Richard Anderson Photography v. Radford University

• Decision Date: 23 April 1986
• Docket Number: Civ. A. No. 85-0373-R.
• Citation: 633 F. Supp. 1154
• Parties: RICHARD ANDERSON PHOTOGRAPHY, Plaintiff, v. RADFORD UNIVERSITY, et al, Defendants.
• Court: U.S. District Court — Western District of Virginia

633 F. Supp. 1154

RICHARD ANDERSON PHOTOGRAPHY, Plaintiff, v. RADFORD UNIVERSITY, et al, Defendants.

Civ. A. No. 85-0373-R.

United States District Court, W.D. Virginia, Roanoke Division.

April 23, 1986.

John M. DiJoseph, Arlington, Va., for plaintiff.

Joan W. Murphy, Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM OPINION

KISER, District Judge.

At issue in this copyright infringement action is whether the Commonwealth of Virginia has waived its Eleventh Amendment immunity. I hold that it has not.

I. Facts

Plaintiff Richard Anderson Photography (Anderson) has brought this copyright infringement action pursuant to the Copyright Act of 1976, 17 U.S.C. § 101, et seq., against Radford University, an educational institution of the Commonwealth of Virginia, the Visitors of Radford University, and Radford's Director of Public Relations and Information, Deborah L. Brown. In 1981, Radford entered into a contract with the North Charles Street Design Organization (NCSDO) of Baltimore, Maryland to produce a student prospectus. NCSDO retained Anderson, pursuant to the terms of the contract with Radford, to take photographs to be used in the 1982 student prospectus.¹ Plaintiff Anderson completed the work and the student prospectus was published. He subsequently obtained copyrights for the photographs used in this publication.

The Plaintiff alleges that the Defendants have infringed the copyrights in these photographs by using them, without authorization, in publications other than the 1982 student prospectus.² In the initial complaint, Anderson sought injunctive relief as well as damages. Since Anderson filed the complaint, however, Radford has returned the photographs to Anderson's possession, and Anderson has dropped his request for injunctive relief.

The Defendants have filed a motion to dismiss based on the Eleventh Amendment of the United States Constitution alleging that they are immune from liability in suits seeking damages.

II. Discussion

The Eleventh Amendment affords immunity to the States from suits brought against them in federal court.³ In particular, the Eleventh Amendment bars suits in federal court by private parties seeking to impose a liability which must be paid from public funds out of the state treasury. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). The immunity States and their officers enjoy from suit in federal court is not absolute, however. For example, the Eleventh Amendment does not bar prospective injunctive relief in federal courts against state officials. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).⁴

The Eleventh Amendment also does not bar suits against the States when a State has waived its Eleventh Amendment immunity, or if Congress, acting pursuant to Section Five of the Fourteenth Amendment, has abrogated the States' Eleventh Amendment immunity, which may be done without the States' consent. Atascadero State Hospital v. Scanlon, ___ U.S. ___, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Congress has the power to "abrogate" the States' Eleventh Amendment immunity without their consent because the Fourteenth Amendment is an inherent limitation on the States' power. See, Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). For Congress to do so, however, it must make its intention "unmistakably clear in the language of the statute." Atascadero, 105 S.Ct. at 3147 (Congress' prohibition in the Rehabilitation Act of 1973 against discrimination against the handicapped by "any recipients" of federal financial assistance did not abrogate the States' Eleventh Amendment immunity). See also, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (Congress did not abrogate the States' Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983; Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (Title VII of the Civil Rights Act of 1964 abrogates the States' Eleventh Amendment immunity).

A State may effect a "waiver" of its Eleventh Amendment immunity either expressly or impliedly. Each situation requires "an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment." Atascadero, 105 S.Ct. at 3145 n. 1. As the Supreme Court reasserted in Atascadero, "constructive consent is not a doctrine commonly associated with the surrender of constitutional rights." Id., quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974).

A State may, for example, expressly waive its constitutional immunity by a state statute or constitutional provision. Atascadero, 105 S.Ct. at 3145 n. 1, 3147 (state constitutional provision providing that "suits may be brought against the State in such manner and in such courts as shall be directed by law" did not specifically indicate the States' willingness to be sued in federal court).

