LA Copyright Society

Wednesday, May 25, 2022

6:00pm Pacific

When States Infringe

The Curious Case of Copyright vs. Sovereign Immunity

In 1718, the infamous pirate Blackbeard sunk his renamed Queen Anne’s Revenge off the coast of what is now North Carolina. The wreckage was finally discovered in 1996 by a marine salvage company. Rick Allen’s Nautilus Productions spent nearly two decades filming the salvage and recovery efforts. North Carolina posted some of Nautilus’s videos online, used one of its still photographs in a print newsletter without permission and even passed ”Blackbeard’s Law” which purports to convert works like Nautilus’ Queen Anne’s Revenge footage into the public domain.

What was Rick’s recourse? None, said the United States Supreme Court, because Congress did not have the constitutional authority to abrogate state sovereign immunity in the Copyright Remedy Clarification Act.

In 2005, Jim Olive, a professional photographer, shot a number of aerial photographs of the City of Houston and posted them on his website for purchase. One of those shots was known as “The Cityscape.” The University of Houston, a public Texas research university, took a copy of The Cityscape and posted it on several websites for its business school without permission.

What was Jim’s recourse? None, said the Texas Supreme Court, because the University of Houston’s use of his photograph was not a constitutional taking under the Fifth Amendment. (The US Supreme Court, for its part, denied certiorari.)

Rick Allen and Jim Olive’s attorney, Owen McGovern, will discuss their cases – and the policy considerations underlying them – in a program moderated by our very own John Ulin.

Rick Allen is a broadcast video producer and cinematographer from North Carolina who has been producing documentaries and shooting video since 1983. His work has appeared on ABC, A&E, BBC, CBS, Discovery, TLC, National Geographic, 48 Hours, ESPN, Lifetime, Turner and more. Rick has followed SWAT teams on drug busts, traveled from Cuba to Kazakhstan with the 82nd Airborne, weathered live broadcasts during hurricanes and gone nose to nose with 14-foot Great White sharks during underwater expeditions. For nearly two decades, Rick was the official project videographer on Blackbeard’s Queen Anne’s Revenge Shipwreck Project. Rick’s Nautilus Productions has produced documentaries for National Geographic International, the Canadian History Channel, North Carolina Public Television, Texas A&M, the Louisiana State Museum and the Bureau of Ocean Energy Management (US Dept. of the Interior).

Owen McGovern is an associate at Beck Redden LLP, a Houston, Texas litigation boutique. A graduate of Notre Dame University and the Northwestern University School of Law, Owen clerked for the Honorable Gerald E. Rosen, Chief District Judge for the US District Court for the Eastern District of Michigan and the Honorable Edith Brown Clement of the 5^th Circuit US Court of Appeals. Owen’s practice focuses on appellate litigation, in which he has served as lead counsel on numerous appeals.

John Ulin is a longtime member of the LA Copyright Society, and a member of its Board of Trustees. John is a member of TroyGould PC in Los Angeles, California, where he has a general business litigation practice with an emphasis on intellectual property litigation with extensive trial experience. The Daily Journal has recognized John as one of California’s “Top Intellectual Property Lawyers,” and California Lawyer previously awarded him its “Attorney of the Year” award. A graduate of Brown University, the University of California School of Law (J.D.) and Harvard Law School (LL.M.), John clerked for the Honorable William Matthew Byrne, Jr. of the US District Court for the Central District of California and the Honorable Ferdinand F. Fernandez, of the 9^th Circuit US Court of Appeals.