In a rare case invoking the original jurisdiction of the Supreme Court over individual states, a filmmaker is asking the U.S. Supreme Court to rule that he can sue North Carolina for using his footage of a famous pirate shipwreck, warning that artists are “helpless as states continue to trample federal copyrights.” At stake is a judicial revival of the Copyright Remedy Clarification Act, a 1990 statute that aimed to allow copyright owners to sue states for infringement.
The Fourth Circuit ruled last year that the Act violated the Eleventh Amendment by improperly revoking state sovereign immunity, but the filmmaker argues that the Constitution’s intellectual property clause gave Congress that right.
Frederick Allen and his Nautilus Productions sued in 2015 after North Carolina refused to stop using his footage of the Queen Anne’s Revenge — the flagship of the famed pirate Blackbeard that ran aground in North Carolina. Theoretically, the CRCA gave him the right to do so. While the Eleventh Amendment gives states broad sovereign immunity, the CRCA aimed to “abrogate” that immunity to allow copyright infringement cases against states.
The Fourth Circuit said last year that Congress lacked the authority to pass a statute trumping the Eleventh Amendment the way the CRCA aimed to, the latest of several jurisdictions to issue such a ruling. The statute has been invalidated enough times that the U.S. Department of Justice no longer defends it.
Allen argues that Congress does in fact have that authority — thanks to the Constitution’s specific instruction that lawmakers could write federal laws that protect intellectual property. Article I, Section 8, Clause 8 of the Constitution, commonly thought of as the “Patents and Copyrights Clause” states that “[The Congress shall have power] ‘To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Allen argues that the Patent and Copyright Clause means that States surrendered their immunity from copyright liability as part of the plan of the Constitutional Convention and that there could be no “secure” or “exclusive” right for holders of intellectual property if any infringer, even a government entity, could infringe without penalty.
BUSINESS TAKE AWAY: Not much – yet. Copyright remains one of the strongest and most accessible routes for businesses to protect their intellectual property. If successful, the action to set copyright above state sovereign immunity would be a big step forward in strengthening copyright law even further.