State Rights and Copyright Q & A – Allen v Cooper  

September 10, 2019


Share on facebook
Share on twitter
Share on linkedin
Share on email

Rick Gell, interim Executive Director of the DMLA back again with our Senior Legal Counsel Nancy Wolff of CDAS. Welcome back Nancy.

We have a ruling in Allen v Cooper heading to the Supreme Court in November, and once again, realize how much there is to learn about copyright law. Nancy, to start, what the hell do state rights and state sovereignty have to do with copyright law?

Well Rick, according to case law, the 11th amendment gives states immunity from damages under copyright.

 If State Sovereignty is applied to copyright, how broadly does it affect copyright holders?

State sovereignty means that states are exempt from being liable for monetary compensation for infringing copyright. This immunity could have a significant impact on content creators and their licensing representatives as states use content in many of their operations. States create many publications through university presses, and create many materials, online and in print. This disregard for copyright means that states can use works with impunity with little risk of a legal action. Most content owners will not bring a claim to just “stop” a work, as litigation is too expensive to merely achieve an injunction. This erodes the licensing model.

 Ok, so now, let’s unpack what the courts recently ruled in Allen v Cooper?

 In Allen v. Cooper, the Fourth Circuit reversed the Eastern District of North Carolina’s holding that photographer/videographer Frederick Allen was entitled to sue the State of North Carolina for allegedly infringing his copyrights.

Allen, and his production company Nautilus Productions, were the exclusive photographers of the shipwreck of Queen Anne’s Revenge since 1998. In 2013, Allen found out the State had been using his videos online without permission. Although he entered into a settlement agreement, requiring the State to pay Allen fees for the use of the photographs/video, the State continued to use his works after the agreement without compensation. In addition, the NC government passed a law making all photographs and video material of shipwrecks in the custody of North Carolina a public record and available for use without limitations, essentially placing them in the public domain.

Allen filed an action for declaratory judgment, arguing the NC statute violates the “Takings and Due Process” clauses of the Constitution.

Time out. Sounds like we have conflicting laws here. Can you explain the Takings and Due Process clause in the Constitution?

The Fifth Amendment to the U.S. Constitution limits the power of the Federal Government of the United States by saying that “no person shall be deprived of life, liberty, or property, without due process of law.” And “nor shall private property be taken for public use, without just compensation.”

Due process means that a person is entitled to the fair administration of justice and the government cannot take, in this instance “property” in the form of photographs, without a fair hearing, and the takings clause prevents the government from taking property without compensating the owner.

And what did North Carolina have to say about Allen invoking the Taking and Due Process clause?

NC also argued the Copyright Remedy Clarification Act did not waive state sovereign immunity, and that individuals were precluded from suing states for copyright infringement. After the lower court found for Allen, the State appealed to the US Court of Appeals for the Fourth Circuit.

The U.S. Court of Appeals for the Fourth Circuit held that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment immunity from Copyright Damages. This decision is being appealed and the Supreme Court agreed to hear the case. The case will be heard on November 5, 2019.

My head is spinning. The Constitution says States have sovereignty, and people have rights in their property, and there is yet another law that specifically addresses Copyright as an exception to state sovereignty – and that is the Copyright Remedy Clarification Act?

 The Copyright Remedy Clarification Act (CRCA) is a United States copyright law that attempts to abrogate sovereign immunity of states for copyright infringement. The CRCA amended 17 USC 511(a):

In general. Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

 So, if there is a law that specifically carves out copyright from state sovereignty, how is NC even making a case?

The court said that Congress did not have the authority under the Constitution to abrogate  the states’ sovereign immunity and would not enforce the Copyright Remedy Clarification Act. 

What about the additional law stating all photos and videos of shipwrecks in custody of North Carolina Public Record couldn’t be copyrighted?

After the lower court held that Allen could sue NC  for copyright for using his images of the shipwreck, North Carolina state lawmakers passed §121-25(b) —which treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record.”  Allen called it “Blackbeard’s Law”.

Lastly, the DMLA is part of a group of visual arts organizations who help cover costs for filing and printing the Amicus Brief, correct?

 Yes, we call ourselves the Coalition of Visual Artists, and the group includes the Copyright Alliance, APA, ASCRL, ASMP, Graphic Arts Guild, NPPA and PPA.

 I can’t help myself, here is a little plug. You will be participating in the 24th Annual DMLA Conference in LA October 27-29 – as part of the Hot Topics in Legal  session with other big IP guns in the licensing industry – correct?


Can we go now?