State-Owned University Claims Suit Must Be Dismissed

In November, we reported on a suit brought by photographer Julie Dermansky (“Dermansky”) against the University of Colorado (“the University”) for alleged copyright infringement. The photograph at issue was used in an assistant professor’s internet post.

The University has moved for the case to be dismissed, asserting sovereign immunity. In its motion, the University purports that sovereign immunity can only be abrogated by Congress, and that Congress has not properly abrogated sovereign immunity for copyright claims in the Copyright Remedy Clarification Act (17 U.S.C. § 511(a)) (“the Act). The University argues that the Constitution does not authorize Congress to abrogate sovereign immunity for copyright claims, as Congress attempted to do in the Act. The University also argues that the Fourteenth Amendment "would not have authorized Congress to enact" the Act. The University cites case law in support of its position that Congress has not validly abrogated sovereign immunity for copyright claims.

The issue of sovereign immunity has been raised many times in various cases, and was most recently reported on here, with the parties in that case asking for the litigation to be stayed until a decision from the Supreme Court in the case of Allen v. Cooper is handed down. The Supreme Court's decision in Allen will clarify whether States and State entities may assert sovereign immunity for copyright suits in the future.