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Supreme Court Copyright Infringement Case

Supreme Court Takes on Copyright Infringement

The Supreme Court of the United States (SCOTUS) has agreed to hear the case of Frederick (Rick) Allen, well known filmmaker and photographer. According to Eriq Gardner in his article for the Hollywood Reporter, SCOTUS will determine if the doctrine of Sovereign Immunity protects states from copyright infringement lawsuits and prevents congress from drafting laws to the contrary. The case, titled Allen v. Cooper, is on the court’s calendar for November 5, 2019.

Allen Filmed and Photographed Salvaging of Pirate Ship: Queen Ann’s Revenge

Allen’s company, Nautilus Productions, is pursuing the state of North Carolina (NC) and its Department of Natural and Cultural Resources (DNCR) for posting online videos Allen took of Queen Anne’s Revenge (QAR). QAR is Blackbeard’s pirate ship, which ran aground on the coast of North Carolina in 1718. A private research firm discovered the wreck in 1996. In 1998, Allen shot video and took photographs of the process of salvaging the wreckage. He registered his work with the United States Copyright office.

North Carolina Allegedly Used Photographers Copyrighted Work Without Permission

In 2013 when the DNCR first posted some of Allen’s video of the shipwreck on its website, the parties came to a mutual settlement. NC paid damages to Allen for the copyright infringement, and took the video off the site. Shortly thereafter, the DNCR posted several “short videos and one photograph” from the recovery expedition. Allen subsequently filed a lawsuit against NC and DNCR for copyright infringement.

North Carolina Passed Blackbeard’s Law

After Allen filed his lawsuit, NC passed Statute 121-25(b) which Allen calls “Blackbeard’s Law.” This law “treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record.” It would follow, therefore, that NC’s use of Allen’s photographs and videos of QAR would not require permission from or compensation to the copyright holder. Allen’s videos and pictures of the expedition would be public record, usable by anyone.

The Photographer and State Have Opposing Views on Sovereign Immunity

Allen argued that the statute violated the due process clause of the constitution. The state held the position that the 11th amendment gave NC immunity from being the defendant in any federal lawsuit, despite the existence of the federal Copyright Remedy Clarification Act (CRCA). The CRCA grants citizens the right to file copyright suits against the government. The lower court agreed with Allen. On appeal, however, the court ruled in favor of NC.

Supreme Court Grants Cert to Photographer in Copyright Infringement Case

Allen petitioned SCOTUS for certiorari convincing them to address the confusion surrounding state sovereignty under the 11th Amendment and congress’s duty to protect the intellectual property rights of its citizens. Allen’s camp stated “The Constitution of the United States of America expressly empowers Congress to grant copyright holders ‘the exclusive right to their respective writings and discoveries.’ We look forward to making our case to the Supreme Court as to why it was within Congress’s constitutional authority to hold states liable for their acts of copyright infringement.”

SCOTUS Will Determine Validity of the Copyright Remedy Clarification Act

The US congress passed the Copyright Remedy Clarification Act (CRCA). The US Congress passed this law in the early 1990s. The CRCA effectively eliminated state sovereign immunity in cases involving intellectual property. The CRCA made it possible for private citizens to sue a state for violations of copyrights and other IP law. However, several cases over the years that arose under the CRCA, including Allen’s left its constitutionality up in the air.

Copyright Supporters Rally Behind Allen

More than a dozen organizations or individuals have filed briefs in support of Allen’s case urging SCOTUS to reinvigorate the rights bestowed by the CRCA. In one amicus brief filed by the music lobbying group The Recording Industry Association of America stated that under the ruling of the fourth circuit, “”States are once again free to engage in copyright infringement — no matter how widespread or blatant — without fear of having to pay any money as a result,” stated the amicus brief. “Unsurprisingly, then, despite Congress’s efforts, copyright infringement by States is once again a very serious problem.”

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Call the Sanders Law Group if you are a photographer who needs help enforcing your copyright or other intellectual property rights. You can reach our lawyer who handles copyright matters around the globe at 888-348-3090. Call today for a free consultation.


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