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Shipwrecks and Sovereign Immunity: Potential Implications of Upholding Abrogation in Allen v. Cooper

By Katelyn Asmus*

On November 5, 2019, the Supreme Court heard oral arguments in Allen v. Cooper, which examines whether Congress properly abrogated state sovereign immunity under the Copyright Remedy Clarification Act of 1990 (CRCA).[i]  The Supreme Court’s decision to hear the case signals a potential shift in Congress’ ability to abrogate state sovereign immunity, which could significantly increase state liability, create inconsistencies and confusion regarding the application of state sovereign immunity, and have a chilling effect on state-sponsored archival projects. 

In 1996, videographer Frederick Allen and his production company entered into a 15-year agreement with the North Carolina Department of Natural and Cultural Resources that allowed him to document a shipwreck that had been discovered off the State’s coast.[ii]  Allen registered separate copyrights with the U.S. Copyright Office for each year’s archival footage.[iii]  When the State posted videos and photographs without his consent, Allen sued the State for violating these copyrights.[iv] 

Although Allen and the State reached a settlement agreement in 2013, the State failed to take down several videos and photographs and later passed a separate state law making shipwreck videos and photographs public records of the State.[v]  Allen sued again, claiming that the State continued to infringe on his copyrights and had acted in bad faith by passing a law intended to shield them from federal copyright law.[vi]  The State filed a motion to dismiss, invoking state sovereign immunity.[vii]  However, in the present case, Allen argues that Congress properly abrogated the State’s sovereign immunity in cases involving copyright using powers derived from Article I[viii] and the Fourteenth Amendment[ix].

The Supreme Court has held that “Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”[x]  Courts have widely interpreted this holding as a bar on abrogating state sovereign immunity using only Article I authority.[xi]  However, the Supreme Court’s decision to uphold abrogation of state sovereign immunity under Article I’s Bankruptcy Clause in Central Virginia Community College v. Katz opened up the possibility that some abrogation statutes could be upheld using only Article I powers.[xii]  Additionally, courts have always kept open the possibility that abrogation statutes involving Article I powers could be upheld on Fourteenth Amendment grounds under Section 5’s enforcement power.[xiii] 

If the Supreme Court determines that Congress properly abrogated sovereign immunity in CRCA, the extent of the decision’s impact on state agencies will likely be dependent on whether the Court arrives at their decision on Article I or Fourteenth Amendment grounds.  Upholding abrogation on Article I grounds would likely have a more far-reaching impact and create greater uncertainty about which powers Congress may be able to invoke to abrogate state sovereign immunity in the future due to inconsistent application of precedent regarding abrogation restrictions.[xiv]  Whereas upholding abrogation under Section 5 of the Fourteenth Amendment would narrow the application of the decision by using an already articulated constitutional test but likely have a greater immediate impact on state activity.[xv]

During oral arguments, the line of questioning taken by several justices indicates less receptivity to an Article I approach, in part due to conflicts with past precedent and the confusion that could emerge from applying two seemingly opposing rules.[xvi]  In particular, the justices raised concerns about diverging from Florida Prepaid,[xvii] a Supreme Court case that applied the holding in Florida Seminole Tribe to the Intellectual Property Clause in Article I and determined that the Patent Remedy Clarification Act had not properly abrogated state sovereign immunity.[xviii]  Such a divergence could create great confusion as to a state’s liability for intellectual property matters because reading the two rules together would indicate that the Intellectual Property Clause of Article I can be invoked to properly abrogate state sovereign immunity for copyright cases but not patent cases.[xix]

Furthermore, as Justice Ginsburg alluded to at oral argument, if the Court were to uphold CRCA’s abrogation on Article I grounds, States’ uncertainty as to their liability could extend far beyond intellectual property matters to any abrogation related to Article I powers.[xx]  Even if Florida Seminole Tribe was still considered a general rule barring abrogation solely using Article I powers, a decision to carve out certain exceptions for copyright like the Court did for bankruptcy in Katz could encourage litigation intended to chip away at the rule overtime and ultimately greatly increase States’ potential exposure to liability.[xxi]

If the Court were to uphold abrogation under Section 5 of the Fourteenth Amendment, the decision would be much more narrowly tailored to apply to copyright violations under CRCA due to the test articulated in City of Boerne v. Flores that the Court uses to analyze legislation invoking Section 5 of the Fourteenth Amendment.[xxii]  The test examines the legislative record for evidence that States have committed pervasive constitutional violations and then weighs these considerations against the legislation’s remedy to ensure it was narrowly tailored.[xxiii] 

The Court has an opportunity to distinguish CRCA from other intellectual property abrogation legislation due to an extensive background report about State copyright violations compiled by the Register of Copyrights before the legislation’s passage.[xxiv]  Thus, many of the concerns regarding uncertainty about future abrogation of Article I powers could be largely alleviated by using an existing standard that explains why other pieces of legislation performing a similar function failed to be considered proper abrogation.  

