Supreme Court Decides North Carolina Is Immune from Filmmaker's Copyright Suit

Rick Allen's Nautilus Productions said his footage of an 18th century pirate ship was posted online without permission. But he can't beat sovereign immunity enjoyed by states from copyright lawsuits.
NCDOTcommunications/CC BY 2.0

Copyright holders may have to worry about state infringers who pirate their works — and get away with it. That's because on Monday, the Supreme Court held that under the U.S. Constitution and without further action by Congress, states are immune from copyright suits in federal court.

Rick Allen's Nautilus Productions was challenging that same assessment from a lower appellate court. Allen had documented the efforts to salvage the remains of Queen Anne's Revenge, an 18th Century ship led by the notorious pirate Blackbeard. Allen's company took video and still images and registered these works with the U.S. Copyright Office. Allen accused North Carolina of posting some of these images on its website. North Carolina came to a settlement agreement with Allen, but after taking the images down, the North Carolina Department of Natural and Cultural Resources then posted video. In response to Allen's subsequent lawsuit, state lawmakers passed a statute treating all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as "public record."

An annoying situation for Allen, but could he do anything about it?

Under the Eleventh Amendment to the U.S. Constitution, federal courts are prohibited from entertaining lawsuits from citizens. Congress may attempt to abrogate such immunity but it must do so under delineated authority. In the early 1990s, Congress attempted to abrogate states' immunity from intellectual property suits, but in 1999, in Florida Prepaid v. College Savings Bank, the Supreme Court held that Congress couldn't justify its attempt to force states into federal court for patent infringement under Article I of the Constitution.

Today, led by Justice Elena Kagan, the high court comes to the conclusion that the two-decade-old decision dooms Allen's arguments. The latest opinion not only amounts to a victory for states and a new worry for copyright owners expressing concern about being victimized by government, but also for stare decisis, the principle that precedence should be upheld except under the most unusual of circumstances. 

Allen pointed to a more recent abrogation decision by the Supreme Court — Central Virginia Community College v. Katz (2006) — but Kagan writes this reflected "bankruptcy exceptionalism." Unfortunately for Allen, intellectual property owners don't enjoy the same benefits because of the place that bankruptcy commands in history and federal jurisdiction.

Read the opinion here. (Several justices also wrote concurring opinions.)

There's also the matter of the 14th Amendment, specifically the ability of Congress to make states comply with civil rights guarantees like equal protection and due process.

"When does the Fourteenth Amendment care about copyright infringement?" asks Kagan. "Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from 'depriv[ing]' a person of property 'without due process of law.' But even if sometimes, by no means always. Under our precedent, a merely negligent act does not 'deprive' a person of property. So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. And more: A State cannot violate that Clause unless it fails to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of 'due process.'”

Kagan ends her opinion with a hint that future abrogation activity by federal lawmakers may not be hopeless on the intellectual property front. She writes that when Congress first attempted to do so back in 1990 (before these Supreme Court cases followed), "Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries — and of creating a legislative record to back up that connection."

"But going forward, Congress will know those rules," she adds. "And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice."

In a statement, Allen said he was saddened by decision.

"Today, under this Supreme Court ruling, writers, software developers, composers, film-makers and other creators, just like me, cannot avail themselves of the protection Congress gave them from copyright infringement by states," he said. "We are saddened by the court’s decision. The state of North Carolina routinely and vigorously enforces its own copyrights, yet simultaneously hides behind sovereign immunity when it violates the intellectual property rights of its own citizens. The Constitution and Congress of the United States of America call for a different result."