If the Supreme Court agrees to hear Allen v. Cooper, copyright owners and constitutional scholars will both be watching closely. The practical matter for copyright owners is whether a U.S. State, or agents of a State, may freely use copyrighted works without permission and remain immune from claims for infringement. As of now, the Fourth Circuit Court of Appeals contends that a State entity (e.g. a university) may use or make available an author’s music, photography, film clips, etc. without compensation or permission, and the rights holder has no remedy whatsoever. https://illusionofmore.com/can-u-s-states-infringe-copyrights-with-impunity/

How much has this cost you so far?

Yes this is a very interesting case. Let me digress a little. While producing a documentary series for the Australian Government, A 100 year History of the Royal Australian Navy, commissioned by the Dept of Defense Navy, we asked if this enabled the production to use copyrighted material. In a short answer it was YES based on this Australian government law which we called the get out of jail card:

"14.4

The Copyright Act contains a statutory licensing scheme for government use in pt VII div 2. Under this licence, government use of copyright material does not infringe copyright if the acts are done ‘for the services of the Commonwealth or State’.

1. When a government uses copyright material, it must inform the owner of the copyright and
agree on terms for the use.

2. However, if a collecting society has been declared in relation to a government copy, the government must pay the collecting society equitable remuneration for the copy.

It was during the legal research on what or what couldn't be used that we constantly came across references to US law covering the government use of copyrighted material. We archived a few of our researches for future reference. From what we discovered there is no per se "Fair Use" of copyrighted material entitlement for the US Federal Govt. How this relates to states I guess is up for argument. Looks like each case must be argued under law basically if there is a dispute as to the use of copyright material. Even if the government is entitled to use copyrighted material if it doesn't comply with the Fair Use doctrine it looks like there is a good case to made for payment for such use. Especially if the use of such material impinges on any of the four basic factors outlined here.

https://fairuse.stanford.edu/overview/fair-use/four-factors/

Section 2 & 5 of the following page is fairly explicit in explaining the governments obligations in this.

https://www.cendi.gov/publications/04-8copyright.html#511

Another piece although relating to photocopy copyright was also quite interesting.

U.S. Department of Justice GENERAL COUNSEL, DEPARTMENT OF COMMERCE

https://www.loc.gov/flicc/gc/fairuse.html

It appears that the main exceptions for the use of copyrighted material is under pretty strict educational guidelines.

https://www.pc.gov.au/__data/assets/pdf_file/0011/201170/subdr454-intellectual-property-attachment.pdf

Let's hope the case goes the way of the copyright holder.

Chris Young
Sydney