Sovereign immunity found to not apply in copyright infringement case. STAR v. THE WELSH GOVERNMENT

United States copyright law grants the creator of a new work the exclusive right to reproduce, distribute, perform, display, transmit and prepare derivative works based on the copyrighted work. A creator is granted a copyright when they create a copyrighted work. A copyright can be registered with The United States Copyright Office to strength the rights associated with it, however registration is not required for a copyright to be granted. If someone other than the copyright owner attempts to exercise one of the exclusive rights granted by copyright law, that can be considered copyright infringement. A copyright owner can file a complaint with a court to stop copyright infringement with an injunction and to get monetary damages for infringement which has already occurred.

In the United States a copyright is one of several legal concepts which shape the outcome of lawsuits. Another important legal concept is sovereign immunity. Sovereign immunity is the principle that a government cannot be sued unless the government consents to be sued. In the case of copyright infringement, the federal government has specifically waived its immunity from copyright infringement lawsuits under 28 USC 1498(b), but the penalties a copyright plaintiff can recover are extremely limited. State governments are generally considered immune from liability for copyright infringement unless the state has specifically waived the immunity.

The question then becomes do governments of foreign nations have sovereign immunity from liability for copyright infringement in the United States? One would think that foreign governments would have sovereign immunity unless they waived their immunity. 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. 28 U.S.C. § 1604. This means that there are some circumstances when sovereign immunity will not be granted to a foreign government.

PABLO STAR LTD., v. THE WELSH GOVERNMENT, 19-1262 (2nd Cir 2020) is an example of a case where a foreign government was found liable for copyright infringement in a United States court.

Plaintiff owns copyrights in two photographs of the Welsh poet Dylan Thomas and his wife, Caitlin Macnamara. Thomas spent significant time in New York City in the early 1950s and died there in 1953. The first photograph, “Just Married,” pictured the couple after their wedding in 1937; the second, “Penard,” shows them playing croquet. Plaintiff acquired the copyright to the photographs and registered the copyright in 2012.

Defendant is The Welsh Government, a political subdivision of the United Kingdom. To promote tourism to Wales defendant sponsored a tour in New York City which featured notable Welsh residents including Dylan Thomas. Defendant published a website to promote the tour titled “Welsh in America”. The web page featured the “Just Married” photograph. All of this material was created before Plaintiff’s copyright registration in “Just Married” and “Penard”.

At trial Defendant moved to dismiss the complaint asserting sovereign immunity under the FSIA. On March 29, 2019, the district court denied the motion to dismiss. Defendant appealed the decision to the Court of Appeals for the Second Circuit.

The Second Circuit affirmed the district court’s judgement. The Second Circuit noted that one of the exceptions to the Foreign Sovereign Immunities Act is when the cause of action is based upon a commercial activity carried on in the United States by the foreign state. The FSIA defines “commercial activity” as “either a regular course of commercial conduct or a particular commercial transaction or act.” The Second Circuit agreed with the district court that Defendant’s promotion of a walking tour in New York City was commercial conduct. The fact that the purpose of the conduct was to promote tourism for a government did not change the nature of the conduct to something which was quintessentially governmental. The Second Circuit remanded the case to the district court for further proceedings.

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