On March 23, 2020, the United States Supreme Court held that the Copyright Remedy Clarification Act of 1990 (CRCA) is unconstitutional and therefore invalid. See Allen v. Cooper, No. 18-877, 589 U.S. ___ (2020). Prior to Allen, the CRCA provided a means for individuals to sue states for copyright infringement by expressly abrogating the states’ sovereign immunity in that realm. But as a result of the Court’s recent decision, states are once again totally immune from copyright infringement lawsuits.
The facts of Allen date back to 1718, when the infamous pirate Blackbeard ran his flagship vessel (the Queen Anne’s Revenge) aground on a sandbar off the coast of what is now North Carolina, causing the ship to sink. The shipwreck was discovered nearly 300 years later, and due to its location, the wreck itself is owned by North Carolina state. Upon learning of the discovery, the state of North Carolina hired a salvage company to excavate the wreck, which in turn hired Allen to document the numerous recovery missions. For over a decade, Allen photographed and filmed the underwater missions to salvage the shipwreck, and Allen registered copyrights in all of the works. This dispute arose from Allen’s claims that North Carolina had infringed some of those copyrights by using and reproducing Allen’s photographs and videos online without his permission. See Allen, No. 18-877, slip op. at 1–2.