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Copyright Blog

Plaintiff Challenges University's Reliance on Sovereign Immunity

Plaintiff’s lawyers respond to the University of Colorado’s motion to dismiss on grounds of sovereign immunity.

Last month, we gave an update on photographer Julie Dermansky’s ("Dermansky") case against the University of Colorado (the "University"). Dermansky alleged a University assistant professor infringed the copyright in one of her photographs in an online post. In our recent update, we reported that the University moved for the case to be dismissed, asserting sovereign immunity.

Now, Dermansky is arguing that the University cannot rely on sovereign immunity and that the case must move forward. In Dermansky’s response to the University’s motion, Dermansky argues that Congress indeed abrogated the states’ sovereign immunity in copyright actions. Dermansky points to language from Sections 511 and 911 of the Copyright Act:

"Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person.... including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title."
17 U.S.C. §§ 511(a); 911(g)(1).

Dermanksy further purports that Congress enacted these provisions pursuant to Congress’s IP power enumerated in Article I of the Constitution. Dermansky argues that the University has simply asked the court to ignore Section 511(a) of the Copyright Act in its motion to dismiss. Dermansky urges the court to "properly enforce the Congressional language as written."

Dermansky also points to case law supporting that Congress did intend to abrogate state sovereign immunity under its Article I power, based on the legislative history of the Copyright Remedy Clarification Action of 1990 (17 U.S.C. § 511(a), quoted in part above). Accordingly, Dermansky asks that the University's motion to dismiss be denied, and the case move forward.

State sovereign immunity has been a hot-button topic recently in copyright litigation. The Supreme Court's forthcoming decision in Allen v. Cooper will clarify whether states and state entities may assert sovereign immunity for copyright suits in the future.