Allen v. Cooper:: Can States Get Away With Everything Now?

by | Mar 24, 2020 | Legal, Strictly Business Blog

On March 23, the Supreme Court upheld the Fourth Circuit’s decision in a pivotal case for photographers and creators in Allen v. Cooper, holding that the Copyright Remedy Clarification Act (CRCA) “does not validly abrogate” Eleventh Amendment sovereign immunity. This essentially means that the CRCA does not protect creators from State infringers in a copyright infringement suit. Basically, a State may use sovereign immunity to avoid claims of infringement.

A word of warning: this is one of the more technical opinions you will read and is not easily boiled down into clear language. The bottom line is that this is a loss for photographers and creators. This case was important, however, and ASMP and NPPA drafted an amicus brief which went in front of the Justices fighting for the rights of all photographers. Unfortunately, the Court ruled otherwise.

The Holding

The Court found that neither Article 1 nor Section 5 of the Fourteenth Amendment allowed Congress to enact the CRCA. The CRCA was likened to the Patent Remedy Act (PRA), both of which extended the right of creators / patent holders to seek remedies against a State for infringement and bypass a State’s right to claim sovereign immunity in such contexts. Simply put, the Court held that Congress could not make the law that they made, and because of that, the law did not apply to the states.

The Facts

This case arose when a videographer, Frederick Allen, took part in documenting efforts to recover remains of the famous shipwreck, Queen Anne’s Revenge, off of the North Carolina Coast. Once Allen found out the state was using his photos and videos of the site without his permission, he sued the State for copyright infringement. North Carolina claimed sovereign immunity and Allen argued the CRCA prevented the state from such a protection in copyright infringement cases. Allen was correct in his argument, however, the Court determined Congress did not have the authority to enact such a law that removed the State’s sovereign immunity in such claims.

Queen Anne’s Revenge (Illustration from 1700s)

The Law

In order for a federal court to hear a suit against a nonconsenting State, Congress must (1) “have enacted unequivocal statutory language abrogating the States’ immunity from the suit” (as it did with the CRCA for copyright infringement), and (2) “some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty.” Under this requirement, Allen argued that the state of North Carolina could be held liable for copyright infringement either under Article 1, Section 8, Clause 8 of the Constitutions (the Intellectual Property Clause, which enables Congress to grant copyrights and patents) or Section 5 of the Fourteenth Amendment, which allows Congress to enforce Due Process. According to the Court, both of Allen’s contentions fail.

The Article 1 argument did not succeed because of a former Supreme Court case, Seminole Tribe v. Florida, which held Article 1 could not be used to circumvent a State’s sovereign immunity. Therefore, Congress could not “abrogate state sovereign immunity under Article 1.” The holding was used to prevent a similar intellectual property claim under the Patent Remedy Act in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank. Similar to the PRA, in this case the CRCA did not correctly allow Congress to override a State’s sovereign immunity for copyright infringement claims.

Allen’s Section 5 of the Fourteenth Amendment argument also failed even though the Amendment “can authorize Congress to strip the States of immunity.” However, this authorization cannot sweep too broadly. Similar to the Florida Prepaid case, where the PRA did not “confine abrogation to suits alleging nonnegligent infringement or infringement authorized by state policy,” but abrogated sovereign immunity for and every patent suit against States, the CRCA did the same for copyright infringement cases. This broad sweep that Congress took in an attempt to protect copyright holders swept too far and the Court determined that this stripping from State’s was not proportionally related enough to the constitutional wrong copyright infringement may cause.

Blackbeard (Illustration from 1700s)


Despite Allen’s defeat, artists should not lose hope! In the Court’s opinion, Justice Kagan suggests Congress is not prevented from passing a law that abrogates State sovereign immunity, despite the current unworkable framework of the CRCA. In essence, Congress would presumably have to follow the guidelines from this holding in enacting a law to protect artists without making the act so broad sweeping in abrogating a State’s sovereign immunity. In the meantime, artists must do all they can to protect themselves from situations such as these through the practice of contracting and doing everything they can to protect their work from unauthorized state and government use. As of now, such an infringement may be allowed given the current atmosphere from this holding.