Allen v. Cooper

Post publish date: March 1, 2020

In Allen v. Cooper, the Fourth Circuit reversed the Eastern District of North Carolina’s holding that photographer and videographer Frederick Allen was entitled to sue the State of North Carolina for allegedly infringing his copyrights.

Allen, and his production company Nautilus Productions, have been the exclusive photographers of the shipwreck of Queen Anne’s Revenge since 1998. In 2013, Allen found out that the State had allegedly been using his videos online without his consent. While the parties entered into a settlement agreement, requiring the State to compensate Allen for the use of the copyrighted material prior to the settlement date, Allen found out that the State had continued to use Allen’s copyrighted works after the settlement agreement without compensation both online and in print. In addition, the State government passed a law making all photographs and video material of shipwrecks in custody of North Carolina public record and available for use without limitations.

As a result, Allen filed a suit for declaratory judgment, arguing that the statute violates the Takings and Due Process clauses of the Constitution. The State argued that the Copyright Remedy Clarification Act did not effectively abrogate state sovereign immunity, and that individuals were still precluded from suing states for copyright infringement. After the lower court found for Allen, the State appealed to the US Court of Appeals for the Fourth Circuit. The U.S. Court of Appeals for the Fourth Circuit joined other circuits in holding that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment immunity.

In March 2020, in a 9-0 opinion, the Supreme Court held that Congress lacked authority to abrogate the states’ sovereign immunity from copyright infringement suits in the Copyright Remedy Clarification Act of 1990.

Supreme Court

Opinion (March 23, 2020)

Petition for certiorari

Allen petition for writ of certiorari (Supreme Court Jan. 4, 2019)

Allen application to extend time for filing cert petition (4th Cir. Oct. 18, 2018)

Amicus briefs

• Ralph Oman Amicus Brief supporting Allen (Supreme Court Feb. 7, 2019)

• RIAA Amicus Brief supporting Allen (Supreme Court Feb. 7, 2019)

• David Nimmer, et al, Amicus Brief supporting Allen (Supreme Court Feb. 7, 2019)

Merits stage

Cooper (North Carolina) Brief (Supreme Court Sept. 20, 2019)

Allen Brief (Supreme Court Aug. 6, 2019)

Amicus briefs

• Professor Simone Rose in support of Cooper (Sept. 27, 2019)

• West Virginia and 30 other states in support of Cooper (Sept. 27, 2019)

• ALA, ACRL, ARL, SAA, and SPN in support of Cooper (Sept. 27, 2019)

• Association of Public and Land-Grant Universities and Association of American Universities in support of Cooper (Sept. 27, 2019)

• Law Professors in support of Cooper (Sept. 27, 2019)

• Public Law Scholars in support of Allen (August 13, 2019)

• Ralph Oman in support of Allen (August 13, 2019)

• Constitutional Accountability Center in support of Allen (August 13, 2019)

• SIIA in support of Allen (August 13, 2019)

• ASMP, NPPA, NANPA, GAG, APA, and DMLA in support of Allen (August 13, 2019)

• RIAA, A2IM, and NMPA in support of Allen (August 13, 2019)

• Dow Jones & Co. in support of Allen (August 13, 2019)

• Law Professors in support of Allen (August 13, 2019)

• Oracle America in support of Allen (August 13, 2019)

• Washington Legal Foundation in support of Allen (August 13, 2019)

• Intellectual Property Law Association of Chicago in support of Allen (August 13, 2019)

• Association of the Bar of the City of New York in support of Allen (August 13, 2019)

• Copyright Alliance in support of Allen (August 13, 2019)

Fourth Circuit Court of Appeals

Opinion (July 10, 2018)

Allen Reply Brief (4th Cir. Dec. 18, 2017)

North Carolina Opening Brief (4th Cir. Aug. 21, 2017)

Amicus Briefs

• Copyright Alliance Amicus Brief supporting Allen (4th Cir. Oct. 20, 2017)

• Ralph Oman Amicus Brief supporting Allen (4th Cir. Oct. 20, 2017)

Eastern District Court of North Carolina

Order on motion to dismiss (Mar. 23, 2017)

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Canada Hockey LLC v. Texas A&M University

Post publish date: September 1, 2019

Sports author filed a lawsuit against state university, alleging a university entity copied an unpublished chapter of his work and posted it to their website without permission. Defendants moved to dismiss, claiming sovereign immunity.