However, states would likely face more tangible uncertainties related to the day-to-day operations of particular agencies and actors that could have a chilling effect on state-sponsored archival projects.[xxv]  Each States’ respective agency responsible for maintaining cultural artifacts and archives, as well as state-run libraries and universities with such archives,  could be exposed to much greater liability.[xxvi]

State-run archives have largely operated under the belief that the sovereign immunity abrogation restrictions imposed in Florida Seminole Tribe apply and provide protection from damage liability in private copyright suits.[xxvii]  A significant portion of archival work undertaken by state agencies is dependent on fair use doctrine, which is often uncertain and varies greatly across jurisdictions.[xxviii]  To deal with this uncertainty, state agencies have relied on remedial means other than damages, such as injunctions, to allow them to continue their archival work without fear of large damage liability.[xxix]  Furthermore, state agencies may be better incentivized by existing outside pressures – such as the economic loss associated with producing a product that would have to be pulled if the copyright holder seeks injunctive relief or loss in positive public perception of the state entity.[xxx]

While many of these external pressures already play a role in state archival work, the looming threat of large money damages for copyright infringement could have a tremendous impact on the State’s willingness to continue to operate large-scale archival and digitization projects due to frequent fair use uncertainties associated with these projects.[xxxi]

Although the particular effects may vary based on different theories, if the Supreme Court ultimately decides to uphold CRCA as a proper abrogation of state sovereignty, States will likely face great uncertainty about their liability to private damage suits in current and future projects, which could significantly chill their participation in areas vulnerable to abrogation of state sovereignty. 

*Katelyn Asmus is a Junior Editor on MJEAL. They can be reached via email at

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Transcript of Oral Argument at 1, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

[ii] Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018). 

[iii] Id. at 344. 

[iv] Id.

[v] Id. at 345.

[vi] Id. at 342.

[vii] State Defendants’ Memorandum in Support of their Motion to Dismiss, Allen v. Cooper, 244 F. Supp. 3d 525 (E.D.N.C. 2017) (No. 5:15-CV-627-BO).

[viii] Petition for Writ of Certiorari at 22-28, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

[ix] Id. at 28-33. 

[x] Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996) (holding the Indian Commerce Clause did not grant Congress the power to abrogate state sovereign immunity).

[xi] See Hayden W. Gregory, Eleventh Amendment State Sovereign Immunity: Still a Free Pass to IP Infringement, 4 Landslide 2 (2011) at 2, 3. 

[xii] See Petition for Writ of Certiorari at 24, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

[xiii] See Kate A. Thompson, State Immunity for Copyright Violations on the Horizon?, 20 No. 2 Intell. Prop. L. Newsl. 9 at 10.

[xiv] See Transcript of Oral Argument at 6, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019). 

[xv] See Thompson, supra note 4 at 10.  

[xvi] See Transcript of Oral Argument at 6-12, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

[xvii] See id. at 9-12.

[xviii] Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 627-28 (1999). 

[xix] See Transcript of Oral Argument at 8-9, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

[xx] See id. at 6. 

[xxi]  See id. at 8-10. 

[xxii] See Thompson, supra note 4 at 10.  

[xxiii] See Thompson, supra note 5 at 10. 

[xxiv] Report of the Register of Copyrights, U.S. Copyright Office, Copyright Liability of States and the Eleventh Amendment (1988). 

[xxv] See Brief for American Library Association et. al. as Amici Curiae Supporting Respondents at 33-35, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

[xxvi] See id. at 2-3.

[xxvii] Id. at 3.

[xxviii] See id. at 27-29.

[xxix] Id. at 4.

[xxx] See Christopher L. Beals, A Review of the State Sovereignty Loophole in Intellectual Property Rights following Florida Prepaid and College Savings, 9 U. Pa. J. Const. L. 1233, 1268-1270 (2007).

[xxxi] See Brief for American Library Association et. al. as Amici Curiae Supporting Respondents at 14, Allen v. Cooper, No. 18-877 (argued Nov. 5, 2019).

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