Author: copyrightdev

Last week, the world lost a legal giant, Justice Ruth Bader Ginsburg, after 27 years of service on the highest court in the land. Justice Ginsburg, the second woman ever appointed to the Supreme Court, is widely celebrated as a champion of women’s rights, and a dedicated advocate for human and civil rights across the board. And within the copyright law and policy arena, Justice Ginsburg is also known for having authored numerous noteworthy copyright law opinions, concurrences, and dissents.

Community for Creative Non-violence v. James Earl Reid (DC Cir. 1988)

In 1988, prior to her tenure with the United States Supreme Court, Justice Ginsburg was a judge in the U.S. Court of Appeals for the DC Circuit and she authored an important opinion in Community for Creative Non-violence v. James Earl Reid (1988)–a case that analyzed the Copyright Act’s “work made for hire” doctrine.

A non-profit devoted to the welfare of homeless people (CCNV) sued the sculptor who created a display that would dramatize the plight of the homeless as a modern Nativity scene. After repairing the sculpture following its display, the sculptor refused to return it to CCNV for a lengthy tour, which he asserted would damage the sculpture. CCNV sued the sculptor, claiming to be the sole copyright owner of the work.

The various circuits used different tests to determine whether a creative work was a work made for hire, a distinction that affects who is considered the copyright owner. The Second and Seventh Circuits used tests of “actual control” and “sufficient supervision and direction,” along with a determination of whether a contractor was an employee, to determine authorship.

On the other hand, the Fifth Circuit used a “literal interpretation” test that used agency law to determine the scope of the working relationship, designating it as either an employment relationship or independent contractor relationship. The Fifth Circuit also looked to at whose “instance and expense” the work was being created and who had the right to direct and supervise the manner in which the work was performed.

The DC Circuit, in an opinion authored by then-Judge Ginsburg, held that the literal interpretation best suits the Copyright Act of 1976 and found that the sculpture does not fall under the work made for hire category: the work did not fall within one of the enumerated work for hire categories and there was no written instrument signed by the parties describing the work as a work made for hire. But, the Court found that both parties played a role in the creation of the sculpture – the sculptor created the figures, while CCNV created the base and steam grate the figures would rest on.

While the Court did not fully decide the issue of who the copyright owners were, as further investigation was needed to determine if any other parties could qualify as authors for CCNV’s contribution to the sculpture, this case clarified an approach to the work made for hire doctrine that courts use to this day. The following year, the Supreme Court affirmed the DC Circuit’s holding, and five years later, Ginsburg was appointed as an Associate Justice in that very court.

SCOTUS Opinions

Eldred v. Ashcroft (2003)

Here, Justice Ginsburg authored the Supreme Court’s majority opinion that the Copyright Term Extension Act’s (CTEA’s) extension of copyright duration by 20 years did not violate either the Copyright Clause’s “limited Times” prescription or the First Amendment’s free speech guarantee. This case was brought by a collection of individuals and businesses who created products or services based on public domain works.

First, Petitioners argued that the 20-year extension violated the “limited Times” prescription, essentially asserting that a time period, once set, becomes inalterable. But, the Court found that the word “limited” is not delineated in such a way: a 20-year extension is still a limited period of time, and applying this extension to both existing and future works allows for all copyright owners to be governed evenly under the same set of rules.

Second, Petitioners argued that Congress did not rationally exercise its power under the Constitution’s Copyright Clause by passing the CTEA. The Court asserted that it defers substantially to Congress in reviewing actions under the rational basis test. The Court found that the CTEA is a rational enactment and not subject to Court scrutiny. Overall, the Court found that the CTEA did not violate any aspect of the Copyright Clause.

Next, the Court addressed Petitioners’ assertion that the CTEA is a regulation of speech that violates the First Amendment. Justice Ginsburg wrote how the Copyright Clause and First Amendment were adopted close in time, with similar principles in mind. In addition, the CTEA, and copyright law in general, incorporates speech-protective safeguards by ensuring only expression, not ideas, are protected, and that ideas, theory, and fact, even if present in a copyrighted work, are still available for public use. Even further, the fair use defense allows individuals to use others’ expression in certain circumstances.

Petitioners likened the CTEA to communications law’s must-carry rules. But, unlike with the must-carry rules considered in Turner Broadcasting System, Inc. v. FCC, copyright law does not require anyone to share another’s’ speech against their will.

