Photographer Mike Boatman recently discovered that one of his images had been infringed in a very egregious way. The infringer took his photo, not even bothering to remove the watermark, and used it prominently in a promotional site designed to drum up to attract new customers.
While he got attribution for his image, as a professional photographer who licenses his work, it was not just an infringement, but a direct affront to his business. However, Boatman had covered his bases and the work was properly registered with the U.S. Copyright Office. It seemed like an open and shut case for a lawsuit.
Unfortunately, Boatman ran into a very serious problem. The infringer wasn’t a corporation or a person, but rather, the University of North Carolina Asheville. Suing them, as Boatman would soon learn, is nearly impossible due to a concept known as sovereign immunity, a rule that makes it nearly impossible to drag state and state agencies being a into a federal court and collect damages.
It’s a bizarre quirk in the law that allows states, and various bodies under them, such as UNC Asheville, to infringe with relative immunity. Though there have been multiple attempts to close this loophole, they have not been successful and there is no clear solution to the problem on the horizon.
As such, it’s crucial for every content creator, large and small, to be aware of the rules surrounding sovereign immunity and, more importantly, what your options are if your work is infringed by a state government entity.Continue Reading