Photographers frequently encounter businesses and individuals who want to use their work without giving credit or paying for the right to use the photos. A pending copyright infringement case pending before the U.S. Supreme Court may make it easier for states to get away with this.

Allen v. Cooper

Allen v. Cooper, 139 S.Ct. 2664 (petition for certiorari granted June 3 2019) addresses the case of videographer and producer/director Rick Allen, who filmed the salvaging of an 18th century pirate ship in North Carolina in the 1990s. Allen obtained copyright registrations for all of his videos and photographs. 

Then the state of North Carolina proceeded to post five of Allen’s videos and one photograph on its tourism website and social media pages.

In 2015, Allen and his company, Nautilus Productions, filed a copyright infringement lawsuit against North Carolina’s governor and other state officials. He claimed that North Carolina should have obtained his permission to use his works and/or pay him.

North Carolina claimed the photos and videos were a public record. Then the state actually passed legislation that treats all photographs and videos of derelict vessels or shipwrecks and their contents as part of the public record.

This meant that the state could make use of the videos and photographs without having to obtain Allen’s permission or make payments to him.

Allen’s Journey to the Supreme Court

The U.S. District Court for the Eastern District of North Carolina ruled in Allen’s favor, despite North Carolina’s claim that the case should be dismissed since the state had sovereign immunity under the 11th Amendment to the U.S. Constitution. 

Allen argued that the Copyright Remedy Clarification Act (CRCA) abrogated sovereign immunity for copyright claims. 

The CRCA act specifically says that states, their instrumentalities, officers, and employees “shall not be immune under the Eleventh Amendment of the Constitution of the U.S. or under other doctrine of sovereign immunity from suit in Federal Court by any person . . . for a violation of any of the exclusive rights of a copyright owner provided by federal law.”

North Carolina appealed to the Fourth District Court of Appeals. 

The Fourth Circuit reversed the District Court’s opinion. It held that Congress lacked the authority to abrogate sovereign immunity through legislation and could only abrogate the constitution through amendment.

Allen then appealed to the U.S. Supreme Court. 

Does North Carolina Have Sovereign Immunity in This Case or Not?

The issue before the US Supreme Court is: Did Congress have the power under Article 1 of the Constitution or Section 5 of the Fourteenth Amendment to pass the CRCA, which abrogated State’s sovereign immunity from violating federal copyright law?

In November 2019, the U.S. Supreme Court heard oral arguments in the case. 

Allen’s legal team argued:

1. Congress validly exercised its power under the intellectual property clause to make states amenable to suit (U.S. Const. Art. I, Sec. 8, cl. 8) when it enacted the CRCA. The clause in the U.S. Constitution empowers Congress to secure to authors and inventors the exclusive right to their respective writings and discoveries.

2. In the alternative, if Congress cannot abrogate the 11th amendment under its Article I powers, Congress can act under the 14th amendment, Section 5, Due Process clause. By claiming sovereign immunity, states deprive authors of their property without due process of law. The 14th Amendment empowers Congress to enforce the 14th Amendment by appropriate legislation, which it has done through the CRCA.

North Carolina’s legal team argued:

1. The U.S. Supreme Court already held that Congress’ Article I powers over intellectual property did not allow it to abrogate sovereign immunity in relation to patents in the case of Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). This case addressed the validity of the Patent Remedy Act under Section 5 of the Fourteenth Amendment.

2. The CRCA is unconstitutional, and Congress’ Section 5 power to abrogate sovereign immunity does not apply in this case. 

We are still waiting for the U.S. Supreme Court to issue a ruling.

Get a Contract in Writing When Doing Business with State Governments

The outcome of this case will have a significant impact for copyright holders and copyright enforcement. 

Photographers, artists, and authors who hold copyright registrations for their works may want to think twice before they decide to do business with State governments. 

At the very least, they should get a contract in writing that states they own the copyrights to their works and the State will pay them for the use of the works.