Overall, the Court asserted its deference to Congress and emphasized its belief that the CTEA did not violate the Copyright Clause or First Amendment, allowing for the extension of copyright terms and compliance with international treaties.

Golan v. Holder (2012)

In Golan v. Holder, Justice Ginsburg delivered the Court’s opinion supporting new copyright protection for foreign authors under the Berne Convention and Uruguay Round Agreements Act (URAA), including for authors whose works were in the public domain. Prior to the URAA, foreign works were not protected by the Copyright Act and were considered to be within the public domain in the United States.

In adopting the URAA, the United States gave national treatment to foreign authors, protecting their works under the same conditions American authors’ works were protected. For some authors, this meant their works would come out of the public domain to enjoy what remained of their copyright protection term.

Petitioners, a group of orchestra conductors, musicians, publishers, and others who used public domain works in their business, argued that the URAA violated the Copyright Clause and First Amendment. Primarily, Petitioners argued that works that fell into public domain cannot be brought out of it, and that bringing these works out of the public domain removes “vested rights” Petitioners have in these works.

Speaking for the Court, Justice Ginsburg found that the URAA did not violated either the Copyright Clause or the First Amendment. The URAA did not create perpetual copyrights and, historically, Congress had given copyright protection to public domain works several times. In addition, Justice Ginsburg stated that the Court “will not second-guess Congress’ authority or political choice in embracing the Berne Convention and providing equitable treatment to “once disfavored foreign authors.”

Next, Justice Ginsburg held that the creation of new works is not the sole means through which Congress can “promote the Progress of Science” – the Progress of Science can also be promoted through the dissemination of works.

Finally, the Court addressed Petitioners’ First Amendment complaint that the URAA affected their freedom of expression by preventing them from using these now-protected works. Justice Ginsburg explained how the URAA does not affect the idea/expression dichotomy codified in the Copyright Act, nor did it affect the fair use defense. Effectively, Petitioners could still pay for the right to use these now-protected works or act under fair use – referring back to the petitioners in Eldred, the Court explained that Petitioners did not have any “vested rights” in works that had entered the public domain.

Through Golan v. Holder, the Court, led by Justice Ginsburg, held that Congress did have the power to enact the URAA. The Court also solidified the idea that works in the public domain can be brought out to receive copyright protection, complying with the Copyright Act’s “limited Times” requirement, and that the idea/expression dichotomy and fair use doctrine allowed sufficient First Amendment protection in current copyright law.

Petrella v. Metro-Goldwyn-Mayer, Inc. (2014)

Justice Ginsburg delivered the Court’s opinion regarding the application of the doctrine of laches to civil copyright claims that are still brought within the three-year period of time prescribed by the federal statute of limitations.

Here, the daughter of an author who wrote two screenplays and a book with boxer Jake LaMotta sued Metro-Goldwyn-Mayer (MGM) for creating the film “Raging Bull,” asserting that MGM infringed on Petrella’s rights in the screenplay and its derivative works. The federal district court held that Petrella’s legal claim was barred under the doctrine of laches since she took a long delay in filing the claim, which adversely affected MGM’s ability to fight it.

Justice Ginsburg, writing for the Court, explained the relationship between legislation and the doctrine of laches – how, generally, the doctrine of laches applies to equitable claims for which Congress has not prescribed a time limitation. Before the enactment of a statute of limitations for federal copyright suits in 1957, courts used analogous state statutes of limitations and sometimes invoked laches to abridge the state law requirement – this was how courts filled that legislative hole. But, a statute of limitations for copyright law now exists. Further, the copyright statute of limitations itself considers delay by only allowing a successful plaintiff to recover for retrospective relief from, at most, three years in the past. For these reasons, Ginsburg explained, MGM could not invoke the doctrine of laches.

Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC (2019)

While an author gains exclusive rights in his work upon its creation, the Copyright Act requires that “registration of the copyright claim has been made” before a copyright owner can pursue an infringement claim in court. But when exactly has registration been made?

In this case, Fourth Estate, a news organization that produces online news articles, sued Wall-Street.com, a former licensee, when Wall-Street.com failed to remove all Fourth Estate content from its website after cancelling its licensing account.

