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When States Infringe: The Curious Case of Copyright vs. Sovereign Immunity

Los Angeles Copyright Society

May 25, 2022



Beck Redden associate, Owen McGovern, recently spoke on a panel discussing, “When States Infringe: The Curious Case of Copyright vs. Sovereign Immunity” for the Los Angeles Copyright Society (LSCS).

In 1717, the infamous pirate Blackbeard sunk his renamed Queen Anne’s Revenge off the coast of what is now North Carolina. The wreckage was finally discovered in 1996 by a marine salvage company. Rick Allen’s Nautilus Productions spent more than 10 years filming the salvage and recovery efforts. North Carolina posted some of Nautilus’s videos online and used one of its still photographs in a print newsletter, without permission.

What was Rick’s recourse? None, said the United States Supreme Court, because Congress did not have the constitutional authority to abrogate state sovereign immunity in the Copyright Remedy Clarification Act.

In 2005, Jim Olive, a professional photographer, shot a number of aerial photographs of the City of Houston and posted them on his website for purchase. One of those shots was known as “The Cityscape.” The University of Houston, a public Texas research university, took a copy of The Cityscape and posted it on several websites for its business school without permission.
What was Jim’s recourse? None, said the Texas Supreme Court, because the University of Houston’s use of his photograph was not a constitutional taking under the Fifth Amendment. (The US Supreme Court, for its part, denied certiorari.)

Rick Allen and Jim Olive’s attorney, Owen McGovern, will discuss their cases – and the policy considerations underlying them – in a program moderated by LCAS Board of Trustees, John Ulin.

Owen J. McGovern 713.951.6210