Case of the Day: Pablo Star v. Welsh Government

The case of the day is Pablo Star, Ltd. v. Welsh Government (S.D.N.Y. 2019). The case involves Wales’s great twentieth-century poet, Dylan Thomas. I almost want to make this post about Thomas’s poems, because I think he is so terrific. Start reading this out loud:

The force that through the green fuse drives the flower
Drives my green age; that blasts the roots of trees
Is my destroyer.
And I am dumb to tell the crooked rose
My youth is bent by the same wintry fever.

Or this:

And death shall have no dominion.
Dead man naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

Or this, from his most famous poem (though my least favorite of the three):

Do not go gentle into that good night,
Old age should burn and rave at close of day;
Rage, rage against the dying of the light

But the case isn’t about Thomas’s poems, but about photographs of the poet. Pablo Star owned the copyright of several photographs, and it claimed that the Welsh government had infringed the copyright. I wrote about the case in March 2016, and I see that in the last post, I referenced the three poems I have quoted here, which I guess is just a way of saying I’m pretty clear in my own mind about my favorite Thomas poems.

The issue was whether the court had jurisdiction or whether the Welsh government has FSIA immunity. The Welsh government had used the photographs in a campaign to promote tourism in Wales. It argued that this was not commercial activity: “[T]he Welsh Government did not use the photographs for profit[,] but [instead used them] to carry out its public mission to encourage economic development, culture, and tourism in Wales.” But the court rejected this argument. “The 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.” In short, as the FSIA itself demands, what matters is the natures of the acts the foreign sovereign commits, not their purpose.

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