A Pirate’s Shipwreck Allows Piracy in Supreme Court Case Through Sovereign Immunity

A Pirate’s Shipwreck Allows Piracy in Supreme Court Case Through Sovereign Immunity

Michelle Jong 

The government has always had a role to play in the strength and preservation of the arts. From cutting budgets for the arts to plainly denying artists ownership of their work, governments have undermined artists in these age-old conflicts. Copyright law moved away from this and paved a pathway for artists to stake interests, control, and ultimately, property rights, over their creations. So, what happens now when their rights conflict with the interests of the state?

In 1966, Intersal, Inc., a marine salvage company, uncovered the shipwreck of the Queen Anne’s Revenge, an 18th-century French slave ship famously captured by the pirate Blackbeard, which sank off the coast of North Carolina. Under federal and state laws, the discovered shipwreck belonged to the state of North Carolina who contracted with Intersal for recovery. Intersal then hired a videographer and photographer, Frederick Allen, to document this recovery. After doing so, Allen registered his photos and videos of the shipwreck for copyrights with the US Copyright Office. When North Carolina published some of these copyrighted videos and photos online without his consent, Allen protested. While initially, Allen and North Carolina settled for $15,000, Allen later complained that North Carolina had impermissibly posted another five of his videos online and used one of his photos in a newsletter. When North Carolina declined any wrongdoing, Allen brought this lawsuit. 

Under Title 17 of the US code, an owner of a copyright can control reproduction, derivative works, distribution, and performance of their copyrighted works. When Allen sued Intersal for using his copyrighted material without his permission, North Carolina countered that they could not be sued on the grounds of sovereign immunity. Preserved in the 11th Amendment, states have an exclusive immunity from being brought to court without their consent on the basis of their sovereignty. In Alden v. Maine, Justice Kennedy opined that this rule does not stem from the Constitution but is simply maintained by it, that “the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution” and is thus a rule that transcends the limitations of Congress. Allen responded that the Copyright Remedy Classification Act of 1990 (CRCA) amends Title 17 U.S.C. §501(a) to preserve the right to sue anyone who is an infringer of a copyright, where “anyone” is to be understood as including any “state” or “instrumentality of a state.” In limited instances, the Supreme Court has prevented state sovereignty from constraining federal “judicial authority.” In summary, Allen challenged North Carolina’s argument that it is immune from copyright lawsuits by virtue of a federal law that clearly says it is not.

However, laws are subject to review by courts and none of the justices in the Supreme Court were convinced by Allen. In a 9-0 decision, Justice Kagan penned an opinion that preserves North Carolina’s immunity from copyright lawsuits. This opinion invalidates the portion of the CRCA that places state governments on the same footing as private citizens when sued for copyright infringement. Kagan determined that the law’s “indiscriminate scope” is “out of proportion” to any due process problem. Here, Kagan is claiming that a statute that allows for a blanket right to sue states for any infringement would be far too broad and unconstitutional. So, the hope here is that Congress can address this issue again by passing a valid law that is more narrowly tailored. 

What does this mean for artists? Since the decision was based on the doctrine of sovereign immunity rather than the state’s legitimate property interest, regarding work made for hire, the entirety of the CRCA provision has been voided. This leaves individual artists vulnerable to the will of states in protecting their copyrights. It does not only apply to photography but also to other works of art whose copyrights might be infringed on by a state. In legal terms, this means that a copyright is not equivalent to an absolute right to exclude. For artists, this opinion indicates that artists should be very careful in entering contracts with state governments and to fully understand how vulnerable they are to state governments and the need to push Congress to re-legislate. 

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