Allen v. Cooper — State Sovereign Immunity Bars Copyright Infringement Claims Against States

Background

In 1996, a marine salvage company discovered the shipwreck of the Queen Anne’s Revenge — the flagship of the pirate Blackbeard — off the North Carolina coast. The state hired videographer Frederick Allen to document the recovery efforts over more than a decade. Allen registered copyrights in his videos and photographs.

When North Carolina began publishing Allen’s copyrighted videos and photos online without authorization or payment, Allen sued the state for copyright infringement. North Carolina moved to dismiss, invoking state sovereign immunity — the Eleventh Amendment doctrine that generally bars federal lawsuits against states. Allen pointed to the Copyright Remedy Clarification Act of 1990 (CRCA), in which Congress expressly said states could be sued for copyright infringement. The question: did Congress validly abrogate state immunity?

The Court’s Holding

Justice Kagan wrote for a unanimous Court: Congress did not validly abrogate state sovereign immunity in the CRCA. Following the framework from Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) — which similarly invalidated Congress’s abrogation of state patent immunity — the Court found that the CRCA lacked sufficient constitutional grounding.

Congress can abrogate state immunity only under Section 5 of the Fourteenth Amendment (to enforce constitutional rights like due process), and only when doing so is “congruent and proportional” to remedying documented constitutional violations by states. The legislative record supporting the CRCA was thin: there was little evidence of widespread, intentional copyright infringement by states that would justify such sweeping abrogation. Without that record, the CRCA exceeded Congress’s power.

Key Takeaways

• States have sovereign immunity from copyright infringement suits in federal court; Congress has not validly waived that immunity.
• Rights holders whose copyrights are infringed by state actors have no federal damages remedy — they are limited to state-court actions and potential equitable relief.
• Congress could potentially enact a new, valid abrogation statute if it builds an adequate legislative record documenting states’ intentional copyright infringement as a constitutional due process violation.
• The ruling leaves a significant enforcement gap for creators whose work is used by state universities, government agencies, and other state entities.

Why It Matters

Allen v. Cooper created an uncomfortable reality: states can infringe copyrights with virtual impunity from federal damages suits. This matters especially for the many creators — photographers, filmmakers, musicians, software developers — who do business with state universities, government agencies, and other state entities that digitize and distribute content.

The decision reopened a legislative question the Court invited: could Congress pass a new, constitutionally sound version of the CRCA? Scholars and advocacy groups have proposed various approaches, but no new law had been enacted as of early 2026. In the meantime, creators dealing with state entities must rely on contract protections, state court remedies, and careful licensing arrangements rather than federal copyright enforcement.