The NPPA and ASMP, joined by five visual arts associations, weighed in on Tuesday in a copyright case before the U.S. Supreme Court, and asked the high court to determine that states cannot freely infringe on copyright.
States generally have a defense called “sovereign immunity” which protects them from being sued for money damages in most circumstances. Congress passed a law in 1990, the Copyright Remedy Clarification Act (CRCA), that explicitly prohibits states from claiming sovereign immunity in copyright cases. However, several federal courts have determined that the CRCA was invalid, saying that Congress did not have the power to waive state sovereign immunity in the way that it did. A similar law related to patents has been invalidated by the Supreme Court, and lower courts have used that holding as reason for invalidating the CRCA. In recent years states have frequently claimed sovereign immunity when faced with copyright infringement claims. In this case, 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 Supreme Court is now expected to determine whether or not Congress overstepped its bounds in passing the CRCA. The decision in this case, expected by mid-2020, will ultimately determine whether states should be liable for damages under the Copyright Act — or whether sovereign immunity clears the way for states to infringe everything from photographs to Hollywood movies, without liability.
The NPPA/ASMP amicus – or “friend of the court” – brief outlined the importance of being able to enforce copyright by visual artists and to the economy as a whole. The groups argued that if states are given free reign to infringe on copyrights with impunity, it would have devastating consequences on the creative sector, particularly photographers and other creative small businesses. Permitting wholesale infringement by state entities would cause irreparable harm to the industry and would interfere with the market in many ways, including interfering with exclusive licenses. The associations’ members have reported frustration when faced with unapologetic state entities who infringe their images. Attorneys who represent photographers often decline infringement cases where the infringer is a state entity. The brief also highlighted the First Amendment issues that arise when a state uses a photo without permission. The associations argued that such a use amounts to forced speech, which a long line of caselaw forbids.
NPPA is grateful for the collaboration of the other attorneys and associations who participated in this brief. The brief was authored by NPPA General Counsel Mickey Osterreicher, NPPA Deputy General Counsel Alicia Wagner Calzada, ASMP General Counsel Thomas Maddrey, and J. Michael Heinlen, of Thompson & Knight, for ASMP. The brief was joined by the North American Nature Photography Association, Graphic Artist’s Guild, Professional Photographers of America, American Photographic Artists, and the Digital Media Licensing Association.
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