The Supreme Court Rules That States Can't Be Sued for Copyright Infringement in Landmark Case, Free to Use Image as They Wish

The Supreme Court Rules That States Can't Be Sued for Copyright Infringement in Landmark Case, Free to Use Image as They Wish

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.”

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8 Comments

Charles Burgess's picture

What about the 4th and 5th Amendment to the U.S. Constitution? States cannot take away property (Copyright infringement is a property issue) without due process and their sovereign immunity is no protection when infringing. Imminent domain could be used, maybe, but even that requires payment for the property in question. Sounds like Frederick Allen's attorney may have not invoked issues relating to the 4th and 5th Amendment.

Kawika Lopez's picture

I hate this decision by the supreme court with every fiber in me, but unfortunately I don’t think the amendments you’re referring to are grounds for appeal.

They apply to the seizure of property. In the cast of infringement, it refers to the “copying” of a piece of work. If they tried to seize the actual rights to the property that would be different. Instead, they are just claiming they can’t be sued for copying the work.

States may be able to pass their own bills to regulate things like this on a state level much like now marijuana is still federally outlawed, but is regulated by certain states in order to permit them to certain degrees.

Charles Burgess's picture

It is an infringement, theft, of intellectual property (IP).

From my read of the OP, Frederick Allen's attorney argued from the point of the Copyright Remedy Clarification Act (CRCA). If Allen's attorney didn't also invoke the 5th Amendment (U.S. Constitution), the the SCOTUS ruling is good. Surely SCOTUS didn't intend to invalidate the 4th, 5th, and 14th Amendments in relation to property in any of its forms. All three address the right to due process before being deprived of life, liberty and property for any reason, not just criminal justice matters.

The claim that they are not stealing the work, only copying it, was the hacker's mindset, which did not hold up in court.

Kawika Lopez's picture

Hmm. I don’t believe copyright infringement equates to theft in the way your describing.

Look, I get that this is a huge problem and I want to find a plausible argument, but respectfully, I dont think intellectual property can be treated as physical property in a legal battle. They are highly distinguishable from each other.

An incredible decision giving the State the ability to steal your product. And people wonder why some have little to no respect for the government. Utter stupidity is about the best that can be said.

David Cannon's picture

If I’m understanding this correctly, this was a wise ruling by the Supreme Court. Almost all state tourism divisions contract agencies to provide/create content. If that agency steals content and provides it to their client, the state, then it’s better if the copyright holder can sue the agency. That way, the agency and its ownership has to carry the burden of paying the damages, versus all taxpayers of that state effectively having to foot the bill.

Jeremy Lusk's picture

But what’s to stop the states from simply trawling the interwebs for images and eliminating the middle man?

Charles Burgess's picture

I've just read the SCOTUS decision https://www.supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf where I do see that the 14th was invoked (the enforcement of 4th and 5th upon States). It seems that the legislative language in Copyright Remedy Clarification Act (CRCA) is the issue decided by SCOTUS.

Allen was hired to shoot the salvage of a shipwreck that was owned by the State of North Carolina. Normally usage rights are under contract and enforceable. I would like to see the underlying contracts to see how things went wrong. This is a very dangerous precedent for photographers.