This case turned on whether Fourth Estate, which did not have finalized copyright registrations for its work, could pursue a civil action against Wall-Street.com under the Copyright Act, which required that registration be made prior to filing a lawsuit. The Court was tasked with deciding whether a “registration has been made” under section 411(a) of the Copyright Act when the copyright owner submits a completed application, fee, and deposit (known as the “application approach”, or when the Copyright Office acts to either grant or refuse the registration (known as the “registration approach”).

Justice Ginsburg, speaking for a unanimous court, explained that the statute requires the Copyright Office to act on a copyright registration application before a copyright claimant may commence an infringement suit. Justice Ginsburg pointed to several provisions of the Copyright Act, explaining that if the application approach was correct, these sections would be repetitive. As well, the preregistration option for works that are especially susceptible to prepublication infringement would not need to exist if a copyright owner could pursue a federal action as soon as he applied for copyright registration.

This decision greatly impacted copyright law as it means that copyright owners cannot immediately pursue legal action when they uncover infringement; instead, if they do not have a copyright registration for their work, they must wait until the Copyright Office has made a registration decision to file civil suit, which can take months. Justice Ginsburg was sympathetic toward this problem, stating that, “the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today” but recognized that “[u]nfortunate as the current administrative lag may be, that factor does not allow [the Court] to revise ¤411(a)’s congressionally composed text.”

Concurrences

Justice Ginsburg’s imprint on copyright law didn’t end with her majority opinions – while her concurring opinions are not precedential, they remain insightful and influential.

MGM v. Grokster (2016)

MGM v. Grokster affirmed the secondary liability doctrine as it applies to copyright infringement. In this case, MGM sued Grokster, accusing it of inducing consumers to illegally download and share copyrighted works. Justice Souter delivered the opinion of the Court, which described the evolution of the digital distribution of music and explained why the Court believed imposing indirect liability on Grokster was a strong argument.

Overall, the Court explained that Grokster contributorily infringed on copyrighted music by (1) intentionally inducing or encouraging direct infringement and (2) providing a widely shared service that is used to commit infringement without substantial lawful use. While copyright law did not include liability for another’s infringement, well-established common law principles allowed for the application of these doctrines of secondary liability.

Justice Ginsburg concurred in the Court’s decision, but wanted to speak more on how the Court of Appeals misapplied the Court’s holding in Sony Corp. Of America v. Universal City Studios, Inc. Here, there was no finding of any fair use and very little evidence of non-infringing uses beyond anecdotal evidence. In fact, it seemed that the Court of Appeals relied heavily on the defendants’ own declarations when determining whether the products were capable of substantial non-infringing uses. Overall, Justice Ginsburg reiterated that there was insufficient evidence to grant summary judgment on whether the products were capable of significant non-infringing uses now or over time.

Star Athletica v. Varsity (2017)

The Supreme Court granted certiorari in this case to resolve circuit splits in how to properly analyze designs which may or may not separately exist from useful articles, primarily through a separability analysis. Here, Varsity Brands, a cheerleading uniform manufacturer, sued Star Athletica for infringement of five of their designs Star Athletica argued that the designs were not copyrightable as they were utilitarian, and copyright law does not protect utilitarian designs.

The Court held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” Using this separability analysis, the Court determined that the designs on Varsity’s cheerleading uniforms is separable from the uniforms and eligible for copyright protection.

Justice Ginsburg concurred in the Court’s judgment but not in its reasoning. Justice Ginsburg would not have used the separability test as she did not view these designs as designs of useful articles at all – in her opinion, the designs were standalone copyrightable works that were then reproduced on useful articles.

Dissents

Justice Ginsburg was well known for her dissents and their influential impact. The same rings true for her insightful copyright opinions.

Kirtsaeng v. John Wiley & Sons, Inc. (2013)

In deciding a case regarding the geographic limits of the first sale doctrine, the Court decided whether a foreign version of a textbook can be brought to the US and sold without violating the Copyright Act and the copyright owner’s exclusive rights. The Court found that there are no geographic restrictions on the “first sale” doctrine, allowing individuals to resell their copies of copyrighted works regardless of where they’re manufactured.

Justice Ginsburg dissented from the majority opinion, arguing that the decision was incompatible with Congress’ legislative intent of “protect[ing] copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted works,” thereby increasing the likelihood of the “international exhaustion” of copyrights, which the United States had been resisting.

