In a ruling sure to irritate US-based photographers, the Supreme Court of the United States has now ruled to protect states against legal action relating to copyright, citing their “sovereign immunity” as the reason.
The decision came after the case of Allen v Cooper, in a review of the lower court’s decision. The Supreme Court backed up the original ruling of the Court of Appeals for the Fourth Circuit, who had concluded that states cannot be sued for copyright infringement.
There have been many examples of such a situation, whereby tourism boards for a particular state have used a photographer’s image without permission. In this particular case, Frederick Allen found his videos of a shipwreck off the North Carolina coast were being used by the state, who later used the excuse of “sovereign immunity” as a defense. The state lost firstly, before having the ruling reversed by the US Court of Appeals for the Fourth Circuit. After Allen challenged it, matters advanced to the Supreme Court.
A large part of Allen’s defense referred to 1990’s Copyright Remedy Clarification Act (CRCA), which aimed to invalidate states from claiming sovereign immunity in the case of copyright. However, the Supreme Court sided with the Fourth Circuit on the basis it felt Congress had no position to dictate a state’s immunity in the CRCA law.
The NPPA commented on the case last year:
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.
Speaking to PetaPixel, attorney J. Michael Keyes reveals suing a third party that the state “may have used to perpetrate the infringement,” may be a way of getting around the ruling:
“While states are immune from suit, others that may be involved in copying or reproducing the work at issue are not. 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.”