The Southern District of Texas granted the motion to dismiss for all except one defendant. Claims against the Texas A&M Athletic Department were dismissed because the department is not a separate legal entity and lacks capacity to be sued. The ability to substitute the University itself as the proper defendant failed because it is a state entity and protected by sovereign immunity.

The Court declined to extend the Supreme Court’s holding in Central Virginia Community College v. Katz546 US 356 (2006), which held that Congress can abrogate state sovereign immunity under its Article I Bankruptcy Clause power, to copyright claims. In addition, because the district court is in the Fifth Circuit, it is bound by that court’s Chavez holding, which held that Congress did not properly abrogate state sovereign immunity for infringement claims when it passed the Copyright Remedies Clarification Act–but the Court does say in a footnote: “Although Plaintiffs ask the Court to circumvent binding precedent, and this Court is of course bound by the Fifth Circuit precedent before it and ultimately declines to adopt their reasoning, the Court thought the Plaintiffs’ arguments were worth noting.”

Plaintiff’s state takings claims were dismissed as barred by sovereign immunity, and its Federal takings claims were dismissed for not being ripe because plaintiffs failed to allege that they pursued claims in state court under Texas’s inverse condemnation procedure, which is required before alleging a federal takings claim.

Plaintiff also brought the same claims against three individual employees of the Department acting in their individual capacities. The Court denied dismissal of direct and contributory infringement and violations of 1202 against one of them, Marquardt (who was alleged to have actually found Bynum’s manuscript and had his secretary upload it to the University’s website), finding that the complaint adequately alleged facts showing he did not have qualified immunity. Claims against the other two individuals were dismissed.

Procedural History

Status: District Court for the Southern District of Texas affirmed motion to dismiss in part and denied motion in part. (March 29, 2019)

Order on Motion to Dismiss (March 29, 2019)

Sur-reply in opposition to defendants’ motion to dismiss (May 21, 2018)

Motion for leave to file sur-reply opposing defendants’ motion to dismiss (May 21, 2018)

Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss (November 30, 2017)

First Amended Complaint (April 17, 2017)

Complaint (Jan. 19, 2017)

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Brammer v. Violent Hues

Post publish date: April 1, 2019

Photographer Russell Brammer sued Violent Hues Productions for copyright infringement after the company used a copy of Brammer’s photograph on a website promoting its film festival, without permission. In June 2018, the U.S. District Court for the Eastern District of Virginia, on a motion for summary judgment, found in favor of Violent Hues, stating that the use constituted fair use. Brammer appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the district court made both legal and factual errors in granting the motion and applying the fair use factors.

On April 26, the Fourth Circuit reversed the district court decision. The court held that Violent Hues’ copying was not transformative because it made only minimal changes to Brammer’s photo’s context and content. It also held that the use was commercial; that Violent Hues’ claim of good faith does not aid its fair use defense; the district court erred in finding the published status of the photo weighed in favor of fair use; the third factor weighed against fair use because Violent Hues copied roughly half of the photo, and the portion taken constituted the “heart” of the work; and the taking would cause market harm.

Procedural History

Status: Fourth Circuit reversed and remanded.  (April 26, 2019)

Fourth Circuit Court of Appeals Decision (April 26, 2019)

U.S. District Court for the Eastern District of VA (June 11, 2018)

Amicus Briefs

Copyright Alliance

National Press Photographers Association, American Society of Media Photographers, Graphic Artists Guild, and American Photographic Artists

Digital Media Licensing Association (DMLA)

Arts & Entertainment Advocacy Clinic at Scalia Law School

Volunteer Lawyers for the Arts

Digital Justice Foundation

Violent Hues Production, LCC

More Copyright Cases are available on our Copyright Cases webpage

Rimini Street v. Oracle

Post publish date: March 1, 2019

Oracle brought claims, including copyright infringement claims, against Rimini Street, which provided third-party support for Oracle software and, in doing so, copied and distributed software updates without authorization. Oracle prevailed on its infringement claims in the district court, decisions that the Ninth Circuit affirmed. The Ninth Circuit also rejected Rimini Street’s argument that the district court erred when it awarded court costs under 17 USC §505 that were not considered taxable costs under 28 USC § 1920.

