Copyright Case

Allen v. Cooper

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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