Pirates and Piracy: The Supreme Court Will Examine Whether States are Immune from Copyright Infringement Claims in a Dispute Over Blackbeard’s Shipwreck

By John Grimm

The Supreme Court has agreed to hear a case that will determine whether Congress can abrogate states’ sovereign immunity with respect to copyright infringement claims.  Allen v. Cooper, No. 18-877.    The case arises out of an underwater research expedition to document and salvage the wreck of Blackbeard’s ship off the coast of North Carolina.  The salvage team alleges that, without permission, North Carolina published some of the team’s footage on the internet, violating its copyright in the footage.

Despite the exotic facts, the question presented is not as obscure as it might seem: Only days after the Court granted cert in Allen, a Texas appellate court dismissed a similar lawsuit in which a photographer claimed a state university used his photograph of the Houston skyline without permission.  Univ. of Hous. Sys. v. Jim Olive Photography, No. 01-18-00534-CV (Tex. Ct. App. Jun. 11, 2019).

At the Fourth Circuit stage in Allen, North Carolina argued that the plaintiffs’ infringement claims were barred by the Eleventh Amendment and sovereign immunity.  Allen v. Cooper, No. 17-1602, – – – F.3d – – – (4th Cir. 2019).  The plaintiffs, however, relied on the Copyright Remedy Clarification Act (“CRCA”), in which Congress expressly provided that “[a]ny State . . . 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 . . . for a violation of any . . . Rights of a copyright owner[.]”  17 U.S.C. § 511(a).

Although there is no doubt from that language that Congress intended states to be liable for copyright infringement, the Fourth Circuit ultimately agreed with North Carolina, holding that the CRCA itself is unconstitutional.  The court relied on Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) and in is progeny,^[i] in which the Supreme Court established that Congress cannot use its Article I powers—which include Congress’s powers to create copyright law—to abrogate sovereign immunity.  Because, the court held, Congress clearly enacted CRCA under its Article I copyright authority, its attempt to abrogate sovereign immunity from copyright infringement suits was invalid.^[ii]

Allan arrives at the Supreme Court at an interesting moment.  Earlier this Term, the Court strengthened the doctrine of state sovereign immunity, holding in Franchise Tax Bd. Of Cal. v. Hyatt, No. 17-1299, that states cannot be sued against their will in another state’s courts.  In that case, the Court recognized interstate sovereign immunity as a structural aspect of the Constitution, not simply a doctrine of comity between states.  That holding—along with Seminole Creek doctrine—both seem to be factors suggesting the Court might affirm the Fourth Circuit.

Allan could also have interesting effects to both for the law of copyright and the law of takings.  If traditional infringement claims are not available against states, copyright holders might resort to challenging infringement as an unconstitutional taking under the Fifth Amendment—a kind of claim in which states less clearly enjoy immunity.  The  Texas Court of Appeals noted that the authority on whether a copyright is “property” for purposes of a takings claim is sparse and divided, and in Maryland it appears an open question.  If Allen firmly closes the door to copyright holders on traditional infringement actions against states, courts may soon find themselves forced to grapple with novel questions about basic property rights.

^[i] The Allen plaintiffs argued that the Seminole Tribe line has, itself, been abrogated by subsequent holdings, but the Fourth Circuit disagreed that those decisions applied in copyright infringement claims, and thus applied the Seminole Tribe doctrine.

^[ii] Although Congress can still rely on its powers under Section 5 of the Fourteenth Amendment to abrogate state sovereign immunity, the Fourth Circuit held that Congress had not made any showing that it was invoking its Fourteenth Amendment authority when it enacted the Copyright Remedy Clarification Act, and even if it had, the act was not proportional to the Fourteenth Amendment injury sought to be remedied and therefore would be invalid in any event.