If you took a photo and Harvard put it on its website without permission, you could sue the university for copyright infringement and win. Not if the University of Texas did the same thing. The Supreme Court has a chance to end the double standard that allows state institutions to run roughshod over copyrights, the legal fountainhead of American creativity.
On Tuesday the justices hear oral arguments in Allen v. Cooper. Videographer Frederick Allen documented the excavation of Blackbeard’s famous pirate ship, the Queen Anne’s Revenge. The 1718 shipwreck was discovered off the North Carolina coast in 1996.
Blackbeard isn’t the only pirate in this tale. The North Carolina Department of Natural and Cultural Resources published Mr. Allen’s works on its website despite signing an agreement recognizing him as the copyright holder. So he sued the state for infringement. The trial court allowed the suit to go forward, but the Fourth U.S. Circuit Court of Appeals threw out Mr. Allen’s case, holding that states can’t be sued for copyright infringement because of their sovereign immunity under the 11th Amendment.
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