Richard Anderson Photography v. Brown
| Decision Date | 20 July 1988 |
| Docket Number | No. 87-1610,87-1610 |
| Citation | 852 F.2d 114 |
| Parties | , 1988 Copr.L.Dec. P 26,303, 48 Ed. Law Rep. 84, 7 U.S.P.Q.2d 1417 RICHARD ANDERSON PHOTOGRAPHY, Plaintiff-Appellant, v. Deborah BROWN; Radford University, Defendants-Appellees. and VISITORS OF RADFORD UNIVERSITY; Bernice Thieblot; Armand Thieblot, Defendants, v. NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.; American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; Music Publishers' Association of the United States, Inc.; The Songwriters Guild of America; Volunteer Lawyers for the Arts, Inc.; Barbara Ringer; John M. Kernochan; William F. Patry; Association of American Publishers; Association of American University Presses, Inc.; Information Industry Association, American Intellectual Property Law Association, Amici Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Steven B. Rosenfeld (Peter L. Felcher, Marjorie L. Van Dercook, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on brief), for Amici Curiae Nat. Music Publishers' Ass'n, Inc., American Society of Composers, Authors and Publishers, Broadcast Music, Inc., Music Publishers' Ass'n of the U.S., and the Songwriters Guild of America.
John M. DiJoseph (Sattler & DiJoseph, Arlington, Va., on brief), for appellant.
Richard Crosswell Kast, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Paul J. Forch, Sr. Asst. Atty. Gen., Richmond, Va., on brief), for appellees.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harry G. Iwasko, Jr., Asst. Atty. Gen., Philip J. Smith, Asst. Atty. Gen., Lansing, Mich., on brief, for Amicus Curiae, The State of Mich. in support of appellees Radford University, et al.
Irwin Karp, Harriette K. Dorsen, New York City, on brief, for Amici Curiae Volunteer Lawyers for the Arts, Inc.
Barbara Ringer, Washington, D.C., John M. Kernochan, New York City, and William F. Patry, Washington, D.C., in support of appellant Richard Anderson Photography.
Jon A. Baumgarten, Minna Schrag, Andrew W. Reich, Proskauer, Rose, Goetz & Mendelsohn, New York City, on brief, for Amici Curiae The Ass'n of American Publishers, Inc., American Ass'n of University Presses, Inc. and Information Industry Ass'n.
Before PHILLIPS and CHAPMAN, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.
This appeal presents the questions whether the eleventh amendment provides immunity to a state educational institution, its governing board, and one of its officials, as sued in her official capacity, on a claim for damages under the Copyright Act of 1976, 17 U.S.C. Sec. 101 et seq. (the Act), and whether state law provides immunity to the state official as sued in her individual capacity. The district court found both eleventh amendment and state law immunity and dismissed all the claims. We affirm the dismissals on eleventh amendment grounds as to the state institution and its board and the official in her official capacity, though for different reasons than those given by the district court. We reverse the dismissal of the claim against the state official in her individual capacity on state law immunity grounds and remand that claim for further proceedings.
In 1981, Radford University, an educational instrumentality of the Commonwealth of Virginia (Radford), contracted with the North Charles Street Design Organization (NCSDO) of Baltimore, Maryland, to produce a student prospectus. NCSDO in turn contracted with the plaintiff-appellant in this action, Richard Anderson Photography, Inc. (Anderson), to provide the photographs for use in Radford's 1982 student prospectus. Anderson took and obtained copyrights for a large set of photographs, some of which ultimately were published in the 1982 prospectus, per the contract.
At some point, Anderson concluded that Radford, through defendant-appellee Deborah Brown, Radford's Director of Public Information and Relations, was making unauthorized use of the photographs in violation of Anderson's exclusive rights under 17 U.S.C. Secs. 106(1), (2), (3) and (5). Anderson then brought this action against Radford, its governing board, and Brown, alleging such a violation and seeking injunctive and monetary relief. When Radford returned the photographs, Anderson dropped the claim for injunctive relief but continued to pursue the claim for damages against all the named defendants.
