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Supreme Court: Sovereign immunity sinks copyright claims

October 1, 2020
October 2020 IP Newsletter

Link to the Newsletter here

If your copyright is infringed by a state, you’re likely out of luck. That’s the result of a unanimous decision from the U.S. Supreme Court striking down a federal law that allowed copyright owners to sue states in federal court for infringement.

The sunken treasure

The case arose out of the discovery of a wrecked pirate ship off the North Carolina coast in 1996. As the shipwreck’s legal owner, the state contracted with a videographer to document recovery operations. He recorded videos and took photographs for more than a decade, registering copyrights in all his works.

When North Carolina published some of the works online, the videographer sued the state for copyright infringement. The state asserted sovereign immunity, but the trial court sided with the videographer. It found that the Copyright Remedy Clarification Act of 1990 (CRCA) abrogated state sovereign immunity from copyright claims. The U.S. Court of Appeals for the Fourth Circuit reversed, and the case moved to the Supreme Court.

Rough waters

Federal courts generally can’t hear lawsuits brought by any person against a nonconsenting state. But such claims are allowed if 1) Congress has enacted a statute that clearly abrogates states’ immunity, and 2) the Constitution allows Congress to do so. The Court found that the first criterion was satisfied and focused on the constitutional requirement.

The videographer argued that the Intellectual Property Clause in the Constitution or the 14th Amendment gave Congress the necessary authority to sue the state. The Supreme Court disagreed, citing an earlier case in which it found that Congress couldn’t use its power over intellectual property to circumvent the limits that sovereign immunity put on federal jurisdiction. For the same reason, the Court found here that Article I didn’t support the CRCA.

The earlier case imposed limits on Congress’s ability to abrogate states’ immunity under the 14th Amendment. Congress must identify a sufficient pattern of unconstitutional infringement that deprives people of their property rights without due process to justify stripping the states of sovereign immunity in all copyright infringement cases. With only a dozen possible examples of state copyright infringement identified, it fell short when enacting the CRCA.

The ship hasn’t necessarily sailed

The decision could leave copyright holders without a remedy against states for infringement. Copyright owners might try to negotiate some contractual protections from use that exceeds the contemplated scope, such as a waiver of sovereign immunity or higher-than-market compensation.
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