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In 1710, during the reign of Queen Anne, Great Britain’s Parliament enacted the statute that gave rise to copyright as we know it—the Statute of Anne—which was the first statute to declare that the subject matter of copyright would be regulated by the government and the courts, rather than agreements between private parties. Seven years later, the English pirate Blackbeard captured a French merchant vessel, renamed her the Queen Anne’s Revenge, and soon after ran her aground off the coast of North Carolina. As demonstrated by the recent Fourth Circuit decision in Allen v. Cooper, Blackbeard’s choice of the ship’s name proved prophetic.

In that case, the Fourth Circuit was tasked with deciding whether the company that recently discovered and salvaged the wreck of the Queen Anne’s Revenge off the coast of North Carolina could sue North Carolina and various of its state officials for copyright infringement when North Carolina posted some YouTube videos and pictures of the salvage operation that contained what were admittedly the plaintiff’s copyrighted videos and images. The plaintiffs even had two contracts with North Carolina in which North Carolina had agreed that the plaintiffs would have the “exclusive right” to produce and profit from videos about their salvage project (although North Carolina did require the plaintiffs to make their raw footage and photographs available to North Carolina, reserved the right to use them for educational purposes, and warned the plaintiffs that any materials provided would become public records). Had the plaintiffs been suing a private actor, the case for infringement (and damages or injunctive relief) would have been straightforward. But as was true in Queen Anne’s reign, and is still true now, the sovereign is immune from suit except in limited circumstances, which sovereign immunity (at least for states) is enshrined in the Eleventh Amendment to the United States Constitution.

But Article I of the Constitution also gives Congress the authority to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (i.e., to grant copyrights). And pursuant to that Constitutional authority, Congress enacted the Copyright Remedy Clarification Act in 1990, which provides that States and state officers “shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under other doctrine of sovereign immunity, from suit in Federal court by any person . . . for a violation of any of the exclusive rights of a copyright owner provided by [federal law].” So plaintiffs should have had the wind at their backs in suing the State and its officers for copyright infringement.

The Fourth Circuit scuttled that notion, and found that Congress itself was the outlaw in passing a statute purporting to abrogate the State’s sovereign immunity because “Congress cannot rely on the enumerated power in Article I over copyright to compel a State to litigate copyright cases in a federal court.” In doing so, the Fourth Circuit joined a growing list of federal courts that have held the Copyright Remedy Clarification Act to be unconstitutional.

So to review: (1) copyright claims can only be brought in federal court, (2) states cannot be sued without their consent in federal court, so (3) plaintiff’s copyright claims are dismissed. As we have noted here before with respect to trade secrets, it can be dangerous for any rights holder to deal with the government as it would a private party. As Mel Brooks sagely noted, “It’s good to be the King!”

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