Under limited circumstances, a State may also impliedly waive or "consent" to suit in federal court. Compare Parden v. Terminal Railway Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (by operating a railroad in interstate commerce, Alabama consented to suit in federal court under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60) with Atascadero (by accepting federal funds under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and by participating in programs funded under the statute, California did not consent to suit in federal court)⁵ and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (by participating in a matching funds program under the Social Security Act, 42 U.S.C. §§ 1381-85, Illinois did not waive its Eleventh Amendment immunity) and Employees v. Missouri Public Health Department, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) by engaging in the operation of hospitals and schools, Missouri did not consent to private suits in federal court under § 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b).⁶

Whether a State has impliedly waived its Eleventh Amendment immunity requires an additional determination to that of whether the State has "unequivocally indicated" its consent to suit in federal court. A court must also determine, as a threshold matter, whether Congress has authorized suits against "a class of defendants which literally includes States." Edelman, 415 U.S. at 672, 94 S.Ct. at 1360.⁷Compare Edelman (in this Social Security Act case, "the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent") with Parden (when Congress enacted the Federal Employers' Liability Act, it "conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court").

The Plaintiff in this case seeks relief under the Copyright Act of 1976, an act of Congress passed pursuant to the Copyright and Patent Clause of the United States Constitution, Art. I, § 8, cl. 8.⁸ Congress does not have the power to abrogate the States' Eleventh Amendment immunity without their consent unless it acts pursuant to § 5 of the Fourteenth Amendment. Atascadero, 105 S.Ct. at 3145, citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Therefore, in my view, the issue in this case turns not on whether Congress has abrogated the States' immunity, but on whether Virginia has waived it. Because there is no evidence that Virginia has expressly waived its Eleventh Amendment immunity, I shall address the question of implied waiver or consent.⁹

As a preliminary matter, I hold that Radford University, a public university, is an "arm of the state" for purposes of the Eleventh Amendment. The Plaintiff admits in his complaint that Radford is an "instrumentality" of the Commonwealth of Virginia, Complaint at 1 (paragraph 4). Moreover, it is quite clear in Virginia that state colleges and universities constitute "arms of the state" for purposes of the Eleventh Amendment. See, e.g., Jacobs v. College of William and Mary, 495 F.Supp. 183, 189-91 (E.D.Va.1980), aff'd., 661 F.2d 922 (4th Cir.1981), cert. denied, 454 U.S. 1033, 102 S.Ct. 572, 70 L.Ed.2d 477 (1981); Johnson v. University of Virginia, 606 F.Supp. 321, 322 (W.D.Va.1985). Therefore, Radford University enjoys whatever immunity the State enjoys.¹⁰

Having determined that Radford University is an "arm of the state" for purposes of the Eleventh Amendment, I must now evaluate whether the Commonwealth of Virginia has impliedly waived its constitutional immunity. To do so, I must first determine whether Congress, in enacting the Copyright Act of 1976, 17 U.S.C. § 101, et seq., authorized suits against "a class of defendants which literally includes States."

Section 501(a) of the Copyright Act of 1976 provides that "anyone who violates any of the exclusive rights of the copyright owner.... is an infringer under the Copyright Act" (emphasis added). The Plaintiff argues that this provision of the Act evinces Congress' intent to include States within the class of defendants against which Congress has authorized suit.

In support of this position, Plaintiff cites two cases: Johnson v. University of Virginia, 606 F.Supp. 321 (W.D.Va.1985) (Michael, J.) (decided under the "anyone" language of the 1976 Copyright Act); and Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir.1979) (decided under the "any person" language of the 1909 Copyright Act). In Mills Music, the United States Court of Appeals for the Ninth Circuit held that the language of the statute is "sweeping and without apparent limitation, suggesting that Congress intended to include states within the class of defendants." 591 F.2d at 1285. In Johnson, Judge Michael relied on Mills Music in holding that "the language of the 1976 Act "anyone" is at least as sweeping, and probably more sweeping, than the language of the 1909 Act "any person" in identifying the class...