Pablo Star Ltd. v. The Welsh Government, No. 15-CV-1167 (S.D.N.Y. Mar. 16, 2016)

The case arose out of the use of two photographs depicting Welsh poet Dylan Thomas, allegedly in violation of the Copyright Act.  The owners of the copyrights to the photos, Pablo Star Ltd. and Pablo Star Media Ltd. (“Plaintiffs”) are companies organized under the laws of Ireland and the United Kingdom, respectively.  The Defendants include the Welsh Government and Visit Wales (“the Welsh Government”) and seven Publisher Defendants.  Defendants moved to dismiss on the grounds that the Welsh Government is immune to suit under the Foreign Sovereign Immunities Act (“FSIA”), that venue was improper and that the court lacked personal jurisdiction over the Publisher Defendants. 

Plaintiffs allege the Welsh Government, through its tourism arm, displayed the copyrighted photographs of Dylan Thomas on websites accessible in the United States and in a downloadable walking tour guide map.  Plaintiffs also allege that the Welsh government provided unauthorized copies of the photographs to the Publisher Defendants and that the Publisher Defendants, in turn, published or displayed those photographs on their websites and in print publications.

The Welsh Government argued that it was immune from suit under the FSIA.  The parties did not dispute that the Welsh Government was a political subdivision of the United Kingdom and that jurisdiction could only be acquired in accordance with the FSIA’s requirements.  The parties contested the applicability of three statutory exceptions to the general rule of foreign sovereign immunity: (1) the commercial activity exception; (2) the expropriation exception; and (3) the noncommercial tort exception.  However, the court declined to address whether the Welsh Government was immune to suit under the FSIA because it dismissed on independent grounds.

The court determined that the Welsh Government had not been properly served under the FSIA, explaining that 28 U.S.C. § 1608(a) is the sole means of effecting service over a foreign state.  There are three methods of service under the FSIA: (1) “by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision;” (2) “if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents;” and (3) if service cannot be made under 1 or 2 above, “by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.”

Plaintiffs argued that they effected service under paragraph 1 and then, out of an abundance of caution, also effected service on the head of the Ministry of Foreign Affairs of the United Kingdom, pursuant to paragraph 3.  The court noted that service under paragraph 3 is only appropriate when service cannot be effected under paragraphs 1 or 2, and, therefore, the Plaintiffs needed to comply with the Hague Convention to effect service under paragraph 2 before attempting service by paragraph 3.  The question, then, became whether service was properly effected under paragraph 1.  Email correspondence showed that the Plaintiffs were told to effect service pursuant to the Crown Proceedings Act 1947 and that the Welsh Government’s counsel informed Plaintiffs that he was not authorized to accept service.  The court determined that the clearest reading of the communication is that the Welsh Government directed Plaintiffs to comply with the rules of service of the United Kingdom, not that a special arrangement for service was agreed to by the parties.  The court further explained that a clear and formal statement showing the agreement for a special service arrangement is required by the FSIA, such as a contract between the two parties specifying a method of service in the event of a lawsuit.  The court determined that the record did not support the conclusion that a special arrangement was made and so service was not properly effected under § 1608(a).  Therefore, the claims against the Welsh Government were dismissed for improper service.

Defendants also moved to dismiss claims against the Welsh Government based on improper venue.  The court noted that the Plaintiffs had not alleged that any specific conduct occurred in the district, much less that a substantial part of it did.  Plaintiffs, like the Welsh Government, do not reside in the United States.  All of the relevant conduct by the Welsh Government appears to have occurred abroad.  The court thus also granted the motion to dismiss the claims against the Welsh Government based on improper venue.