Public Piracy of Private Property? Allen v. Cooper [Fourth Branch]
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Public Piracy of Private Property? Allen v. Cooper [Fourth Branch]


Can state governments use images without paying royalties to the creator? Frederick Allen is the exclusive photographer and
videographer of the Queen Anne’s Revenge, an 18th century shipwreck off the coast
of North Carolina. In 2013, he found the state was using his
footage on state websites without consent or compensation even though he
had federal copyright protection for the material. Allen and North Carolina ended
the dispute with a settlement agreement that the state pay him royalties for all
past usages, but the state continued to use the material without compensating
Allen and in 2015 the state passed a law, Blackbeard’s Law, which makes all photographs and video of shipwrecks a
public record available for unlimited free use. In the dispute now before the
Supreme Court, Allen alleges that the law violates the
Takings Clause and the Due Process Clauses of the Constitution. The case
centers around compensation for an alleged intellectual property violation
and regulatory taking, but there’s more. State governments enjoy a privilege
called sovereign immunity under the Eleventh Amendment, which shields them
from lawsuits. In 1990, a federal law, the Copyright Remedy Clarification Act, or
CRCA, attempted to carve out an exception to sovereign immunity for
copyright violations. According to the statute, state governments and officials
are not exempt from lawsuits relating to copyright infringement. In the dispute
now before the Supreme Court, the state of North Carolina argues that the 2013
settlement agreement does not revoke sovereign immunity. Allen argues that the
defendants explicitly named are state officials and, according to CRCA, are not
covered by sovereign immunity for copyright infringement. The lower court
found for Allen. The United States Court of Appeals for the Fourth Circuit,
however, held that the Copyright Remedy Clarification Act does not validly
withdraw Eleventh Amendment immunity, upholding the state of North Carolina’s
claim. Now this very important case involving due process, piracy, state
sovereignty, and federalism is before the Supreme Court to decide: can state agency
officials use video or photography materials without regard to due process
or the rights of the copyright owners? Are individuals at these agencies able to
violate federal copyright protection in the name of state sovereign immunity?

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