Earlier today, the Supreme Court of the United States dealt a major blow to photographers’ copyright protections when it declared that states cannot be sued for copyright infringement because they have “sovereign immunity.”



The opinion came down as part of a writ of certiorari regarding the case of Allen v Cooper. A writ of certiorari is basically a review of a lower court’s decision, and in this case, the Supreme Court has upheld the decision by the Court of Appeals for the Fourth Circuit, which decided that states are immune from copyright infringement lawsuits.

The case began in 2013, when videographer Frederick Allen sued North Carolina for using his videos of the salvage of Queen Anne’s Revenge, a shipwreck discovered off the North Carolina coast in 1998, without permission. The state claimed “sovereign immunity,” and though they initially lost this argument in the Eastern District of North Carolina, the US Court of Appeals for the Fourth Circuit reversed the ruling.

Allen appealed one final time, which is how we ended up with today’s decision by The Supreme Court. You can read the full opinion below:

In essence, the Supreme Court agreed with the Fourth Circuit, ultimately striking down the Copyright Remedy Clarification Act (CRCA) of 1990. This 30-year-old amendment to the Copyright Act of 1976 tried to strip states of their sovereign immunity where copyright was concerned, and it was at the core of Allen’s lawsuit.

If states can’t claim sovereign immunity to get out of copyright infringement, then North Carolina had no defense.

Unfortunately, the Supreme Court agreed with the Fourth Circuit, stating that Congress lacked the authority to take away State’s immunity in the CRCA, passing the buck back to Congress and giving states carte blanche to infringe with impunity (or, as it were, immunity).

The NPPA warned against this very outcome late last year, when they filed an amicus brief with the Supreme Court in this case.

“The decision, in this case, will ultimately determine whether states can be held liable for damages under the Copyright Act,” wrote the NPPA at the time, “or whether sovereign immunity clears the way for states to infringe with impunity everything from photographs to Hollywood movies.”

Now this warning has become harsh reality.

“We are extremely disappointed in the Court’s opinion as being another blow to photographers’ copyright protections,” Mickey Osterreicher, NPPA General Counsel, told PetaPixel earlier today. “While SCOTUS held that Congress ‘lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA,’ we are hopeful that at some point soon the Congress will appropriately address this inequity.”

That hope lies, primarily, with the big Hollywood studios, who have plenty of reason to get after Congress to make this right, and pass a version of the CRCA that strips states of their copyright immunity, without violating the constitution at the same time. “In the meantime,” says Osterreicher, “we worry that this ruling will only embolden states to further infringe the works of others.”

Works like Rick Allen‘s videos:

One shred of hope—a workaround if you will—does exist however. J. Michael Keyes, an intellectual property attorney and partner at the law firm Dorsey & Whitney, tells PetaPixel that photographers could still go after any third party that the state may have used to perpetrate the infringement.

“While states are immune from suit, others that may be involved in copying or reproducing the work at issue are not,” says Keyes. “For example, if a state uses the resources of a third party to copy or distribute the work at issues, those parties would still be potentially on the hook for infringement claims.”

Maybe this will give some photographers and videographers recourse—or keep states in line—while we wait for Congress to react to this ruling and address the issue properly.

Image credits: Photo by Joe Ravi, CC-BY-SA 3.0