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Copyright Blog

Final Chapter for an Infringement Suit

The University of Colorado was found to have sovereign immunity from copyright infringement suits

Since November, we have been tracking photographer Julie Dermansky’s copyright infringement suit against the University of Colorado. After the suit was filed, the University moved for the suit to be dismissed under principles of sovereign immunity, arguing that Congress had not properly abrogated state sovereign immunity for copyright actions. Dermansky responded, arguing the contrary. The issue of state sovereign immunity for copyright actions has come up several times in recent months, and the United States Supreme Court made a ruling on the topic in its opinion in Allen v. Cooper which we reported on two weeks ago. On the same day the Supreme Court handed down its opinion in Allen v. Cooper, the District Court issued a ruling in Dermansky’s case.

The Court first determined that the University is an “arm of the state,” consistent with prior case law. The Court pointed to the test used by the Tenth Circuit for determining whether an entity constitutes an arm of the state. The four factors of the test are essentially: (1) whether the entity is identified as an agency of the state; (2) the degree of control the state exercises over the entity; (3) the amount of state funding the entity receives; and (4) whether the entity is concerned primarily with local or state affairs. Because the University is a state-owned university, it is obvious that it is an “arm of the state.”

The next issue the Court addressed is whether Congress properly abrogated state sovereign immunity for copyright claims. Using identical reasoning to the Supreme Court’s opinion in Allen v. Cooper, the Court found Congress lacked constitutional authority when it enacted the Copyright Remedy Clarification Act of 1990. The Court found Congress did not have power under the IP Clause in Article I of the Constitution, nor did Congress have authority under Section 5 of the Fourteenth Amendment. Thus, Congress had not abrogated state sovereign immunity for copyright actions. The Court concluded its ruling by granting the University’s motion to dismiss for lack of subject matter jurisdiction.