Justice Ginsburg described the majority’s concerns as a “parade of horribles” that was “largely imaginary” and dissented from the Court’s focus on international exhaustion. Justice Ginsburg explained that international price discrimination was a financial incentive for authors to address different economic conditions around the world; this incentive is undermined if arbitrageurs can import copies of works from low-price regions to high-price regions.

Further, Justice Ginsburg argued that Congress’ legislative intent in enacting the Copyright Act was to provide copyright owners with recourse against the importation of foreign-made copies of their copyrighted works. Further, the first sale doctrine applied only to copies made in the United States, not copies made abroad. Justice Ginsburg described her view as consistent with those of the United States in international trade negotiations, as opposed to the majority opinion, which was dissonant with those negotiations, as well as dissonant with the Copyright Act’s text and history.

Georgia v. Public.Resource.Org, Inc. (2019)

Justice Ginsburg authored another insightful dissent in Georgia v. Public.Resource.Org, where the Court analyzed whether copyright protection extends to annotations in Georgia’s official annotated code, which were written by a private company.

The Court held that the annotations did not receive copyright protection because, even though a private company wrote the annotations, it did so in a way where the government is considered the author; under the government edicts doctrine of copyright law, “officials empowered to speak with the force of law cannot be the authors of-and therefore cannot copyright-the works they create in the course of their official duties.”

Justice Ginsburg dissented from the majority opinion, agreeing that state laws are not copyrightable but disagreeing in that “not all that legislators do […] is ineligible for copyright protection.” While the government edicts doctrine shields works created by judges and legislators in the course of their judicial and legislative duties, Justice Ginsburg did not believe that the annotations were created in a legislative capacity.

According to Justice Ginsburg, there are key differences between the roles of judge and legislator. Judges interpret and apply the law while legislators make the laws without construing them afterwards. Justice Ginsburg did not categorize the annotations as part of the Georgia Legislature’s lawmaking process; rather, they were simply “explanatory, referential, or commentarial material.” As such, these annotations were used by the legislature in their “auxiliary, not legislative character” and are thereby copyrightable.

With the passing of Justice Ginsburg, the world has lost an icon who exemplified integrity, justice and equality, and whose personal and professional legacy-including her legacy of discerning opinions on copyright law-will live on indefinitely.

Photo credit: Sean Pavone/iStock

I recently had the opportunity to share some questions with Senator Thom Tillis (R-NC) about a number of critical topics, ranging from DMCA reform to digital video piracy to his dedication to his role as the Chairman of the Senate Judiciary IP Subcommittee, and much more. Read on to learn what Senator Tillis had to say.

Keith: What are your responsibilities as Chairman of the Senate IP Subcommittee, particularly with regard to copyright law?

Senator Tillis: For almost twelve years, the Senate Judiciary Committee did not have a dedicated intellectual property subcommittee. But intellectual property is critical to the U.S. economy, and it really needed to have its own specialized subcommittee so that we can focus on deeply reviewing our intellectual property laws and examining spaces where legislative reform would better serve creators, innovators, businesses, and the public. As the first Chairman of the reconstituted Subcommittee on Intellectual Property, I believe it is my responsibility to ensure that our intellectual property system – so our copyright laws, and our patent laws, and trademark, and trade secrets – works the best it possibly can to foster American creativity and innovation. Put more strongly, my goal is to promote policies that will ensure America’s innovation and creative economies continue to be the best in the world. To do so, I’ve focused on doing some long overdue reviews of our copyright administrative system and our copyright, patent, and trademark laws. Last year I focused on potential reform of patent eligibility, and this year the Subcommittee is holding a series of hearings on reform of the Digital Millennium Copyright Act, with an eye toward releasing draft legislation in December.

Keith: What one thing do you wish that more people understood about copyright?

Senator Tillis: The critical role that creativity plays in the U.S. economy, and in the economy of the great state of North Carolina. I first became interested in intellectual property during my career before politics, working in technology and business consulting. Copyright is the engine of creative expression – it provides the incentives that allow aspiring authors to turn an idea into a best-selling story and with it a career. Copyright law also helps the United States be the entertainment capital of the world, and it contributes to millions of jobs across the country.

