SCOTUS Holds States Immune From Copyright Lawsuits

The Supreme Court ruled Monday that states are immune from copyright lawsuits, in an opinion delivered by Justice Elena Kagan.  The case involves the discovery of the shipwreck of legendary pirate ship Queen Anne’s Revenge, and North Carolina’s distribution of video documenting the salvage.

In 1996, Intersal Inc., a marine salvage company, discovered the shipwreck of Queen Anne’s Revenge off the coast of North Carolina.  The ship was best known as the flagship of notorious pirate Blackbeard.  North Carolina was the legal owner of the shipwreck. Intersal, contracted by North Carolina for the recovery, themselves hired Frederick Allen, a videographer, to capture the recovery efforts. Allen registered copyrights for his work, which occurred over a ten-year period. North Carolina published some of Allen’s videos and photographs online, after which Allen sued the state for copyright infringement, as he did not give permission to publish nor was compensated for the publication.

North Carolina moved to dismiss the lawsuit on grounds of state sovereign immunity. Allen responded by referring to the Copyright Clarification Act of 1990 (CRCA), which he argued “removed the States’ sovereign immunity in copyright infringement cases.” The district court favored Allen, but the Fourth Circuit reversed this decision and statutory interpretation. The Fourth Circuit held that “Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA.”

Justice Kagan was joined by six other Justices; Justice Clarence Thomas joined in part, and Justice Stephen Breyer joined by Justice Ruth Bader Ginsburg concurred.  The opinion stated “[i]n two basically identical statutes passed in the early 1990s, Congress sought to strip the States of the sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsecondary Ed. Expense Bd. V. College Savings Bank, 527 U.S. 627 (1999), that the patent statute lacked a valid constitutional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion.”

Kagan agreed that the shipwreck from 1718, though discovered by Intersal in 1996, belongs to the state of North Carolina. The Court held that Allen’s argument, claiming that the CRCA formally invalidated state sovereignty immunity was foreclosed in the Florida Prepaid decision. In Florida Prepaid the Court stated that the Patent Remedy Act of 1990, which was established at the same time as the CRCA, did not abrogate state sovereign immunity. Florida Prepaid held that Congress was not able to abrogate sovereign immunity with its powers under the Intellectual Property Clause of the Constitution, invalidating the statute. Since Congress cannot abrogate for patents, it also cannot abrogate for copyrights by the same reasoning.

Allen then countered that the Court’s decision in Central Va. Community College v. Katz held that the Constitution’s Bankruptcy Clause allows Congress to hold states accountable in bankruptcy cases, thus states are not immune from suit. However, Justice Kagan noted that this falls under “bankruptcy exceptionalism” because of “the ‘singular nature’ of bankruptcy jurisdiction.” The Court concluded that Allen failed to provide the necessary “special justification” for the court to overrule the Florida Prepaid precedent.

In the alternative, Allen argued that Section 5 of the Fourteenth Amendment allows Congress to abrogate States’ immunity from suit. The Fourth Circuit held that “congressional abrogation is valid under Section 5 only if it sufficiently connects to conduct courts have held Section 1 [of the Fourteenth Amendment] to proscribe.”

Allen was represented by Quinn Emanuel Urquhart & Sullivan.