What We're Reading: State Copyright Plunder is Bad and Getting Worse

By David Schonauer   Wednesday September 22, 2021

There’s a copyright heist going on.

The culprit: state governments that, writes Kevin Madigan at Real Clear Policy, “have run roughshod over copyright protections to simply take these items. And they’re getting away with state-sponsored larceny, abetted by an obscure legal doctrine called sovereign immunity.”

“Sovereign immunity was established by the 11th Amendment to ensure state governments didn't face a constant barrage of lawsuits by citizens of another state or foreign states,” adds Madigan, vice president of the Legal Policy and Copyright Counsel at the Copyright Alliance. Madigan notes that over the two hundred plus years since it’s ratification, the amendment has been broadly interpreted to include immunity from a wide range of suits brought by a states’ own residents, including copyright claims.

The result, he says, has been outrageous abuse of Sovereign Immunity protection. He cites a number of examples—including the case of photographer Jim Olive, who in 2005 took a series of spectacular photos of the Houston skyline while suspended from a helicopter. University of Houston administrators posted one on their website without any attribution “and then allowed it to be used by major news outlets, including Forbes magazine, notes Madigan. When Olive demanded officials remove the photo, they did. But when he demanded fair compensation, he was offered a laughably small sum. Olive took the matter to court “but his but his efforts to hold the University accountable have been stymied by sovereign immunity,” notes Madigan.

Congress tried to rein in Sovereign Immunity abuses with the Copyright Remedy Clarification Act of 1990, eliminating state sovereign immunity protections for copyright violations. However, notes Madigan, the Supreme Court invalidated the CRCA in copyright case brought by a North Carolina filmmaker against the state over footage of a pirate ship salvation operation. The justices believed their hands were tied by past precedent, Madigan notes.

“The need for change is only growing more urgent because instances of infringement by state entities is on the rise,” he adds.

Meanwhile, The Art Newspaper reports an update in the case of the North Carolina filmmaker, Rick Allen. Backstory: In the 1990s, Allen filmed the salvaging operation of an 18th century pirate ship that had run aground at Beaufort, North Carolina in 1718. “Almost 20 years later, the State of North Carolina took one of Allen's still images and videos and posted them on its tourism website and social media pages. The state justified its actions by claiming Allen’s photographs, video recordings and other documentary materials were ‘public record,’” notes TAN. North Carolina also claimed Sovereign Immunity protection.

Allen’s claims of copyright infringement against that state, seemingly quashed by a the US Supreme Court ruling, have been revived, according to TAN. “In an 18 August decision, a North Carolina district court ruled that the high court did not consider whether the actions of the state violated the filmmaker’s constitutional rights under the 5th and 14th amendments, which protect property rights and due process,” notes the newspaper.

“As precedence, Allen is using a 2006 Supreme Court ruling that the treatment of a disabled prisoner in a Georgia lock-up represented a violation of his constitutional rights under the 8th (“cruel and unusual punishment”) and 14th Amendments, sovereign immunity notwithstanding,” notes TAN.

“What the Supreme Court ruled in 2006 is that you can override sovereign immunity when it violates someone’s constitutional rights,” Ernest Young, a professor of law at Duke University Law School, tells TAN.


No comments yet.

Sign in to leave a comment. Don't have an account? Join Now

Pro Photo Daily