State Sovereign Immunity and Copyright with Rick Allen & Kevin Madigan

You wouldn’t think that a state entity would have the right to seize your intellectual property any more than it would have the right to seize other forms of property without due process. But it can. In this podcast, I talk with filmmaker Rick Allen and copyright expert and advocate Kevin Madigan about the challenge that state sovereign immunity poses to creators of copyrightable works.

Rick Allen is the CEO of Nautilus Productions in North Carolina. He spent seventeen years documenting the research and recovery work done on Blackbeard’s flagship the Queen Anne’s Revenge, after it was discovered off the North Carolina coast in 1996. When the state made infringing uses of Allen’s material, he sued, and that case Allen v. Cooper went to the U.S. Supreme Court in 2020, which affirmed that immunity barred Allen’s claim.

Kevin Madigan is Vice President, Legal Policy and Copyright Counsel at the advocacy organization Copyright Alliance in Washington D.C. He was previously Deputy Director at the Center for the Protection of Intellectual Property (CPIP) at George Mason University’s Antonin Scalia Law School. 

Contents

  • 1:34 – Overview of state sovereign immunity.
  • 5:53 – Rick Allen background & eventual conflict with North Carolina.
  • 16:21 – Why Blackbeard’s Law & what about breach of contract?
  • 19:32 – Why SCOTUS took Allen v. Cooper & what did we get out of it?
  • 22:38 – SCOTUS seemed disappointed in its own opinion.
  • 26:45 – States own IP, but enjoy immunity from infringement.
  • 28:08 – Results of survey & is state infringement increasing?
  • 31:57 – Anecdotal observations about state infringement.
  • 35:02 – Aberration of justice to have to show mass infringement.
  • 38:37 – Can have a devastating effect on creators.
  • 39:55 – Are we increasing state actors’ awareness of their immunity?
  • 42:04 – State remedies do not really exist.
  • 50:20 – Allen’s takings claim.
  • 52:45 – Where do things stand?
  • 54:47 – Funny coincidences.
  • 56:30 – Understanding the impact on Allen and all creators.
  • 59:04 – Substantial investment in works.
  • 01:001:58 – Copyright doesn’t protect labor.
  • 01:03:13 – The myth that creators will create no matter what.

© 2021, David Newhoff. All rights reserved.

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