When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission. However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay or permission? Can the copyright owner seek damages from the university for infringement? If not, then how can a copyright owner recover damages for state infringement? Until recently, the answer was that copyright owners could obtain damages from the university for copyright infringement under the Copyright Remedies Clarification Act, 17 U.S.C. §511, but in Allen v. Cooper, the United States Supreme Court held the Act unconstitutional in part because there was not enough evidence of state infringement to support waiving sovereign immunity. Now the question has no clear answer. While some state cases have copyright owners attempting to obtain damages through alternative means, there does not seem to be an easy way for copyright owners to obtain monetary relief for state copyright infringement. National legislation could be proposed once again, but how well would that fair against the Court’s current precedent? Would it be better to ask the states to waive immunity themselves? Monetary remedies for wrongs should be available, even when the wrong is committed by the state or its entities. The issue is finding a way around sovereign immunity. Sometimes the way around sovereign immunity is by using federalism.