Keith: What do you think is the country’s biggest copyright-related challenge?

Senator Tillis: The United States has long provided a model to the world of the ideal copyright system, but U.S. copyright law is long overdue for an update. The last major overhaul of copyright law was with the enactment of the Copyright Act of 1976. The Digital Millennium Copyright Act helped bring U.S. copyright law into the internet age when it was enacted in 1998. But the DMCA is also showing the wear and tear of more than two decades of trying to adapt to changes in technologies and business models that Congress couldn’t have anticipated. When the DMCA was originally enacted, section 512 was viewed as a compromise between copyright owners and nascent online service providers. In exchange for receiving a limitation on liability for the infringing activities of users, online service providers were supposed to take specific actions to help curb online piracy, including making reasonable efforts to remove pirated material once they received notice that it was online. Unfortunately, this grand bargain is no longer working, and the notice-and-takedown system, which is a key component of the DMCA, isn’t achieving the policy goals Congress intended.

Keith: You’re working on drafting legislation that would close the loophole for criminal streaming piracy so that it is treated like a felony just as criminal reproduction and distribution are. Why do you think that this is important?

Senator Tillis: Global digital video piracy costs the U.S. economy something like $30 billion each year – and the vast majority of that is attributable to illegal streaming of copyright protected works. In part this is because the internet has grown so dramatically in recently years and technology has advanced to make new forms of dissemination possible that weren’t before. Just as the Subcommittee is reviewing the DMCA so that the law can be updated where appropriate to reflect changes to the world the law operates within, our criminal copyright laws also require some updating. As you noted, currently, criminal streaming of copyrighted works – that’s what is done by large commercial enterprises that stream unlicensed films and programs – is only a misdemeanor, but criminal reproduction and distribution – like bootleg DVD street markets – are felonies. This doesn’t make sense. It’s bad policy, and it hurts our creative community. That’s why my staff and I have spent this year working to develop legislation that will close this felony streaming loophole and benefit both copyright owners and users. Copyright owners will have their interests better protected by the backing of potential Department of Justice felony prosecution of large commercial enterprises profiting off illicit streaming, while users will be better protected from the potential malware, spyware, and viruses that these pirates can introduce through their criminal streaming operations.

Keith: As you and your office continue to hold hearings to assess the effectiveness or ineffectiveness of the Digital Millennium Copyright Act (DMCA), what parts of this law do you think need updating in order for it to work well in the 21^st century?

Senator Tillis: Thus far, our four hearings have focused on why the DMCA was originally enacted; approaches that other countries have taken to curb infringement online while encouraging growth of internet companies; the operation and effectiveness of section 512; and how the DMCA contemplates the doctrine of fair use. My Subcommittee will hold a hearing this month on section 1201, which prohibits circumvention of technological protection measures like encryption for DVDs and watermarks on photographs. We also will hold a hearing next month on the role of voluntary agreements between private companies that supplement that legal regime created by the DMCA. I’ve been learning a lot from all of our witnesses, and I look forward to the remaining hearings. At this point, I’m still reviewing the record, but one thing that has become clear is that the DMCA is no longer working as Congress intended it in 1998, and my staff and I are laboring to identify ways to amend the statute to help restore the balance. The fantastic growth of the internet has had the consequence of making the notice-and-takedown process unworkable for most copyright owners and many service providers. When a copyright owner notifies a service provider of an infringing work, it needs to come down and stay down. I’m also concerned that the process for putting back a work that should not have been taken down does not work for anyone. And I’m looking forward to our section 1201 hearing this month because my sense is that we may need to tweak that provision to ensure that the exemptions adequately account for consumer concerns, including by allowing for third-party repair of software-enabled devices.

Keith: With it being very easy to pirate the works of others, particularly online, do you believe that legislation is needed to help small creators combat these illegal activities?

Senator Tillis: Absolutely, and there is a great piece of legislation that I’ve co-sponsored that would do just that. The CASE Act is a critical piece of copyright legislation that would help individual authors quickly and effectively secure remedies for copyright infringement. Artists – from writers and photographers to musicians and software designers and all other kinds of creatives – play an important role in our communities and in our economy, but often the benefits of copyright protection lie practically out of reach because of the time and costs involved with enforcement through federal courts. The CASE Act will create a more efficient way for copyright holders to protect their intellectual property and ensure that our content creators can be properly paid when their work is used without authorization.

