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What We Learned This Week: SCOTUS Rules States Cannot be Sued for Copyright Infringement

By David Schonauer   Friday March 27, 2020


Coronavirus wasn’t the only photo news this week.

On Tuesday we learned that the US Supreme Court ruled that a videographer who spent two decades documenting the salvaging of Blackbeard's pirate ship cannot sue the state of North Carolina in federal court for using his videos without his permission.

The ruling was a victory for states claiming immunity from copyright infringement lawsuits, noted NPR, and, added The Art Newspaper, a blow to artists, particularly photographers and writers whose images and words may be used by state government offices, such as tourist bureaus.

The case had its beginnings with the 1996 discovery of the sunken remains of a French slave ship captured by the infamous pirate Blackbeard in 1717, and renamed by him The Queen Anne's Revenge. The vessel eventually sank off the coast of North Carolina, and under federal and state law, the discovered remains belonged to the state, noted NPR. North Carolina hired a salvage company for a recovery operation, and that company hired videographer Frederick Allen to document the work, which he did for two decades — “all the while,” added NPR, “copyrighting his work so that it could not be used without his permission.”

The state of North Carolina, however, posted some of Allen’s photos online, without his permission and without paying him royalties. “In 2013 the state paid Allen $15,000 for one such infringement, but its violations persisted. Ultimately Allen sued in federal court for copyright infringement,” reported NPR.

The state claimed it was immune to such suits because over the last quarter century the Supreme Court has ruled that in general individuals cannot sue sovereign states without their permission in federal court. “[T]hough they initially lost this argument in the Eastern District of North Carolina, the US Court of Appeals for the Fourth Circuit reversed the ruling,” noted PetaPixel. Allen appealed to the Supreme Court.

“The high court’s ruling resolved a conflict between a 1990 federal statute called the Copyright Remedy Clarification Act, which opened up state governments to copyright infringement lawsuits, and the 11th amendment to the US Constitution, which restricts private citizens from suing states,” notes The Art Newspaper. In an opinion written by justice Elena Kagan, the Supreme Court found that Congress had overstepped its authority when passing the Copyright Remedy Clarification Act because it too broadly overturned states’ sovereignty. But the ruling allowed that Congress could pass a new law with a more limited scope.

“We are extremely disappointed in the Court’s opinion as being another blow to photographers’ copyright protections,” Mickey Osterreicher, NPPA General Counsel, told PetaPixel. “While SCOTUS held that Congress ‘lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA,’ we are hopeful that at some point soon the Congress will appropriately address this inequity.”

Here are some of the other photo stories we spotlighted this week:
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1. What We're Buying During for the Quarantine

At supermarkets across New York City, shoppers have thronged the aisles, some anxiously provisioning for weeks of bunkering at home, others simply (and, perhaps, defiantly) going about their normal routines, noted The New Yorker, which quizzed a number of shoppers about what they’re buying (and how they’re behaving) during the coronavirus quarantine. Accompanying the interviews were photographs by Dina Litovsky, who hit the streets, from a Trader Joe’s in Union Square to the Park Slope Food Co-Op in Brooklyn and a Target in East Harlem.


2. Twelve Female Surf Photographers You Should Follow

Women worldwide are making their mark in all areas of surf photography, noted Surfer magazine, which recently put together a roundup of a dozen standout female surf photographers and filmmakers. The list includes Oahu, Hawaii, photographer Amber Mozo (photo above), whose advice to aspiring female photographers is this: “Don’t compare yourself or your art to anyone else ever. That’s just rubbish. Everyone has a story to tell; photography is so beautiful because it allows people to express themselves.”


3. Documenting Life in the Ozarks

With the closure of many local newspapers, there has also been a diminishing amount of coverage of the communities they served. Photographer Terra Fondriest is committed to help fill the gap in her community by telling the stories of life in the Ozarks, noted The Washington Post. “Far from the larger coverage of international and national events, Fondriest’s work takes us into the daily lives of people,” noted The Post. Fondriest’s work is one of the winners of a photo essay competition organized by The Post and Visura.


4. Steve Korn Focuses On the Stories That Faces Tell

Faces are faces. But, we noted yesterday, they are also narratives. "It is easy to assume much about a stranger, judge them by any number of things, from clothing to hairstyle and makeup, ethnicity, expression and so on. We often look at an unfamiliar face and create a narrative in our mind of who that person is, if they are smart or not, what they might believe, any number of things," says Seattle-base photographer and PPD reader Steve Korn, whose ongoing "Face Project" explores the idea of photographic authenticity and the ways we perceive each other.


5. Boris Yaro, Who Took Iconic Photo of Wounded RFK, Dies at 81

As Robert F. Kennedy was leaving the Ambassador Hotel on June 5, 1968, following his victory in that year’s California Democratic Presidential primary, a part-time Los Angeles Times photographer, working on his own time in hopes of catching a shot for his wall, followed. The photographer, Boris Yaro, ended up making one of the century’s most celebrated images—a photo of Kennedy lying on the floor of the hotel’s pantry after being shot by Sirhan B. Sirhan. Yaro, who worked for the newspaper for some 40 years, died on March 11 at age 81.
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At top: From Dina Litovsky

2 Comments

  1. Richard Peterson commented on: March 27, 2020 at 12:53 p.m.
    Sad day for our creative works! I hope this isn’t the beginning of the end of copyright protection. This is a real blow against the American people.
  1. D. Lindemann commented on: March 27, 2020 at 2:49 p.m.
    THIS IS AN OUTRAGE! WHAT RIGHT DOES THE FEDERAL, STATE OR LOCAL GOVERNMENT HAVE TO CO-OP THE COPYRIGHT OF AN ARTIST? IF YOU ARE EMPLOYED BY A GOVERNMENT AGENCY OR BUREAU AND ON ASSIGNMENT BY THAT ENTITY YOUR WORK DOES BELONG TO THEM. OTHERWISE, THE RATIONALE THAT WOULD ALLOW THEM TO STEAL A PERSON'S INDIVIDUAL COPYRIGHT, OWNERSHIP AND THEN USE THAT WORK FOR THEIR OWN PURPOSE IS NOTHING SHORT OF ROBBERY.

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