Supreme Court May Send Creator’s Claim To Davy Jones’ Locker

By Alec Schulman

Copyright. The Constitution. A sunken pirate ship. The Supreme Court.

On Monday, June 3, 2019, the Supreme Court chose to hear a case involving a copyright infringement claim brought by a videographer against the state of North Carolina for publishing the plaintiff’s footage and photographs without the plaintiff’s permission. The subject of those videos and photographs?  Blackbeard’s sunken pirate ship. In short, the State of North Carolina published the videographer’s work on the internet without the author’s consent. In 2013, the parties had seemed to reach a settlement under which North Carolina would cease infringing the plaintiff’s work. However, North Carolina allegedly resumed infringing the plaintiff’s copyrights by publishing and/or displaying various works in violation of the agreement.

To understand why this case merits the attention of the Supreme Court, we must go back a few years and discuss the legal theories underpinning the parties’ arguments.  In 2015, the plaintiff brought claims against the State, including one for copyright infringement. North Carolina responded by filing a motion to dismiss, maintaining that it was shielded from suit in federal court by sovereign immunity.  The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”   The Supreme Court has further held that States enjoy immunity in state court from suits based on federal law. However, the Supreme Court has long held that federal courts may enjoin state officials from violating federal law.

Now this is where things get interesting.  In 1990, Congress enacted the Copyright Remedy Clarification Act. That Act provides:

Any State [. . .] acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person … for a violation of any of the exclusive rights of a copyright owner provided by [federal copyright law]. 

17 U.S.C. § 511(a).

After reading this provision, you may be asking yourself, “doesn’t that act completely contradict the purpose and intent of the Eleventh Amendment?” It may!However, there have been other instances in which the Supreme Court has held that Eleventh Amendment sovereign immunity must give way to other Constitutional principles, such as State violations of the Fourteenth Amendment.  Here, Congress invoked Article I’s Patent and Copyright Clause in enacting the Copyright Remedy Clarification Act.  In the case of Seminole Tribe of Fla. v. Florida, the Court made it clear that Congress cannot rely on its authority under the Commerce Clause to abrogate  Eleventh Amendment immunity.  Although the Copyright Clause is distinct from the Commerce Clause, the Fourth Circuit elected to apply Seminole Tribe, and bar the plaintiff’s copyright claim against North Carolina.

According to the plaintiff, if the Supreme Court sides with North Carolina, “creators of original expression will be left without remedy when States trample their federal copyrights.” He may well be right.  We will keep you posted on further developments.