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Apr 2020
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April 30, 2020

Supreme Court Redraws the Boundaries of Copyright Law for State Governments and Agencies

Within the past month, the U.S. Supreme Court issued two separate decisions in copyright cases involving state governments and agencies. The combined effect of these rulings was to both expand and reduce the protections that copyright law offers universities, colleges, agencies and other state entities. Leaders of these institutions should review the cases carefully and assess how they impact operations.

First, in Allen v. Cooper, the court completely shielded state governments from liability for infringing the copyrights of others. The case arose from the discovery of Blackbeard’s flagship, Queen Anne’s Revenge, off the North Carolina coast. Frederick Allen and his company, Nautilus Productions, filmed the shipwreck and registered copyrights for the videos and photos that they created. The state of North Carolina then infringed their copyrights by posting unauthorized copies of an independent documentarian’s copyrighted videos to its state-owned website. The state admitted what it had done, but argued that the Copyright Remedy Clarification Act of 1990—which had completely abrogated the states’ sovereign immunity with respect to copyright infringement—was unconstitutional.

The Supreme Court unanimously agreed, holding that Congress did not have the authority to subject states to federal lawsuits for copyright infringement. The justices recognized that the result of their ruling was to give states a free pass to infringe. “One might think,” wrote Justice Breyer, that a film studio “could sue a State ... for hosting an unlicensed screening of the studio’s [films]. Yet the Court holds otherwise.” For this reason, the court encouraged Congress to pass a revised law to “effectively stop States from behaving as copyright pirates.” Until Congress does so, however, there is no clearly defined legal mechanism for holding states liable for copyright infringement.

Second, in Georgia v. Public.Resource.Org, a sharply divided Supreme Court limited the state of Georgia’s ability to obtain copyright protection in their own works. (One of Warner’s own attorneys participated in this case by authoring an amicus curiae brief in support of the winning side.) Georgia’s legislature had commissioned the creation of annotations that explained and interpreted its statutory laws, then published those annotations in an official State Code. Although all parties agreed that no one can own a copyright in the law itself, the state claimed copyright protection in the annotations.

The Supreme Court majority disagreed, upholding a lower court ruling that the annotations were “government edicts” and ineligible for copyright protection. Although the government edicts doctrine is over a century old, the most important aspect of this decision was to clarify how to define a “government edict.” Whereas some courts had defined an “edict” as a ruling having the force of law—like a statute, regulation, or judicial ruling—the Public.Resource.Org Court looked to the identity of the author. The rule of the case is that “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Therefore, state agencies that are accustomed to claiming copyright in state-authored materials because they are not legally binding need to re-evaluate that stance based on who authored the works.

Warner’s Intellectual Property and Litigation Practice Groups and its Higher Education Industry Group attorneys are intimately familiar with the issues raised by these cases, and are prepared to help guide you through them. For more information, please contact Brian Wassom, Janet Ramsey or Jason Byrne.

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