25 November 2021CopyrightMuireann Bolger

Wales settles lawsuit over Dylan Thomas photographs

The Welsh government has settled a copyright infringement lawsuit involving its use of images of the poet Dylan Thomas in a tourism campaign and other marketing materials.

Media company Pablo Star sued the Welsh government for infringement in 2015, alleging it owned the copyrights to the disputed photographs of the Swansea-born poet titled “Just Married” and “Penard”.

The joint stipulation confirming the resolution of the suit was filed at the US District Court for the Southern District of New York, on November 23.

The photographs at the heart of the allegations depict Thomas and his late wife Caitlin, which were taken by their friend Vernon Watkins sometime after their wedding in Cornwall in 1937.

Sovereign immunity

According to the complaint, the allegedly infringing materials included the use of the images on a tourism website and a brochure and map that advertised Dylan Thomas-themed walking tours in New York.

The company also maintained that the Welsh Government used unauthorised images of Thomas in tourism advertisements encouraging US citizens to visit Wales.

“Beginning in 2014, the Welsh Government began using unauthorised copies of plaintiff’s photograph in advertisements, promotion, brochures, and other tourism related materials, including materials directed specifically at residents of New York and intended to lure American tourists to Wales,” the company said.

Wales countered by arguing that it was immune under the Foreign Sovereign Immunities Act (FSIA) from a private lawsuit alleging claims of copyright infringement because of the commercial-activity exception to the FSIA.

The government argued that its use of the photographs could not be deemed a commercial activity because it was promoting tourism to Wales, and had acted as a sovereign government

Commercial activity

But a New York district judge found that the marketing campaign fell within the “commercial activity” exception to the FSIA, prompting the Welsh government to appeal.

In June, the US Court of Appeals for the Second Circuit upheld this ruling and allowed the case to proceed to trial after finding that the use of the rare photographs was not protected by sovereign immunity.

The panel held that while the Welsh Government's actions advanced the “legitimate” sovereign purpose of enhancing the country's image, it was not exempt because its methods replicated those used by many profit-seeking companies in the private sector.

On Tuesday, New York District Judge James Paul Oetken accepted the joint stipulation to dismiss the action with prejudice, ending the long-running suit.

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More on this story

25 January 2016   A copyright claim filed against the Welsh government centring on photographs of the late poet Dylan Thomas has been dismissed by a court in Ireland, but could yet be heard in the UK.
9 June 2020   The Welsh government is not immune from a lawsuit which claims that it infringed on copyright-protected photographs of poet Dylan Thomas in a tourist campaign.