23 March 2020CopyrightSarah Morgan

States immune from copyright suits: SCOTUS

The US Supreme Court has declared that state institutions can’t be sued for copyright infringement, in a case stemming from the use of videos and images featuring the wreck of Blackbeard’s ship, Queen Anne’s Revenge.

In a  decision handed down today, March 23, the Supreme Court delivered a blow to photographer and videographer Rick Allen in his bid to ensure that copyright owners the right to sue state institutions for unlicensed use of their work.

The court’s decision will prove a disappointment to more than a dozen copyright groups including The Copyright Alliance and non-profit the Washington Legal Foundation, that had  filed briefs in support of the photographer.

Allen, who owns the copyright for his efforts to document the wreck of Queen Anne’s Revenge (which infamous pirate Blackbeard ran aground in North Carolina in 1718), had taken North Carolina to court, after the state’s Department of Natural and Cultural Resources uploaded a selection of Allen’s work online in 2013.

The parties agreed to a settlement, but the state then passed Blackbeard’s Law, a statute which made public “all photographs, video records, or other documentary materials of a derelict vessel or shipwreck”.

While Allen was initially successful in suing the state for copyright infringement at the district court level, the state was successful on appeal, with the US Court of Appeals for the Fourth Circuit holding that North Carolina was immune under the doctrine of state sovereign immunity.

State immunity

Under the Eleventh Amendment to the US Constitution, federal courts cannot hear a suit brought by a person against a non-consenting state. Suits are permitted if the US Congress uses “unequivocal statutory language” to abrogate this immunity and there is a constitutional provision to allow Congress to do so.

Before the Supreme Court, Allen had argued that the Copyright Remedy Clarification Act of 1990 waived the state’s right to immunity in the case of copyright infringement suits.

In rejecting this argument, Justice Elena Kagan, who delivered the court’s opinion, said: “No one here disputes that Congress used clear enough language to abrogate the states’ immunity from copyright infringement suits.”

However, the question was whether Congress had the authority to take this step. The court found it did not.

While Allen had argued that Congress’ constitutional power arose either from the Intellectual Property Clause, (article 1, section 8, clause 8 of the US Constitution) or from section 5 of the Fourteenth Amendment, the court said each contention was “foreclosed by precedent”.

In the early 1990s, Congress attempted to abrogate states' immunity from IP suits, in the Patent Remedy Act. But the Supreme Court’s decision in Florida Prepaid v College Savings Bank held that the act swept too far and lacked a valid constitutional basis.

Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And it held that section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here,” concluded the court.

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More on this story

6 November 2019   The US Supreme Court has been urged to give copyright owners the right to sue state institutions for unlicensed use of their work.
15 August 2019   Pirate ship photographer Frederick Allen has received a welcome boost in his lawsuit before the US Supreme Court, with the filing of numerous amicus briefs from copyright groups.
24 March 2020   Copyright lobbyists have urged US lawmakers to revisit the statute on state sovereign immunity in the wake of yesterday’s US Supreme Court ruling in Allen v Cooper.