The defendants then jointly moved for dismissal of the action on the basis of their eleventh amendment immunity as, respectively, instrumentalities and an official of the state. Anderson responded by urging alternatively that Congress in the Copyright Act had directly abrogated the states' eleventh amendment immunity to suits under that Act, or that the Commonwealth of Virginia had constructively consented to being sued for violations of the Act by participating, through the use of copyright materials, in an activity regulated by Congress.
The district court dismissed the claims against Radford, its Board, and Brown insofar as she was sued in her official capacity. Specifically the court held that Congress did not have the power to abrogate the states' eleventh amendment immunity except under section 5 of the fourteenth amendment, a source of power not available in its enactment of the Copyright Act. The court did not address the further question whether, had the power existed, Congress had effectively exercised it. The court also rejected Anderson's alternative claim that the Commonwealth had constructively consented to suit, thereby waiving its eleventh amendment immunity by participating, through use of copyright materials, in congressionally regulated activity. See Richard Anderson Photography, Inc. v. Radford Univ., 633 F.Supp. 1154, 1158-60 (W.D.Va.1986).
The district court, however, then sua sponte raised and invited briefing on the issue whether Brown might be liable on Anderson's claim in her individual capacity. In response, Brown contended that because in the conduct charged to her she was acting within the scope of her official authority, she could only be sued in her official capacity, in which capacity she had properly been held immune to suit under the eleventh amendment. Anderson responded that because Brown's conduct was allegedly illegal, she could not be considered as acting within her official authority, so that she was exposed to individual liability free of the eleventh amendment's immunity.
The district court, however, rejected both parties' contentions on this point and held, sua sponte, that Brown could be sued in her individual capacity for the copyright violation charged to her, but that in that capacity she was entitled, under Virginia state law, to the immunity provided by Virginia law to state officials in the performance of discretionary functions. On this basis, the court dismissed the claim against Brown in her individual capacity.
This appeal by Anderson followed.
With respect to its claims against Radford, the Radford Board, and Brown in her official capacity, hence effectively against the state, Anderson renews its arguments that the eleventh amendment provides no immunity. Two alternative theories are advanced.
The first theory is that Congress has directly abrogated the states' eleventh amendment immunity in its enactment of the Copyright Act. This argument in turn has two elements: first, that Congress has power under the Copyright and Patent Clause of the United States Constitution, art. I, Sec. 8, cl. 8, directly to abrogate the immunity of nonconsenting states to suits under the Act; and second, that Congress has effectively done so in the Copyright Act.
The second theory is that here the state, in any event, has constructively consented to suit, thereby impliedly waiving its immunity by participating in federally regulated conduct through its own copyright activities. 1
While these are conceptually different theories, they pose, under current doctrine, a common issue: whether Congress has effectively expressed its intention either directly to abrogate immunity, without regard to the states' consent, or to exact "constructive consent" to suit, hence, an "implied waiver" of immunity from the states as a condition of their participation in federally regulated, here copyright, activity. 2 Because the same basic test of congressional intent applies to both, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171 (1985); Welch v. State Dept. of Highways, --- U.S. ----, 107 S.Ct. 2941, 2947-48, 97 L.Ed.2d 389 (1987), and because resolving that issue may avoid the need to address any more fundamental issues of Congress' constitutional power to abrogate, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), we look first to the issue of congressional intent. See Welch, 107 S.Ct. at 2946-47.
That test, as recently refined by the Supreme Court in a series of critical decisions, is a most stringent one, couched deliberately in terms of constraints both upon the legislative power and the judicial interpretive process. Specifically, the Court has now held that because of the "fundamental nature of the interests implicated by the Eleventh Amendment," Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147, and "the vital role of the doctrine of sovereign immunity in our federal system," Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (Pennhurst II ):
Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute ... [and] it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the guarantees of the Eleventh Amendment.
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