Rimini Street appealed to the Supreme Court, which granted cert on the question, “Whether the Copyright Act’s allowance of ‘full costs,’ 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.”

The Supreme Court reversed, holding that “full costs” means only the costs specified in the general costs statute, §§1821 and 1920.

Procedural History

Status: Supreme Court reversed in part and remanded. (March 4, 2019)

Decisions and Arguments

Rimini Street v. Oracle, Supreme Court decision (March 4, 2019)

Rimini Street v. Oracle, Supreme Court oral argument transcript (January 14, 2019)

Oracle v. Rimini Street, Ninth Circuit decision (January 8, 2018)

Briefs and party filings

Supreme Court

Rimini Street v. Oracle, Reply Brief for Petitioners (January 4, 2019)

Rimini Street v. Oracle, Brief for Respondents (December 13, 2018)

Rimini Street v. Oracle, Brief for Petitioners (November 13, 2018)

Amicus briefs in support of Oracle

Amicus briefs in support of Rimini Street or neither party

Petition for Certiorari

Rimini Street v. Oracle, Rimini Street reply brief (August 14, 2018)

Rimini Street v. Oracle, Oracle brief in opposition (August 1, 2018)

Rimini Street v. Oracle, Rimini Street cert petition (May 31, 2018)

VHT v. Zillow

Post publish date:

Zillow uses VHT’s photos to display in home listings on its main website. However, Zillow continued to use these photos on expired home listings and additionally used these works on their “Digs” site which was focused on home interior designs. VHT eventually sued Zillow in the Western District of Washington for copyright infringement of photographs of homes used on Zillow’s listing site and “Digs” site.

Judge Robart granted Zillow summary judgment on the volitional conduct claim and denied both parties’ summary judgment motions on direct and secondary infringement claims regarding the “Digs” site. The jury found Zillow liable for willful infringement and awarded VHT around $8 million in combined statutory and actual damages. Judge Robart reduced the award to around $4 million and only found Zillow liable for infringements of certain photographs. Judge Robart additionally found insufficient evidence to support the jury’s verdict on secondary liability. Both parties filed cross-appeals to the Ninth Circuit Court of Appeals.

The Ninth Circuit affirmed in part, reversed in part, and remanded on March 15, 2019. VHT filed a cert petition, which was distributed for conference by the Supreme Court October 1, 2019.

Court Opinions

Western District of Washington


On Appeal to the Ninth Circuit Court of Appeals

Party Filings:

  • VHT Inc.’s Brief
  • Zillow’s Brief

Amicus Briefs:


Fourth Estate v.

Post publish date:

Although copyright protection for US works is automatic, registering a copyright provides several benefits to copyright owners, including the ability to file a lawsuit for infringement. However, courts have split regarding whether the Copyright Act allows a copyright owner to file a lawsuit as soon as she has submitted all the materials required for a registration application, or whether she can only file suit after the Copyright Office has acted on the application by either issuing a certificate or rejecting the application. The difference may be significant, given that it currently takes an average of six months for the Copyright Office to process applications.

Fourth Estate Public Benefit Corporation, an online news producer, licensed some of its articles to, a news website. The license agreement required to remove any Fourth Estate produced articles once the license expired, but declined to do so. Fourth Estate brought a copyright infringement claim against, but Wall-Street moved to dismiss the claims on the grounds that Fourth Estate could not sue until after the Copyright Office acted on its copyright registration application. The United States District Court for the Southern District of Florida granted’s motion to dismiss, and the United States Court of Appeals for the Eleventh Circuit affirmed. In October 2017, Fourth Estate filed a Petition for Writ of Certiorari with the Supreme Court of the United States. Cert was granted and the Court heard oral arguments January 8, 2019.

The Supreme Court affirmed, holding that registration occurs, and a copyright claimant may commence an infringement suit, only after the Copyright Office registers a copyright or refuses registration.

