The U.S. Supreme Court says sovereign immunity protects state governments from copyright infringement lawsuits and has decided that it is OK for U.S. states to grab any photo they can find and use it without notifying or compensating the creator.
The specific case that brought the matter to the nation’s highest court was filed by Rick Allen, an independent film producer and director in Fayetteville, North Carolina, who in the 1990s filmed the salvaging of the Queen Anne's Revenge, the flagship of the pirate Blackbeard, that had run aground at Beaufort, North Carolina in 1718. Almost 20 years later, the State of North Carolina decided to post one of Allen's still images and videos on its tourist promotion web site and social media pages without asking permission or providing any compensation.
Allen complained of the state’s action in 2015, but the North Carolina state legislature enacted a law that treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record,” permitting the state to make use of Allen's copyrighted material without having to obtain his permission or make any payments to him. (See our
previous story)
Other states have done the same, justifying clear cases of infringement by pointing to the 11th Amendment to the US Constitution. (See
Jim Olive’s case against the state of Texas.)
In the Supreme Court’s published opinion, written by justice Elena Kagan, the court found that Congress had overstepped its authority when passing the 1990s act because it too broadly overturned states’ sovereignty, but allowed that Congress could pass a new law with a more limited scope. “That kind of tailored statute can effectively stop States from behaving as copyright pirates,” Kagan writes. “Even while respecting constitutional limits, it can bring digital Blackbeards to justice.’
Lawyers specializing in intellectual property say that the decision was not unexpected and that artists could protect their rights from reckless infringement by states if Congress redrafted the Copyright Remedy Clarification Act.
Allen said. “It’s open season on intellectual property owners now.”