SCOTUS Redefines State "Piracy"

Published date23 October 2020
Subject MatterIntellectual Property, Government, Public Sector, Litigation, Mediation & Arbitration, Copyright, Constitutional & Administrative Law, Sovereign Immunity: Public Sector Government
Law FirmGordon Rees Scully Mansukhani
AuthorMs Alison M. Pringle

The Supreme Court recently ruled in favor of keeping state governments immune from copyright infringement lawsuits in Allen v. Cooper (Case No. 18-877). The decision affirmed the Fourth Circuit's dismissal of a videographer's infringement claim against the state of North Carolina.

The Shipwreck Footage in Dispute

The copyrighted material at issue involved footage of wreckage from the Queen Anne's Revenge, famed pirate Blackbeard's ship that ran aground off North Carolina's coast in 1718. Videographer Frederick Allen spent over a decade creating videos and photos of the ship's underwater excavation Allen later registered copyrights in the works.

The dispute began when North Carolina used Allen's footage as part of an online marketing campaign. The State hosts frequent Blackbeard-festivals and its Maritime Museum features artifacts from the Queen Anne's wreckage. The State used Allen's works to promote its Blackbeard-related tourism.

Lower Court Rulings

Allen sued for monetary damages after the State posted his photos of the shipwreck online allegedly without payment or permission.

North Carolina argued sovereign immunity precluded Allen's suit against the State and moved to dismiss. The District Court for the Eastern District of North Carolina refused to dismiss Allen's claims but the Fourth Circuit reversed, finding Congress had not abrogated the States' immunity from copyright infringement suits.

The Supreme Court affirmed by ruling Congress lacked a valid constitutional basis to abrogate North Carolina's sovereign immunity under existing legislation. The ruling required a deep dive into constitutional interpretation and congressional power.

Congressional Action and Constitutional Limitations

Generally, under Eleventh Amendment sovereign immunity, federal courts cannot hear lawsuits brought by individuals against a non-consenting state. However, a court may permit such suits if (1) Congress has enacted "unequivocal statutory language" abrogating the States' immunity from suit;1 and (2) a constitutional provision allows Congress to encroach on the States' sovereignty.2

In the early 1990's, Congress passed two acts abrogating the States' sovereign immunity with respect to copyright and patent litigation via the Copyright Remedy Clarification Act ("CRCA")3 and "Patent Remedy Act" ("PRA")4'fulfilling the first prong for abrogation based on unequivocal statutory language.5 The remaining issue for the Allen Court was whether Congress had the power to...

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