Keith: What are specific IP-related successes that you hope to deliver over the short-term and the long-term?

Senator Tillis: I am honored to have co-sponsored several important pieces of bipartisan IP legislation, and I am hopeful that these will all be successful both in the short-term and the long-term. Among these I count the CASE Act, which has already passed out of the House and out of the Senate Judiciary Committee. I’m also very proud of the work my staff and I are doing to patch the streaming loophole. And I’ve been busy working with stakeholders on consensus-driven legislation to modernize the U.S. Copyright Office. As I look ahead to my second term, intellectual property issues will remain a top priority for me, and I look forward to continuing to work with the Copyright Alliance and other key stakeholders to achieve meaningful reforms.

This week, the Copyright Alliance submitted comments to the Copyright Office in response to its Notice of Inquiry (NOI) for public comment on the extent to which copyright owners experience infringement by state entities that are largely immune to copyright claims due to the doctrine of state sovereign immunity. To assist the Copyright Office in its study, the Copyright Alliance launched a public survey soliciting feedback from copyright owners on their experiences with infringement by states and conducted interviews with a number of individual creators and organizations that have encountered state infringement. As a result of this research, compelling evidence was compiled showing that remedies against state infringement are inadequate or non-existent and that state copyright infringement is a frequent and damaging occurrence that will increasingly threaten the goals of the copyright system unless corrected.

Survey Responses

The responses to the Copyright Alliance survey, which asked many of the same questions listed in the Copyright Office NOI, revealed that creators and copyright owners have encountered thousands of instances of infringement by state entities, resulting in lost revenue of countless millions of dollars. Over the brief time that the survey was open, 115 respondents answered that they had experienced infringement by a state or state entity-with the vast majority experiencing multiple infringements. Of the respondents who said they have encountered state infringement, 52% described multiple instances of state infringement, using words such as “countless,” “at least a dozen,” “thousands,” and “infinitely many.”

The survey asked respondents to select the year (between 1976 and 2020) that they discovered infringement by a state entity, and although infringement was reported as far back as 1978, a trend of increased infringements is apparent, starting in the mid-to-late 90s and increasing yearly through the 2000s and 2010s, with the most instances occurring in 2019. The consistent rise over the last twenty years corresponds not only to the growth of the internet, but with a pair of cases of at the turn of the century that challenged the validity of the Copyright Remedy Clarification Act (CRCA)-a 1990 law that abrogated state immunity from copyright claims-and effectively opened the door to a new era of unchecked state infringement.

The Copyright Alliance survey also asked respondents to identify the type of work(s) infringed, allowing them to choose as many categories as appropriate from a list of fourteen. Photographs were the most commonly infringed works, with written materials-such as books, poems, blogs, or articles-coming in second place. Instances of infringement involving sound recordings, television programs, and motion pictures were also identified, as well as some less-common infringements involving other categories shown in the figure below.

The states in which alleged infringement was most frequently reported were Texas, New York, California, and Illinois, but instances of infringement were reported in all fifty states. When asked what type of state entity infringed, an overwhelming majority of respondents identified state universities or institutions of higher learning. Other state entities identified by respondents included state tourism boards, departments of natural resources, and museums.

Importantly, 68% of copyright owners responded that they believe they’ve lost revenue or licensing opportunities due to state infringement. Many of the respondents went on to describe the losses they incurred, including lost book sales, lost subscription and licensing fees for photographs and video footage, and also more intangible losses, such as careers cut short due to lost revenue and time spent trying to stop the infringement.

State Copyright Ownership

One of the glaring injustices related to state sovereign immunity is the fact that state entities continuously reap the benefits of the copyright system by registering and enforcing their own copyrights while at the same time enjoying immunity from monetary damages in infringement claims. To help show the extent to which state entities own copyrights, the Copyright Alliance conducted keyword searches using the Copyright Office’s public catalog of registrations. Searches were run using the “Name Claimant” option that combined keywords, such as “university,” “department,” “hospital,” “commission,” and many others, with the names of large and heavily populated states, such as New York, Texas, and California.

