U.S. Supreme Court Quietly Determined in March that States Cannot Be Sued for Copyright Infringement

The United States Supreme Court quietly ruled on March 23, 2020, that a state could not be sued for copyright infringement because they have sovereign immunity. The Supreme Court’s ruling came as they denied a Writ of Certiorari in Allen v. Cooper. The Court reviewed the Fourth Circuit’s decision and upheld that states are immune from copyright infringement. 

Frederick Allen had sued the state of North Carolina for using his videos of the salvage of the Queen Anne’s Revenge. This shipwreck was discovered off the coast of North Carolina in 1998. Mr. Allen sued North Carolina in 2013 for using the videos without his permission. North Carolina claimed a defense of sovereign immunity. The initial district court ruling was against the state; however, the appeals court reversed. Allen then filed another appeal, and his Writ of Certiorari was denied by the Supreme Court last month, holding that Congress lacked any authority to limit a state’s immunity under the Copyright Remedy Clarification Act (CRCA) of 1990. This amendment to the Copyright Act of 1976 had taken away sovereign immunity as a defense for copyright infringement. 

As a result, a state that infringes on a photographer’s photos or videos now, once again, has a strong defense against any action. In recent years, more and more copyright infringement actions have been filed by photographers for a variety of photograph and video types. The use of computer algorithms to search the internet for alleged infringed photographs has led to these lawsuits. The Supreme Court’s ruling, while a victory for the state of North Carolina, will pose an additional burden on photographers to enforce their rights against states that have knowingly or unknowingly infringed upon valid copyrights.  One way around the immunity defense will be for copyright holders to sue the third parties, such as marketing firms, that work with the states and use the photos or videos. Copyright holders can also still obtain injunctions or declaratory judgements related to the use of their work, just not receive monetary damages from the states for infringements. 

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