The U.S. Court of Appeals for the Second Circuit on Monday allowed a copyright infringement case against the government of Wales to proceed toward trial, finding that its use of rare photographs to promote domestic tourism was not protected by sovereign immunity.

A three-judge panel of the Manhattan-based appeals court upheld a district judge's ruling that the government's 2013 marketing campaign, featuring images of the famous Welsh poet Dylan Thomas, fell within the "commercial activity" exception to the Foreign Sovereign Immunities Act, which generally limits the circumstances under which a foreign power can be sued in U.S. federal courts.

The panel held that while the Welsh government's actions advanced the "legitimate" sovereign purpose of enhancing the country's image and the prosperity of its citizens, it did so in a way that was common to any number of private-sector businesses seeking profit from advertising.

"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," Judge Gerard E. Lynch of the U.S. Court of Appeals for the Second Circuit wrote in a 27-page opinion.

"Thus," he said, "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."

Lynch was joined in the unanimous decision by Judges Rosemary S. Pooler and Michael H. Park.

The lawsuit, filed in 2015 by copyright owner Pablo Star Ltd., seeks lost licensing fees and damages from the Welsh government's use in marketing materials of two photos of Thomas, best known for his works "Do not go gentle into that good night" and "A Child's Christmas in Wales."

According to court documents, the Welsh government included the photos in a brochure for a walking tour of Greenwich Village in New York City, where the poet had lived in the early 1950s.

Wales, one of the countries that make up the United Kingdom, moved to dismiss the case, arguing that the commercial activity exception to the FSIA did not apply because its marketing strategy was an "inherently governmental" function and lacked the substantial contacts to the U.S. necessary to trigger the exception.

U.S. District Judge J. Paul Oetken of the Southern District of New York, however, rejected those arguments last March, and the Welsh government filed an interlocutory appeal with the Second Circuit.

On Monday, the panel agreed with the lower court's reasoning that Pablo Star's alleged injuries in the case where based "directly" on the government's commercial conduct, which relied at least in part on American media and printing firms to distribute its materials.

"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," the court said. "We therefore affirm the district court's denial of the Welsh Government's motion."

Nathaniel Kleinman, who represents Pablo Star, on Monday praised the ruling when contacted by phone for an interview.

"We are obviously very pleased with the decision," said Kleinman, who head's the McCulloch Law Firm's New York office.

"Although it was not a surprise, we thought very clearly from the beginning that the facts and the law were on our side," he said.

An attorney for Wales did not respond Monday afternoon to a request for comment.

Kleinman said that discovery had already begun in regard to a separate defendant that was not a party to the Welsh government's appeal on sovereign immunity grounds, and the parties were expected to hold a conference with Oetken to discuss a schedule in the case. No trial date had yet been set, he said.

Wales is represented in the case by Richard Oparil, a partner with Arnall Golden Gregory in Washington, D.C.

The case, on appeal to the Second Circuit, was captioned Pablo Star v. The Welsh Government.

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