For years, NPPA’s attorneys have grown increasingly concerned about copyright infringement by state entities that, when challenged for the infringement, assert immunity from suit. Two cases making their way through the courts hold potential for a full or partial resolution to this pernicious problem. NPPA has been active in both cases, filing amicus briefs in support of the photographer and videographer plaintiffs.
States generally have a defense called “sovereign immunity” that protects them from being sued for money damages in most circumstances. Decades ago, Congress passed the Copyright Remedy Clarification Act (CRCA), which says that states cannot get governmental immunity from copyright claims, thus restoring a delicate balance to that issue. However, several federal appeals courts have since held that the CRCA went beyond Congress’ powers and is invalid. A similar law related to patents was invalidated by the U.S. Supreme Court, and lower appellate courts have used that holding as reasoning for declaring the CRCA invalid in other cases as well.
As a result, the pace at which states claim sovereign immunity has been increasing, and countless copyright cases have been dismissed citing these precedents. An even greater number of claims have never been brought because the infringing state actor asserted sovereign immunity during the settlement phase, or the prospect of a sovereign immunity defense discouraged attorneys from taking the case to begin with.
The U.S. Supreme Court is scheduled to hear arguments in the case of Allen v. Cooper. The question before the court is whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states. The high court should rule on the matter sometime next year.
In Allen v. Cooper, Frederick Allen, a videographer, sued the state of North Carolina for copyright infringement after it used his documentary footage of salvage efforts of Blackbeard’s pirate ship without permission. The state claimed sovereign immunity as its defense. The Eastern District of North Carolina held that Allen was entitled to sue the state for copyright infringement, but the U.S. Court of Appeals for the Fourth Circuit reversed that ruling, and Allen has now appealed to the Supreme Court, which decided to hear the case. The court is now expected to determine whether Congress overstepped its constitutional bounds in passing the CRCA. The decision, in this case, will ultimately determine whether states can be held liable for damages under the Copyright Act — or whether sovereign immunity clears the way for states to infringe with impunity everything from photographs to Hollywood movies.
University of Houston System v. Jim Olive Photography is a case that began when Texas photographer Jim Olive discovered that the University of Houston was using one of his elaborate aerial photographs for marketing purposes without permission. When Olive asked the university to pay for the use, it refused and told him it was shielded from suit because of sovereign immunity.
After the university refused to pay him, Olive filed a lawsuit alleging that the state used his property without fair payment. A provision of the Fifth Amendment of the U.S. Constitution, known as the Takings Clause, states that “private property [shall not] be taken for public use, without just compensation.” There is a similar provision in the Texas Constitution. While the Takings Clause is typically thought of in terms of the government’s seizure or destruction of real property, it applies to all personal property and has been applied in patent and trade secrets cases by some courts. Earlier this year, in Jim Olive’s case, the intermediate appeals court in Houston held that a state entity can infringe copyright without being held responsible under the takings clauses of the Texas or U.S. constitutions, “even as the government pirates the entirety of his work.” Olive is appealing to the Supreme Court of Texas (the highest court in that state), and the outcome of that case will test whether copyright infringement by the state of Texas can be dealt with using the Takings Clause. Other courts typically give deference to pending U.S. Supreme Court cases, so a decision in this case is not likely to come until after the Allen v. Cooper opinion is issued.
NPPA is already thinking through what will happen if the U.S. Supreme Court invalidates the CRCA, particularly if the Texas Supreme Court denies that a copyright infringement qualifies as a “taking.” First, it is important to remember that the only relief against a state action such as infringement is injunctive — forcing state actors to take down and stop using the work — rather than one awarding monetary damages. To many, this may not be very cost-effective when bringing a copyright infringement claim. Second, such rulings would likely cause copyright holders — both large corporations such as movie studios and individual creators such as photographers — to pressure Congress to amend CRCA to cure any constitutional invalidation raised by the court. Unfortunately, any revised version of the CRCA might not include the depth of protection available under current copyright law. Without a doubt, any legislative response will depend on the guidance presented in the Supreme Court’s opinion. Finally, it might be possible to get states to waive sovereign immunity on a state-by-state basis; however, that would take years because it would require each state to enact legislation that does so. ■
Additional links at nppa.org:
NPPA, ASMP ask the U.S. Supreme Court to protect photographers from copyright infringement by states
Texas appellate court holds that government piracy of copyrighted work is not a takings
Got a question or topic for a future column? If you are an NPPA member, send your question to us or find us at an NPPA event. Email Mickey Osterre-icher at [email protected] or Alicia Calzada at [email protected]