The Graphic Artists Guild , with four other organizations, joined an amicus brief in a lawsuit scheduled to be heard by the Supreme Court in 2020. The lawsuit will address the issue of copyrights and sovereign immunity, specifically whether state actors can be sued for copyright infringement. The 11^th amendment of the Constitution protects state entities from being sued for damages in copyright infringement cases by conferring upon state actors (agencies, employees, etc.) sovereign immunity. Congress attempted to correct this in 1990 by enacting the Copyright Remedy Clarification Act (CRCA). However, CRCA has been struck down as unconstitutional in several district courts, as in the case being heard by the Supreme Court.

In this case, filmmaker Rick Allen sued the State of North Carolina for using without permission his video footage and stills of the wreck of Blackbeard’s pirate ship, Queen Anne’s Revenge. After Allen discovered that the State had been using his video and materials online, the two worked out a settlement. However, in violation of the settlement, the State continued to use his work, and passed a law stating that all video and stills of shipwrecks in North Carolina waters are public record and can be used without limitation. Citing the CRCA, Allen sued the State for copyright infringement and won his case in lower court. The State appealed in the Fourth Circuit, and the court found for the State, holding that the CRCA is unconstitutional.

The amicus brief filed by NPPA and ASMP presents two major arguments in opposition to the Fourth Circuit’s decision. First, the brief points out that decisions similar to the Fourth Circuit decision are taken by state actors to assume they can willfully infringe copyrights, knowing that the copyright holders – generally individuals and small businesses ­– have little recourse to take action.  (The brief also argues with the assertion that most copyright infringement by state actors is unintentional or innocent, pointing out that the failure to investigate the copyright status of a work amounts to willful disregard.) Should states be able to disregard copyright, creators would be deprived of royalty income, find it impossible to grant exclusive license to their copyrighted works, would have difficulty encouraging new licensing agreements, and in general would see their copyright devalued.

The second major argument presented in the brief hinges on free speech, and the courts’ interpretation of copyright as an “engine of free speech,” citing precedent that equates creative works with speech. This distinguishes copyright – and copyright law – from patents and trademarks.  (The distinction is crucial since the Supreme Court has ruled previously that states are immune from lawsuits stemming from violation of patent and trademark law.) The right of free speech also includes the right to not speak. Invalidating the CRCA would allow states to use copyrighted material to promote values or actions the copyright holder might disagree with (such as initiatives around gun control or abortion rights), effectively compelling the creators to speak messages they may not agree with.

The amicus brief was authored by ASMP General Counsel Thomas Maddrey with J. Michael Heinlen of Thompson & Knight, NPPA General Counsel Mickey Osterreicher, and NPPA Deputy General Counsel Alicia Wagner Calzada. In addition to the Guild, the brief was joined by The North American Nature Photography Association (NANPA), American Photographic Artists (APA), Professional Photographers of America (PPA), and Digital Media Licensing Association, Inc. (DMLA).