Case No. 18-877 | 4th Cir.
Preview by Sean Wesp
The central question in this case is whether North Carolina (“the State”) can assert sovereign immunity against Allen’s claim that it infringed Allen’s copyright to his images of the wreck of Blackbeard’s ship, Queen Anne’s Revenge, under 17 U.S.C. § 501(a). In 1998, Allen and his production company, Nautilus Productions, LLC, obtained the exclusive right to document the salvage of Queen Anne’s Revenge, which was discovered in North Carolina. The State later copied Allen’s images and displayed them online. Allen sued the State in October 2013 and they settled; however, the State continued to use Allen’s images without his permission. The State later passed “Blackbeard’s Law,” which protected the State from suit for use of images of North Carolina shipwrecks. This case comes to the Supreme Court on appeal from the Fourth Circuit.
Allen first argues that the Intellectual Property Clause in Article 1 of the U.S. Constitution authorizes Congress to abrogate state sovereign immunity. Allen suggests that the grant of exclusive rights under the Intellectual Property Clause implicates the abrogation of sovereign immunity, because otherwise the right would no longer be exclusive. Brief for Petitioners at 24–25, Allen v. Cooper, No. 18-877 (U.S. filed Aug. 6, 2019). The State (Cooper) disagrees, pointing out that there was no plan to abrogate state sovereignty when the Constitutional Convention passed this clause. Brief for Respondents at 28, Allen v. Cooper, No. 18-877 (U.S. filed Sept. 20, 2019). The State distinguishes the history of the clause from that of the Bankruptcy Article, considered in Central Virginia Community College v. Katz, 546 U.S. 356 (2006), which was passed with the specific intent to curtail sovereign immunity of state creditors. Brief for Respondents, supra, at 17. There also exists a disagreement between the two parties on their understanding of precedent. Allen views the Katz decision as an open door to more abrogation of state sovereign immunity under Article 1 powers, while Cooper characterizes Katz as a narrow holding, tailored to the Bankruptcy Clause. See Brief of Petitioners, supra, at 2; Brief for Respondents, supra, at 27–28.
Allen alternatively argues that Congress properly exercised its power under Section Five of the Fourteenth Amendment to abrogate state sovereign immunity. A copyright is a property right and its infringement by a state brings up due process concerns under the Fourteenth Amendment, argues Allen. Brief of Petitioners, supra, at 18. Allen also points to a study done by the then–Register of Copyright, Ralph Oman (the “Oman Report”) as a factual predicate for Congress abrogating state sovereign immunity under the Copyright Remedy Clarification Act of 1990 (“CRCA”). Id. at 8–9. In Allen’s view, the Oman Report warns that states protected by sovereign immunity rampantly infringe copyrights. See id. at 47–48. Cooper characterizes evidence presented by Congress differently, calling it “a few anecdotal allegations of state infringement” that does not serve as a proper predicate to abridge state sovereign immunity. Brief for Respondents, supra, at 32–33. Focusing on the passing of the legislation, Cooper argues that Congress did not properly consider alternative remedies to states’ violations of copyright or the fact that the intention to infringe is not an element of copyright infringement. Id. at 33–34, 38.