Procedural History

– Supreme Court decision (March 4, 2019)
– Supreme Court Oral Arguments Transcript (January 8, 2019)
– Eleventh Circuit decision (May 18, 2017)

Status: Supreme Court affirmed. (March 4, 2019)

Party Filings:

– Fourth Estate Reply Brief (Nov. 13, 2018)
– Brief (Oct. 11, 2018)
– Fourth Estate Brief (Aug. 27, 2018)
– Fourth Estate Supplemental Brief (Cert) (June 5, 2018)
– Fourth Estate Reply Brief (Cert) (Dec. 13, 2017)
– Brief in Opposition (Cert) (Nov. 28, 2017)
– Petition for Writ of Certiorari (Cert) (Oct. 13, 2017)

Amicus Briefs

In Support of (Certificate Approach)

– United States (Cert) (May 16, 2018)
– U.S. Government (Oct. 18, 2018)
– Public Knowledge and R Street (Oct. 18, 2018)
– Washington Legal Foundation (Oct. 18, 2018)
– “Authors and Educators” (Peter Jaszi) (Oct. 18, 2018)

In Support of Fourth Estate Public Benefit Corporation (Application Approach)

– Copyright Alliance (Sept. 4, 2018)
– American Bar Association (Sept. 4, 2018)
– NMPA, RIAA, ASCAP, BMI, NSAI, and SONA (Sept. 4, 2018)
– Authors Guild and other Authors’ Rights Organizations (Sept. 4, 2018)
– International Trademark Association (Sept. 4, 2018)

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Capitol Records v. ReDigi

Post publish date: December 1, 2018

Capitol Records sued ReDigi—which “invites users to ‘sell their legally acquired digital music files, and buy used digital music from others at a fraction of the price currently available on iTunes’”—for direct and secondary copyright infringement. In March 2013, the United States District Court for the Southern District of New York ruled in favor of Capitol Records, finding ReDigi liable for direct, vicarious, and contributory infringement for its unauthorized reproduction and distribution of Capitol Records’ copyrighted sound recordings. ReDigi appealed to the Second Circuit.

On December 12, 2018, the Second Circuit affirmed the district court’s decision, holding that ReDigi infringed the reproduction right of Plaintiffs and was not protected by the first sale doctrine or fair use.

In an opinion written by Judge Leval:

  • The court affirmed the holding that Redigi’s service created a new copy of a sound recording, and the reproduction right is not subject to the first sale doctrine, which applies solely to a particular phonorecord.
  • The court declined to weigh in on whether Redigi engaged in a distribution of a phonorecord through its service.
  • The court rejected Redigi’s argument that its technical process of deleting the original copy of the file in the course of reselling a sound recording does not constitute a reproduction, holding that the deletion does not nullify the fact that a reproduction has been made.
  • The court rejected ReDigi’s fair use argument, finding
    • (1) under the first fair use factor, the reproduction is not transformative or add nothing new, and that, given the total absense of transformative purpose, the commercial motivation weighs against a finding of fair use under this factor;
    • (2) the second fair use factor plays no role here;
    • (3) the copying of the entire digital file disfavors fair use under the third factor; and
    • (4) “Factor Four weighs powerfully against fair use”, in particular because, unlike used physical copies, “used” digital files are identical to “new” digital files, and thus Redigi’s marketplace directly competes with Plaintiff’s primary market.
    • Weighing the factors together, and relying heavily on the Second Circuit’s TVEyes decision, the court concluded there was no justification for fair use here, saying “Even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiff’s copyrights through its direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”
  • Finally, the court rejected the policy-based arguments made by copyright law professors in an amicus brief supporting ReDigi that the first sale doctrine should be applied broadly to protect ReDigi “to vindicate purchasers’ ability to alienate digital copyrighted works under the first sale doctrine—emphasizing that §109(a) is styled as an entitlement rather than a defense to infringement—without regard to technological medium.” The court concluded, “If ReDigi and its champions have persuasive arguments in support of the change of law they advocate, it is Congress they should persuade. We reject the invitation to substitute our judgment for that of Congress.”

Procedural History

Second Circuit decision (Dec. 12, 2018)

Southern District of New York (Mar. 30, 2013)

Status: Supreme Court denied certiorari. (June 24, 2019)  Second Circuit affirmed the District Court for the Southern District of New York’s ruling. (December 12, 2018)

Amicus Briefs

  • AAP (May 12, 2017)

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