The keyword search that returned the most results in each case was the state name combined with “university.” For the state of Texas, there were 6,095 registered works, with a variety of entities associated with the University of Texas, Texas A&M University, Texas Tech University, and other public institutions of higher education listed as the copyright claimant. Running the same search for the state of New York returned 9,994 registered works, and a state of California search returned over 10,000 registered works. While additional research should be done to explore the scale of state copyright registrations, the results are indicative of states’ reliance on the copyright system to register and protect works.

Creator Stories

In addition to the survey, interviews were conducted with a number of Copyright Alliance members and individual creators whose stories provide insights into increasingly harmful instances of state infringement and the inadequacy of available remedies. The comments detail the experiences of photographers, authors, documentary filmmakers, and other copyright owners, all of whom have encountered infringement by state entities over the past twenty years.

While the specifics of the individuals’ experiences varied, a number of common themes emerged. Nearly all of the creators interviewed said that they had encountered infringement by state school districts, universities, or other institutions of higher learning-and many of them identified infringement by these educational entities in more than one state. The creators also noted that they do not actively monitor for infringement and found out about the unauthorized uses by accident, which indicates the amount of infringement identified is only the tip of the iceberg.

All of the individuals interviewed pursued claims against the infringing state entities, resulting in sometimes protracted legal battles that cost hundreds of thousands of dollars of their own money. In addition to money spent on lawsuits, lost profits, and spoiled licensing opportunities, the creators spoke of the time lost attempting to monitor for and stop infringement-time that should have been spent on creative endeavors.

Finally, the creators all expressed deep frustration with a copyright system that is allowing state entities to infringe without meaningful consequence and thereby robbing them of the exclusive rights guaranteed by copyright law. For best-selling author Dr. Keith Bell, the experience of feeling powerless to control his works and combat infringement led directly to his decision to stop writing. While it’s impossible to measure the cultural losses incurred as a result of those who have abandoned creative pursuits due to overwhelming state infringement, these losses are completely counter to the goals of the copyright system to incentivize the creation of new works.

Lack of Adequate State Remedies

In response to the Copyright Office NOI, the Copyright Alliance also looked into the availability and adequacy of state remedies to address the needs of copyright owners. Our research, combined with the survey results and creator interviews, revealed that the availability of state remedies is limited due to a number of issues, including federal preemption of state claims, the absence of tested causes of action under state law, and immunity from suits in their own courts that states enjoy as a result of statutory or constitutional provisions. The patchwork of varying state laws is also testament to the incapability of states to provide the type of uniform protection traditionally afforded copyright owners under federal law.

The Copyright Alliance’s research also found that injunctions, while theoretically available to copyright owners when confronted with state infringement, are neither an adequate remedy nor an effective deterrent to infringement. Not only can they be prohibitively expensive, but injunctions offer only prospective relief and do nothing to remedy past injury. Injunctions have been described by experts as a “poor substitute” for the recovery of damages, and by themselves do not allow copyright owners to obtain the complete relief otherwise provided for under the Copyright Act.

Recommendation for Abrogating State Sovereign Immunity

The evidence gathered by the Copyright Alliance shows that instances of state infringement have increased exponentially over the twenty years since the validity of the CRCA was thrown into question, and copyright owners now find themselves navigating an uncertain system comprised of inadequate remedies that deprive them of the exclusive rights guaranteed to them under Section 106 and Section 1201 of the Copyright Act. In the Supreme Court’s recent Allen v. Cooper decision, the Court laid out a path for legislative action, suggesting that if Congress can develop a legislative record that demonstrates the necessary evidence of unconstitutional state conduct and link the scope of its abrogation to the redress or prevention of unconstitutional injuries, abrogation of state sovereign immunity would be appropriate pursuant to Section 5 of the Fourteenth Amendment. Based on the findings of our study and information that other commentators will provide to the Copyright Office, the Copyright Alliance believes there is sufficient evidence to support legislation following the Court’s guidance in Allen v. Cooper that would abrogate state sovereign immunity in copyright infringement cases.

Photo credit: Denys/iStock

What is, arguably, one of the greatest injustices faced by artists in the United States?

My answer would be the lack of legal agency. The reality that artists lack legal agency to protect their original works of authorship from infringement is a systemic fault that deserves an adequate remedy.

