States have something called sovereign immunity. It is provided by the Eleventh Amendment to the U.S. Constitution and prevents a state from being liable for damages in a law suit. Many people do not realize this because they have heard of law suits against a state. Such suits are allowed because many states have enacted laws that allow specific kinds of actions against them. Unfortunately for the artist, one suit that might not be allowed against a state is one for damages from a state's copyright infringement.

In 1990 and 1992 respectively, the U.S. Congress enacted the Copyright Remedy Clarification Act and the Trademark and Patent Remedy Clarafication Act with the intent that these laws would allow a state to be sued for any and all copyright, trademark and patent infringement remedies, including money damages. It was thought that such a law would be valid as the highest court in the U.S. had ruled prior that Congress could use its commerce clause power to avoid state immunity.

This past March, the U.S. Supreme Court apparently reversed itself and ruled that Congress cannot ignore the limitations to federal jurisdiction which are established by the Eleventh Amendment. Therefore, Congress does not have the power to allow actions against states in federal court.

What all this legalese means to artists is that if you had written a song or taken a photograph and had done everything you are supposed to do to protect your ownership in the work - register the copyright, include copyright notice, use strong written contracts, etc. - a state government or agency could use your work without permission and not be liable for damages. Therefore, your song could appear in a commercial created by a state-run tourist council or your photograph could be used in a catalog created by the state university, and you would not be entitled to damages from the state.

You may have the right to seek some relief though. If the infringing ad campaign was created for the state by a private company, you may be able to sue that company for damages. Also, the owner of the copyright may be entitled to stop a state from committing any further infringing uses, even if money damages are not available. Of course, the trick is to detect the infringing activity and stop it before it causes you damages which you cannot retrieve from the state due to its immunity.


THIS WEBSITE CANNOT BE USED AS A SUBSTITUTE FOR SOUND LEGAL ADVICE FROM A COMPETENT ARTS OR ENTERTAINMENT ATTORNEY. In the event of a legal problem or question, specific legal consultation is advised. This website is intended only as a means of educating arts organizations and artists of all disciplines as to their potential legal rights and liabilities. The information provided is made available with the understanding that neither OSLA nor the office of David M. Spatt is engaging in the rendering of legal counsel.

copyright 1997 David M. Spatt, All rights reserved

Reproduction is prohibited without the express written consent of the author