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Supreme Court Rules States Immune From Copyright Claims
23 March 2020
In a unanimous decision announced today, the Supreme Court ruled that states are immune from copyright claims. The case, Allen vs. Cooper, was brought by underwater videographer Frederick Allen who sued the state of North Carolina for using his copyrighted videos of a salvage operation of the Queen Anne's Revenge, the pirate Blackbeard's flagship.
North Carolina officials posted five of Allen's copyrighted videos on a YouTube channel and printed one of his photographs in a newsletter.
The Constitution, Justice Elena Kagan wrote, grants states sovereign immunity, shielding them from federal lawsuits despite a 1990 federal law that allowed copyright lawsuits against states.
Under the court's precedents, she wrote in an opinion joined by six of the justices, Congress was powerless to enact that law. Congress simply lacked the authority to abrogate the states' sovereign immunity from copyright infringement suits in its Copyright Remedy Clarification Act of 1990.
Allen's argument that the Copyright Remedy Clarification Act of 1990 validly abrogated state sovereign immunity was foreclosed by the court's 1999 decision in Florida Prepaid Postsecondary Ed. Expense Bd. vs. College Savings Bank. That decision held that the Patent Remedy Act of 1990, enacted at the same time as the Copyright Remedy Clarification Act, did not validly abrogate sovereign immunity.
No justices dissented in the 9-0 decision. Justice Clarence Thomas filed an opinion concurring both in part and in the judgment. Justice Stephen Breyer filed an opinion concurring in the judgment, which Justice Ruth Bader Ginsburg joined.
Because copyright is federal law, copyright suits must be brought in federal court.
Intellectual property attorney J. Michael Keyes, a partner at the Dorsey & Whitney, noted Allen still has a couple of avenues to pursue.
"While states are immune from suit, others that may be involved in copying or reproducing the work at issue are not. For example, if a state uses the resources of a third party to copy or distribute the work at issues, those parties would still be potentially on the hook for infringement claims," Keyes said. That could leave Google on the hook for publishing the copyrighted material on YouTube.
In addition, "To the extent a state breached a license agreement related to a work of authorship (a software license, for example), those claims could still be potentially brought in a state court under a breach of contract theory," Keyes suggested. "But at the present time the federal courts are closed to aggrieved parties who suffered infringement at the hands of a state."