Late last year, in an effort to address this injustice among artists, the United States House of Representatives passed the Copyright Alternative in Small-Claims Enforcement Act, known as the CASE Act, with an overwhelming 410-6 majority vote. The CASE Act would provide a low-cost, streamlined mechanism for artists to enforce their copyrights through the creation of a Copyright Claims Board, located within the U.S. Copyright Office, to decide copyright disputes over claims equal to or less than $30,000. However, since the Act’s sweeping passage in the House, all progress towards meaningful action has been entirely halted by a single Senator from Oregon. The fact that one person has the power to stand in the way of promoting the progress of the arts is, to me, a needless thorn in the thicket of briar that makes up the wide-spread injustices artists in the creative community already regularly confront.

The CASE Act is a necessary step Congress and the Copyright Office can take to ensure reasonable remedies for artists. Through the establishment of a Copyright Claims Board, the Office would be able to use its expertise to make informed decisions that promote the goals of copyright and provide creators with an alternative to pursuing claims in federal court. As musicians and copyright owners Marti Cuevas and Carlos Martin Carle explain, under the CASE Act, artists would have a reasonable opportunity to enforce their copyrights and prevent rampant infringement without breaking the bank in legal fees associated with federal litigation costs.

Nevertheless, the infringement creators regularly encounter is widespread, and enactment of the CASE Act is only the first step towards establishing much needed mechanisms to ensure the legal agency of artists. Action must be taken in order to close the streaming loophole, which allows rampant streaming piracy to occur without meaningful consequence. There is also a glaring imbalance in the current DMCA notice-and-takedown system, which classical composer Kerry Muzzey described in his testimony at the Senate Subcommittee on IP hearing on notice and takedown earlier this summer as besieged by “a sea of big tech Goliaths.” It’s also essential that Congress carefully consider abrogating state sovereign immunity in copyright infringement cases, so that creators like Rick Allen no longer have to fight costly, extensive legal battles with seemingly untouchable state entities.

These are all issues that the Copyright Alliance is working on to help preserve the value of copyright and protect the right of creators in our communities, and I was fortunate enough to support these efforts as part of my Legal Internship.

However, as too many artists in the copyright and creative communities have undoubtedly experienced during the current global pandemic, legal agency is further crippled by a lack of financial resources. Far too often when budgets are reviewed, or economies stall under hardship, the arts are the first to be depleted of resources and agency. Terrica Carrington explained back in April when COVID-19 was just beginning to wreak havoc in our communities that most full-time artists are considered working-class citizens in which the average musician in the U.S. earns $35,000 per year, the average photographer makes $34,000 and the average author grosses just $20,300. These pre-COVID-19 figures have certainly dropped due to cancelled exhibitions, concerts, gigs and book signings, and further decreased sales of visual art, artisan crafts, and other handmade works have threatened creators’ livelihoods.

While many organizations have come to the aid of artists during this time of need, some have sought to further exploit artists and deprive them of their exclusive rights as copyright owners. One such organization is the Internet Archive, which Keith Kupferschmid revealed has been taking advantage of artists for its own selfish gain well before the pandemic. To add further insult to injury, this past March the Internet Archive announced its “National Emergency Library,” which essentially bypassed the entire U.S. copyright legal framework by allowing for the unauthorized distribution of millions of works of authorship. In June, the Association for American Publishers, on behalf of its book publisher members, sued Internet Archive for its blatant theft of authors’ copyrighted works. The National Emergency Library has since been closed, but the economic damage suffered by authors as a result of this organization’s actions will have a lasting impact.

Unfortunately, artists’ lack of financial resources is not solely caused by COVID-19. Although the global pandemic has made it harder for artists to make a living, insufficient investments in arts education has caused continual suffering to artists. From my own educational experience, investment in the arts is lacking, even among institutions that praise interdisciplinary studies and strongly support STEM projects. Arts programs are routinely defunded, despite the fact that arts education establishes a foundation for securing legal agency for artists.

This is why I have long admired the view of former President and notable advocate for the arts, John F. Kennedy, that if more politicians knew poetry and more poets knew politics the world would be a much better place to live. I would similarly suggest that if more lawyers knew art and more artists knew law the world would be a much more just place. Lawyers and those who are educated in the law should not turn a blind eye to the arts; likewise, artists should not be discouraged by gaps in the law. There are ongoing efforts to better protect the rights of artists and copyright owners, and I’m proud to have been able to help support them.

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