Allen v. Cooper
The Supreme Court unanimously ruled that a federal law meant to allow copyright owners to sue state governments for infringement was unconstitutional, leaving creators without a clear federal remedy when a state uses their work without permission.
The decision means states — including public universities and government agencies — can infringe copyrighted material with limited legal exposure unless Congress drafts a new, more carefully targeted law.
How it got here: The federal district court upheld the copyright law as a valid abrogation of state immunity; the Fourth Circuit reversed; the Supreme Court agreed to hear the case because a federal statute had been struck down.
The Case in Depth
What happened
Frederick Allen, a videographer, spent more than a decade documenting the underwater salvage of Blackbeard's flagship — the Queen Anne's Revenge — off North Carolina's coast. He registered copyrights in his videos and photos. When North Carolina posted his work on its website and used his photo in a newsletter without permission, Allen sued the state for copyright infringement and sought money damages. North Carolina argued it was shielded by sovereign immunity, the constitutional principle that states generally cannot be sued without their consent.
The question before the Court
Can Congress legally strip states of their immunity from being sued in federal court for copyright infringement?
The Court's answer
No — Congress lacked constitutional authority to strip states of immunity from copyright infringement suits under the Copyright Remedy Clarification Act.
Congress can override state immunity only when a constitutional provision authorizes it. Allen offered two options. The first — Article I's Intellectual Property Clause — failed because the Court's 1999 ruling in Florida Prepaid had already held that Article I cannot override state sovereign immunity, and that rule applies equally to copyrights and patents. The second — Section 5 of the Fourteenth Amendment — requires that any law stripping state immunity be closely matched to evidence of real constitutional wrongdoing. The legislative record showed only a handful of state copyright infringements, most of them innocent mistakes, with no proof states were denying adequate remedies. That thin record could not justify a sweeping law exposing every state to every copyright suit.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Photographers, filmmakers, musicians, and other creators whose work is used by state agencies, public universities, or state broadcasters without permission have no straightforward path to federal court to recover damages. States can infringe copyrighted works and face little federal accountability unless Congress enacts a narrower replacement law or a state voluntarily waives its own immunity.
What changes now
Allen's lawsuit against North Carolina cannot proceed in federal court. The ruling does not permanently bar relief: the Court noted that Congress could pass a new, narrowly tailored copyright abrogation law — one backed by a stronger record documenting intentional state infringements and the absence of adequate state remedies. Until Congress acts, copyright holders whose work is used by state entities without permission will need to seek whatever remedies state courts or contract law may provide.
What this does not decide
The Court explicitly left open whether Congress could enact a more carefully targeted copyright law that would survive constitutional review. It also did not resolve whether copyrights qualify as "property" under the original meaning of the Fourteenth Amendment's Due Process Clause — a question Justice Thomas flagged as unresolved and worth addressing in a future case.
Concurrences and dissents
Concurrence in part — Justice Thomas
Justice Thomas agreed that the Copyright Remedy Clarification Act is unconstitutional and joined nearly all of the majority opinion. He wrote separately on three points: he disagreed with the majority's description of stare decisis, arguing courts have a duty to correct demonstrably erroneous precedent rather than requiring 'special justification'; he objected to the majority offering Congress guidance on how to pass future copyright legislation, saying the Court should rule only on the case before it; and he flagged as unresolved whether copyrights are 'property' under the original meaning of the Fourteenth Amendment's Due Process Clause.
Concurrence — Justice Breyer
Justice Breyer, joined by Justice Ginsburg, concurred only in the judgment. He argued that the foundational precedents — Seminole Tribe (1996) and Florida Prepaid (1999) — were wrongly decided and that Congress should be able to use the Intellectual Property Clause to make states pay for infringing copyrights and patents. But because his view had not prevailed and Florida Prepaid controls, he agreed the copyright law must fall.
How the Court got there
The legal reasoning, step by step
- Congress used unambiguous language in the Copyright Remedy Clarification Act to strip states of immunity from copyright suits — satisfying the threshold requirement that abrogation be unmistakably clear. But clear language alone is not enough; some constitutional provision must also authorize Congress to override state sovereignty.
- Allen's first argument was that Article I's Intellectual Property Clause gave Congress the power to make states pay for infringement, because otherwise Congress cannot truly 'secure' copyright holders' rights. The Court rejected this directly under Florida Prepaid v. College Savings Bank (1999), which had already applied the same logic to invalidate an almost identical patent statute. The general rule from Seminole Tribe v. Florida (1996) — that Article I cannot be used to strip states of sovereign immunity — controls here too.
- Allen also pointed to Central Virginia Community College v. Katz (2006), where the Court allowed the Bankruptcy Clause of Article I to subject states to bankruptcy proceedings, arguing this shows Article I should be read clause by clause. The Court disagreed: Katz was rooted in bankruptcy's unique founding history and the in rem nature of bankruptcy jurisdiction — making it a 'good-for-one-clause-only holding' that does not invite a broader re-examination of Article I.
- Congress's second potential tool is Section 5 of the Fourteenth Amendment, which empowers Congress to enforce the Amendment's guarantee that states cannot deprive people of property without due process. Copyrights are a form of property. But Section 5 legislation must satisfy a 'congruence and proportionality' test — first established in City of Boerne v. Flores (1997) — meaning it must be carefully matched in scope to the constitutional harm Congress identified.
- To assess the constitutional harm, the Court examined the legislative record behind the copyright law. The Register of Copyrights' year-long study found only about a dozen examples of state infringement, and the Register himself acknowledged the violations were not widespread — mostly 'honest mistakes' rather than the intentional or reckless conduct required to trigger a due process concern. The record also contained no analysis of whether states offered adequate alternative remedies, even though an available state remedy would itself satisfy due process.
- Because the evidence of actual constitutional violations was vanishingly thin — mirroring the deficient record the Court had already rejected for the patent law in Florida Prepaid — the copyright law's broad reach (exposing all states to every copyright suit, with no targeting of intentional infringement or denial of remedies) was wildly out of proportion to any documented due process problem. The law aimed to create uniform copyright enforcement generally, not to remedy constitutional wrongs specifically, and so failed the congruence-and-proportionality test.
Doctrinal impact
Cases affected by this decision
Reaffirms Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank (527 U.S. 627)
Applied directly to copyright, confirming it controls on both Article I and Section 5 grounds.
Reaffirms Seminole Tribe of Fla. v. Florida (517 U.S. 44)
Reaffirmed that Article I powers cannot be used to strip states of sovereign immunity.
Limits Central Va. Community College v. Katz (546 U.S. 356)
Confined to the Bankruptcy Clause alone; it does not invite clause-by-clause re-examination of Article I.