“If ViacomCBS believes that the Space Force seal infringes on its copyrights, then it can sue the U.S. government. But if a hypothetical North Carolina Space Force decided to use the Starfleet seal without permission, then ViacomCBS would be left without recourse against the state government.”
Earlier this week, the Supreme Court handed down its ruling in Allen v. Cooper, which relates to photos and videos of the sunken remains of the Queen Anne’s Revenge, the centuries-old ship once captained by the famed pirate Blackbeard. The plaintiff in that case claimed that North Carolina unlawfully used his copyrighted works.
Only two months earlier, the Trump Administration also faced a copyright infringement imbroglio. Following the official Twitter unveiling of the seal for the newly created U.S. Space Force, critics noted that the seal bore a striking similarity to that of Starfleet, the scientific and military force in the fictional universe of the television and film property, Star Trek. While some pointed to the (fairly far-fetched) trademark implications of the Space Force logo, many voices on the Internet also alleged that the government infringed on the copyright for the Starfleet seal.
These two cases have brought the issues of copyright infringement and sovereign immunity into the spotlight. To resolve them, one must first look to the tenets of copyright law.
A Hypothetical Star Trek/ Space Force Battle for Copyright
There are two elements to copyright infringement: copying the protected work and the copying went so far as to constitute improper appropriation. In cases where direct evidence cannot be used to determine copying, the court will look to circumstantial evidence, specifically two main factors: access to the protected work and substantial similarities between the protected work and the allegedly infringing work.
Thus, in a hypothetical Star Trek/Space Force copyright infringement case, the court would likely conclude that the designer of the Space Force seal had access to the Star Trek seal, given the prevalence of the Star Trek properties and its impact on society. This is similar to a popular song on the radio; an infringer would have access to the song simply because it was on the radio all the time. In fact, George Harrison of the Beatles found himself in a situation just like this back in the 1970s.
Courts have been willing to disregard differences between a protected work and an allegedly infringing work if the latter evokes the same message or sentiment as the former when considering the “totality” of the works. Thus, even though there are slight differences between the two seals in our hypothetical Star Trek/Space Force case, a court could still find that there is infringement because of the works’ similarities and the common message that they evoke.
When evaluating the substantial similarities between two works, courts will often use the “Abstraction-Filtration-Comparison” method. Abstraction involves acknowledging similarities between two works when they both relate back to the same high-level concept. For example, two romance movies might both have characters professing their undying love for each other at another person’s wedding, but this wouldn’t be infringement because this aspect of the story is an abstract element that is common throughout works in the romance genre.
The filtration step involves filtering out these abstract similarities, as well as other non-protectable elements of a work, like elements from the public domain, scenes a faire, or elements that are widely used in a specific craft for efficiency reasons.
Comparison is the final step in this process. After identifying and filtering out any non-protectable elements, courts will then compare the protectable elements—the so-called “golden nugget” of the work—with elements found in the allegedly infringing work.
Returning to our hypothetical Star Trek/Space Force case, a court might use this “Abstraction-Filtration-Comparison” method to conclude that there are enough substantial similarities between the works to warrant a finding of copyright infringement. On the other, the court could find that any similarities between the two seals stem from their common source material, namely the earlier seals used by NASA and the United States Air Force Space Command.
Fortunately for ViacomCBS—the owner of the Star Trek copyrights—the United States has waived its sovereign immunity in copyright infringement cases. This would allow ViacomCBS to bring its lawsuit against the government in our hypothetical Star Trek/Space Force case. However, the question of copyright infringement is more complicated when it comes to state sovereign immunity. The Supreme Court answered this question in Allen v. Cooper.
State Sovereign Immunity and Copyright Infringement
As mentioned above, the plaintiff in Allen took photographs and videos of salvation and preservation work being done on Blackbeard’s pirate ship, which sunk off the coast of North Carolina in 1718. Allen registered copyrights in his works. North Carolina used Allen’s copyrighted works without his permission, and he sued the state in 2013. The two parties settled, but Allen soon found that North Carolina was again using his copyrighted works without permission. North Carolina refused to admit wrongdoing, so Allen took his copyright infringement lawsuit all the way up to the Supreme Court.
Critically, unlike our hypothetical Star Trek/Space Force case, there was no question of copying in this case, as North Carolina did not deny copying Allen’s works. Therefore, a copyright infringement analysis like the one presented above was unnecessary in Allen. The only question remaining was whether North Carolina’s state sovereign immunity protected it from copyright infringement claims.
Allen argued that Congress had abrogated the States’ sovereign immunity in cases like his by enacting the Copyright Remedy Clarification Act (CRCA) of 1990. This law stated that States “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity” from copyright infringement lawsuits brought in federal courts. Similarly, the law held that States would be held liable “in the same manner and to the same extent” as private parties in these types of cases.
In reviewing Allen’s argument, the Court noted that two conditions needed to be satisfied for a federal court to adjudicate a suit against non-consenting States: (1) “unequivocal statutory language” abrogating the States’ immunity, quoting Seminole Tribe of Florida v. Florida, and (2) the existence of a constitutional provision allowing Congress to abrogate the States’ immunity for that specific claim, citing Kimel v. Florida Bd. of Regents.
The Court held that the CRCA provided “unequivocal statutory language” abrogating the States’ sovereign immunity in copyright infringement suits, and that Allen had thus satisfied the first of the two conditions. However, it also held that Congress lacked the authority to abrogate the States’ immunity in this area of the law. Consequently, the Court invalidated the CRCA, and ruled in favor of North Carolina.
This holding allows States to engage in copyright infringement without any legal restraints or consequences. As Justice Breyer wrote in his concurrence, “[O]ne might think that Walt Disney Pictures could sue a State (or anyone else) for hosting an unlicensed screening of the studio’s 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels). Yet the Court holds otherwise.”
He noted that for infringing States to be held liable for copyright infringement (or patent infringement, for that matter), Congress must pass a new statute that is more “tailored” than the CRCA. “[F]aced with the risk of unfairness of authors and inventors alike, perhaps Congress will venture into this great constitutional unknown. That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss.”
A Cosmic Conundrum
To unpack the result of this decision, let’s return to space. In a hypothetical scenario in which a private citizen infringed on the Star Trek copyrights, ViacomCBS could easily bring a lawsuit against them. If ViacomCBS believes that the Space Force seal infringes on its copyrights, then it can sue the U.S. government. But if a hypothetical North Carolina Space Force decided to use the Starfleet seal without permission, then ViacomCBS would be left without recourse against the state government.
To paraphrase Justice Breyer, something certainly seems “amiss” about this disparity. As he suggested in his concurrence, this case creates the potential for quite the cosmic copyright conundrum.
Image Source: Deposit Photos
Image ID: 111582128