the commercial activity was carried on in the United States. To qualify, the commercial activity must have “substantial contact with the United States.”
Exactly what constitutes “substantial contact” for purposes of the FSIA is poorly defined. “Congress left it to the courts to define the contours of ‘substantial contact’ between a foreign state‘s commercial activity and the United States. However, it is clear that Congress intended a tighter nexus than the ‘minimum contacts’ standard for due process.” Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1019 (2d Cir. 1991) (internal citation omitted). In Shapiro, we concluded that Bolivia‘s issuance of promissory notes to a Delaware corporation doing business principally in New York City, which were then placed in escrow with a Washington, D.C. law firm, satisfied the “substantial contact” standard. Id. We stated that “[w]e know of no theory that would cause us to read the FSIA to allow a foreign state to issue bearer notes to an intermediary in the United States and then to deny that it was engaged in commercial activity as defined in the FSIA. The very presence of such highly transferable instruments, whether or not the initial holder successfully discounts them in the country, suffices to satisfy the ‘substantial contact’ requirement of the statute.” Id.
The district court below held that the substantial contact requirement was satisfied in this case because it found that the Welsh Government played an active role in the United States in the development and distribution in New York of promotional materials that included plaintiffs’ photographs, including by contracting with private businesses located in New York City to publish, print, display, and distribute the allegedly infringing materials. Pablo Star, 378 F. Supp. 3d at 313.
The Welsh Government argues that all relevant activity took place in Wales or the United Kingdom. For example, the Welsh Government‘s tourism strategy and action plan to promote tourism were formulated in Wales and all electronic storage and distribution of the photographs occurred from computers and servers located in the United Kingdom. Joint App‘x at A-313. In response to the district court‘s emphasis on the fact that it was the “Welsh Government in New York” that engaged in commercial activity, Pablo Star, 378 F. Supp. 3d at 313 (emphasis in original), the Welsh Government says that all of its offices in the United States were located in the United Kingdom‘s embassies and consulates, Joint App‘x at A-312, and that, under the Vienna Convention on Consular Relations, having an office at a foreign embassy or consulate does not provide a proper basis to invoke the commercial-activity exception. See Vienna Convention on Consular Relations, 596 U.N.T.S. 261 (Apr. 24, 1963), Art. 5(b), Art. 43 (“Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.“).
CONCLUSION
For the reasons stated above, we conclude that Pablo Star‘s lawsuit is “based . . . upon a commercial activity carried on in the United States,”