Recently it came to my attention that there is a gray area in the Copyright Act that is easily exploited. What I am talking about is called Sovereign Immunity and what it means is that government agencies, schools, and universities don’t have to play by the same rules as everyone else who wants to license an image for use.
We understand the need of good education and the lack of funding but there shouldn’t be two sets of rules, right? But, is Sovereign Immunity Copyright Injustice?
The case that was brought to my attention involves Mike Boatman of East Peoria Illinois was brought to light when the University of South Carolina Asheville used an image Mr. Boatman had taken and is the rightful copyright owner. This image had previous licensing history to paying clients and has significant value for the photographer. The image is registered with the copyright office and the Library of Congress, the image was clearly watermarked ©Mike Boatman 2008, and there was a text box on the website underneath the image clearly stating “All photographs property of Mike Boatman and and the IRT.” Yet the university chose to ignore the posted copyright and applied a policy of their own (policy #79) which states;
Purpose: In pursuit of its mission and consistent with applicable laws and policy, UNC Asheville encourages faculty, staff, and students to make appropriate use of intellectual property and to share the results of their work. The following establishes policy to govern the use and ownership of intellectual property in order to achieve those ends in accordance with provisions of the Copyright Use and Ownership Policy of the University.”
This is not a case of an image mistakenly grabbed thinking it was available, this is a case of someone blatantly ignoring policies, laws, and in this writer’s opinion, moral judgment to better the university at the cost of a photographer.
The story is in depth and has a few twists and turns. Linked below is a PDF version of the story from Mike Boatman himself. Please take a few moments and read the entire saga that has been lasting for four years. Tell us your opinion in the comments and let us know what you think should be done about it.
You can get the entire PDF version as assembled by Mike or read the excerpts below:
Undisputed Facts Summary:
University of North Carolina Asheville,
- Took intellectual property without authorization and used it for their own financial gain.
- When questioned about the ownership and copyright authorization of the image below, a assistant professor for the Atmospheric Sciences, UNC Asheville, stated quote “I grabbed that photo from a website last year but I can’t find it now. It is from the Motorola IRT Pro Nationals in Denver, CO.”
- When this issue was brought to the attention of The UNC Asheville General Counsel, Lucien Capone III…. Quote ”….the university as a state body, is immune from suit under the legal theory outlined in your letter, pursuant to the 11th amendment sovereign immunity…” “Further, if suit is brought against UNC Asheville, the University will pursue any and all actions available to it, including rule 11 sanctions as applicable.”
- To date UNC Asheville has made no apology or financial compensation for the unauthorized usage of Mike Boatman’s intellectual property nor have they made any compensation for the use of Kane Wasalenchuk’s, a professional athlete’s, personal image.
As blatant as this would be in the commercial or public world, a copyright infringement, which would include substantial penalties and compensation to the owner; in this case no crime has been committed by the University of North Carolina Asheville .
The section, “consistent with applicable law” means that this is code, applicable law, equals, sovereign immunity. In layman’s terms everything after this phrase is irrelevant because applicable law grants complete immunity for copyright infringements. The General Counsel’s letter substantiated this, see below.
You do not have the ability to promise/warrant 100% exclusivity to your work!!
Usage of your creation and designs that you sell to your clients are not 100% within your control nor your clients regardless if you copyright register your work and do all of the appropriate protocols to safeguard it. This is true regardless if you are a graphic artist, illustrator, filmmaker, recording artist or photographer, provided that, you’re relying on copyright law for these exclusivity rights.
Under certain conditions such as state sovereign immunity and fair use, 3rd parties completely unrelated to you, your client or the purpose for which the creative was made can use your images without your authorization. Most of us (creators) are aware of the restrictions and guidelines for fair usage, this is not my concern. Furthermore, a fair use can be challenged by the creator where as a federal judge is the only ultimate authority to determine if it is fair use or not. My concern is that these built in conditions and safeguards which govern unauthorized usage are not present in sovereign immunity. In my personal opinion, as a layperson, state sovereign immunity was an unattended loophole in the copyright law or better stated an accident.
Furthermore, there’s nothing I can do about it under copyright law, relevant to the University of North Carolina Asheville, who reap the the financial gain, under the United States copyright law because, state organizations have immunity. Although, the professor who admitted to grabbing the image may have personal liability even though it was the University that benefited financially. Universities, state parks or state operated programs that has not surrendered sovereign immunity, which I believe there are zero, has the legal right to take your creative and use it for their own financial gain without penalty of copyright law or compensating you (the creator). This is a known loophole at the copyright office which they’ve testified before Congress multiple times about. http://www.copyright.gov/docs/regstat72700.html or search http://www.copyright.gov for, state sovereign immunity
Implementation of this is simple, we the creative community can have our creative work used without authorization for the financial gain of any state organization whether or not we support or agree with that organization . Abuse of sovereign immunity has already occurred. To add insult to injury abuse of sovereign immunity does not violate any federal copyright laws. I guess it’s just a matter of integrity.
Even though a photographer can offer exclusivity to whom they grant a licenses to, it is impossible for a photographer to promise 100% usage exclusivity on their license agreements because of sovereign immunity.
In your own business, what would happen to your business, if you had granted an exclusive license of a marquee image that represented an entire corporate brand and it was used by a state organization third-party for completely unrelated issue or even a counter issue to your clients interest ?
So now almost 4 years later Mike publish this myself on his own blog. He has multiple goals here:
- To publicize the hypocrisy of the University of North Carolina Asheville.
- To bring awareness to the creative community about the loophole in the copyright law and its impact on our businesses. Which I think is best summarized in the conclusion of the copyright office testimony before Congress,” It is only logical that in the current legal environment, without an alteration of the status quo, infringements by States are likely to increase. Only Congress has the power to remedy the existing imbalance,…”
- And perhaps, give the copyright office, hard evidence of a clear-cut case of sovereign immunity abuse, that they can use next time they testified before Congress about crafting a correction to close the sovereign immunity loophole.
- Lastly, to fulfill my responsibility to my clients by exhausting all possible lines of defense for an unauthorized usage of an image; they paid for.
Thank you so much for your attention,
Note from Beate: This has been settled since. Please take a look at http://www.photobizcoach.com/2014/02/17/update-sovereign-immunity-photography/