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On March 23, 2020, the United States Supreme Court held that copyright owners may not sue for damages when a state government uses their work without permission. The Court was unanimous in holding that states are protected by the doctrine of sovereign immunity, under which federal courts generally may not hear a suit brought by any person against a nonconsenting state.
Following its discovery in 1996, videographer Frederick Allen recorded videos and took photos of the shipwreck of the Queen Anne’s Revenge—the pirate Blackbeard’s flagship. After North Carolina published some of those videos and photos online, Allen sued for copyright infringement. When North Carolina moved to dismiss based on state sovereign immunity, Allen argued that Congress had removed the States’ sovereign immunity in copyright infringement cases through the Copyright Remedy Clarification Act of 1990 (the “CRCA”). The District Court agreed with Allen and denied North Carolina’s motion to dismiss.
On appeal, the Fourth Circuit reversed, noting that a patent case, Florida Prepaid Post secondary Ed.Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) precluded Congress from using its Article I powers—including the Intellectual Property Clause—to deprive States of sovereign immunity. Unlike the District Court, the Fourth Circuit read Florida Prepaid to mean that the 14th Amendment also did not support Congress’ limitations of sovereign immunity through the CRCA.
The Supreme Court agreed that Florida Prepaid governed the outcome of this dispute. Florida Prepaid considered the constitutionality of the Patent Remedy Act, which, like the CRCA, attempted for purposes of patent infringement litigation to put “States on the same footing as private parties.” In that opinion, the Court held that Congress could not use its Article I powers “to circumvent” the limits sovereign immunity“place[s] upon federal jurisdiction.” Applying this reasoning to Allen’s litigation, the Court stated that Article I cannot support the CRCA. Further, while Congress could restrict sovereign immunity based on the 14th Amendment, doing so would require Congress to identify a pattern of unconstitutional state actions. Since Congress did not so identify such a pattern when enacting the CRCA (just as it had failed to do when enacting the Patent Remedy Act), the 14th Amendment also did not support the CRCA.
In short, sovereign immunity permits state governments engaging in copyright infringement to, like Blackbeard, sail off into open waters without financial recourse.
The Supreme Court’s opinion is captioned Allen v. Cooper, No. 18-877.
The Trademark, Copyright & Advertising Group at Locke Lord LLP is experienced at helping companies and clients with questions regarding sovereign immunity and copyright matters. If you would like further information, please contact the authors.