When the US Supreme Court ruled earlier this year in Allen v. Cooper, the outcome for an unusual copyright infringement case left many IP creators dismayed, though it may have pleased Blackbeard the pirate.
Interview with Keith Kupferschmid & Rick Allen
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In March 2020, a unanimous SCOTUS ruling held that Congress lacked authority to abrogate state’s sovereign immunity from copyright infringement suits in the Copyright Remedy Clarification Act of 1990 (CRCA).
When Congress passed the Copyright Remedy Clarification Act, it was responding to pressure from filmmakers like Rick Allen – as well as movie studios, software companies, and many other IP stakeholders – who said states were abusing sovereign immunity to avoid paying licensing fees. An underwater videographer, Allen sued the State of North Carolina when he’d learned it was using his exclusive footage showing the wreckage of Blackbeard’s flagship vessel without his permission. Allen cited the CRCA, which was passed expressly to prevent such infringements. Nevertheless, the state argued that sovereign immunity shielded it from any such claims.
“I think what was frustrating for me is that as an intellectual property holder, I followed every statute and law that was required of me,” Allen tells CCC’s Chris Kenneally. “I registered my copyright. I created the work. And I’ve defended my copyright over the years to my work. So there’s nothing else legally or by statute that I could have done to protect my intellectual property, and yet I’m still left here with no remedy and no way to deal with copyright infringement by the State of North Carolina.”
The Copyright Alliance filed a friend of the court brief in the SCOTUS case and is now urging IP owners to make their views known to an ongoing US Copyright Office study on the subject, explains Alliance president and CEO Keith Kupferschmid.
“I think what’s particularly interesting here, and also certainly in the patent context, is that states – under this holding in Allen v. Cooper, states cannot be liable for infringing the work of another copyright owner, but they can sue you if you were to infringe their copyrighted work. You can sense the imbalance there, right? They get rights, and they can enforce those rights, but you cannot enforce your rights against the states. There’s really an inequity.
