Supreme Court Holds States Immune From Copyright Suits

March 23, 2020 by Dan McCue

WASHINGTON – The Supreme Court ruled Monday that state governments cannot be sued for copyright infringement, rejecting a case filed against North Carolina over footage of a pirate shipwreck.

In a unanimous ruling, the justices held North Carolina is shielded by state sovereign immunity from a lawsuit filed by Frederick Allen, a filmmaker who sued the state for using his footage of the wreck of the Queen Anne’s Revenge, once the flagship of the pirate Blackbeard.

The ruling strikes down a ruling by the 4th U.S. Circuit Court of Appeals, which held North Carolina’s claim to sovereign immunity was voided by Congress’ passage of the Copyright Remedy Clarification Act of 1990.

The roots of the case extend back to 1996, when a marine salvage company named Intersal, Inc., discovered the shipwreck of the Queen Anne’s Revenge in relatively shallow waters off the North Carolina coast.

North Carolina, the shipwreck’s legal owner, contracted with Intersal to conduct recovery operations. Intersal, in turn, hired videographer Frederick Allen to document the efforts.

Allen recorded videos and took photos of the recovery for more than a decade. He registered copyrights on all of his works. When North Carolina published some of Allen’s videos and photos online, Allen sued for copyright infringement.

North Carolina moved to dismiss the lawsuit on the grounds of state sovereign immunity, but Allen maintained that the Copyright Remedy Clarification Act of 1990 removed the states’ sovereign immunity in copyright infringement cases.

The District Court agreed with Allen, finding in the CRCA’s text a clear congressional intent to repeal state sovereign immunity and a proper constitutional basis for that removal.

The court acknowledged that an earlier case, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, precluded Congress from using its Article I powers—including its authority over copyrights—to deprive states of sovereign immunity.

But it nevertheless found that Congress could accomplish its objective under Section 5 of the 14th Amendment. The 4th U.S. Circuit Court of Appeals disagreed and reversed the lower court ruling, holding Florida Prepaid prevented recourse under both Article I and Section 5.

In a ruling written by Justice Elena Kagan, all nine justices said the 4th Circuit had gotten it wrong, and that the lower court was right.

What subtle disagreement there was on the high court was expressed in concurrent opinions.

For instance, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said Congress had sought to provide that “when proven to have pirated intellectual property, states must pay for what they plundered.”

Blackbeard, whose name was Edward Teach, prowled the shipping lanes off the Atlantic coast of North America and throughout the Caribbean before running the Queen Anne’s Revenge aground on a sand bar and escaping, temporarily, into the wilds of North Carolina.

He was eventually killed by British naval officers at North Carolina’s Ocracoke Inlet.

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