United States: Yo Ho No: Lack Of Express Language Scuttles Claim Of Sovereign Immunity Waiver

The US Court of Appeals for the Fourth Circuit confirmed, consistent with rulings in other courts, that the Copyright Remedy Clarification Act does not validly abrogate 11th Amendment immunity, and that 11th Amendment immunity may only be waived if a state expressly consents to suit in federal court. Allen v. Cooper, Case Nos. 17-1522, -1602 (4th Cir. July 10, 2018) (Niemeyer, J).

Allen, a videographer, along with Nautilus, his video production company, obtained the rights to create footage and photograph Blackbeard's pirate ship off the coast of North Carolina through a permit issued by North Carolina to the salvors of the ship. The permit gave the salvors the exclusive right to make and market all commercial narrative accounts of project-related activities undertaken by the salvors, but specifically provided that the agreement did not infringe the public's right to access public records, including field maps, notes, drawings, photographic records and other relevant materials created or collected pursuant to the study of the site and recovery of materials therefrom. After capturing substantial video footage and still images showing the underwater shipwreck and the efforts of teams of divers to recover artifacts from the wreck, Allen registered these works with the US Copyright Office. 

Subsequently, the North Carolina Department of Natural and Cultural Resources published some of Allen's work on the internet without his consent, leading to a copyright infringement dispute that the parties settled pursuant to a settlement agreement. After entering into the settlement agreement, Allen and Nautilus alleged that the Department resumed publishing and/or displaying various videos about the shipwreck on the Department's YouTube channel and published one of Allen's still photographs in a newsletter, in violation of the parties' agreement.

Allen and Nautilus then brought suit alleging violation of Allen's copyrights. North Carolina filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) asserting sovereign immunity under the 11th Amendment. In response, Allen and Nautilus made three main arguments:

  • North Carolina waived sovereign immunity in the settlement agreement.
  • The federal Copyright Remedy Clarification Act of 1990 abrogated the State's sovereign immunity.
  • Ex parte Young provided an exception to sovereign immunity for ongoing violations of federal law. 

After the district court rejected North Carolina's claims of immunity, North Carolina filed an interlocutory appeal, and Allen and Nautilus filed a cross-appeal.

The 11th Amendment immunity protects states, their agencies and their officials from suit in federal court. In order to waive immunity under the 11th Amendment, a state must expressly consent to suit in federal court. The Fourth Circuit found that the settlement agreement between the Department and Allen fell short of the clear statement required to effect a waiver of 11th Amendment immunity. The agreement provided in relevant part:

In the event [North Carolina], Intersal [salvors], or [Allen and] Nautilus breaches this Agreement, [North Carolina], Intersal, or [Allen and] Nautilus may avail themselves of all remedies provided by law or equity.

This statement makes no reference to federal court (or any court) and states only that each party may pursue available remedies as provided by law or equity. Thus, the Fourth Circuit found that legal or equitable limitations on those remedies—including 11th Amendment immunity—must also apply under the agreement and, as a result, the agreement did not constitute a waiver of 11th Amendment immunity.

The Fourth Circuit further found that the Copyright Remedy Clarification Act does not abrogate a state's 11th Amendment immunity. The Act provides in relevant part:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any 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 copyright law].

The Fourth Circuit reaffirmed that Congress cannot rely on its enumerated power in Article I's Patent and Copyright Clause, which authorizes Congress to "secur[e] for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries," to abrogate 11th Amendment immunity. The Court, relying on Florida Prepaid v. College Savings Bank (S.Ct. 1999), found that the language in the Act sweeps so broadly that it cannot be deemed a congruent and proportional response to the 14th Amendment injury with which it was confronted. Therefore, the Court concluded that the Copyright Remedy Clarification Act cannot validly abrogate the 11th Amendment.

Lastly, the Fourth Circuit found that Ex parte Young, which allows private citizens to sue state officials in their official capacities in federal court to obtain prospective relief from ongoing violations of federal law, does not apply in this case because North Carolina removed the allegedly infringing materials from the internet and there was no ongoing copyright infringement. The argument by Allen and Nautilus that there was the possibility of other infringing displays did not plausibly allege the existence of an ongoing violation of federal law, and thus Ex parte Young did not provide an exception to the 11th Amendment immunity claimed by North Carolina.

The Fourth Circuit reversed and remanded the matter to the district court with instructions to dismiss, with prejudice, the claims against state officials in their individual capacities, and to dismiss, without prejudice, the remaining claims.

Yo Ho No: Lack of Express Language Scuttles Claim of Sovereign Immunity Waiver

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