The conflicts over sovereign immunity date back to our country's founding when states were concerned about possible overreaching by a central government. An early Supreme Court decision in Chisholm v. Georgia, 2 US 419 (1793) rejected sovereign immunity and held that the federal government had sovereign immunity but the states did not. Congress quickly responded with the11th Amendment, which was ratified in 1798, stating:
'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
While there are exceptions to their immunity and states can waive their immunity, the 11th Amendment remains a powerful shield for the states. By asserting sovereign immunity, states can avoid most federal litigation in circumstance where there has not be an exception or waiver. The application of sovereign immunity in the area of intellectual property has produced some curious results.
If we fast forward to 1996, we have the case of Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) that limitations on congress enacting legislation impacting sovereign immunity. In a simplification of the case issues, the Court's decision turned on whether Congress had the power under Article I of the Constitution to abrogate the state's 11th Amendment sovereign immunity. In a less than unanimous decision, the Court held that Article I of the Constitution could not abrogate sovereign immunity because the 11th Amendment was ratified after the Constitution was ratified. Sovereign immunity was now firmly established in constitutional law and congress had limited powers over it.
The Supreme Court directly addressed sovereign immunity and intellectual property in Allen v. Cooper, 140 S.Ct. 994 (2020) revolving around IP resulting from salvage effort on a famous sunken ship. The Queen Anne's Revenge, Blackbeard's flagship, sunk off the coast of North Carolina in the early 1700s. Under state law, the ship and its artifacts became the property of North Carolina. In 2013, North Carolina entered into a salvage agreement that acknowledged North Carolina's control over the wreckage and permitted the hiring of Allen, who would document the salvage operations. Because Allen retained control over the commercial media, he registered 13 copyrights.
In 2013, Allen alleged that North Carolina was infringing on his copyrights and they reached a settlement. Although the settlement acknowledged Allen's exclusive rights in the works, North Carolina soon resumed infringing. Allen sued and North Carolina responded with 'Blackbeard's Law' which placed Allen's works in the public domain.
Allen responded by suing Roy Cooper, North Carolina's Governor, under the federal Copyright Remedy Clarification Act (CRCA) which permits individuals to sue states for infringing copyrights. North Carolina argued that CRCA was an unconstitutional abridgement of its 11th Amendment sovereign immunity. The U.S. district court ruled in Allen's favor.
The Fourth Circuit reversed and held the CRCA was an unconstitutional abrogation of North Carolina's sovereign immunity. A unanimous Supreme Court, relying heavily on Seminole Indian Tribe as precedent, agreed that the CRCA unconstitutional and was an unlawful abrogation of North Carolina's sovereign immunity. The Court recognized the inherent unfairness of state sponsored impingement to individual artists, but Congress's...
