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State sovereign immunity to copyright infringement: what you need to know

Finnegan, Henderson, Farabow, Garrett & Dunner LLP


The Supreme Court’s forthcoming decision in Allen v Cooper is likely to decide the constitutionality of the Copyright Remedies Clarification Act (CRCA) and, in so doing, immunity defences to copyright infringement, as well as the two main avenues by which the CRCA may be found constitutional: the Intellectual Property Clause and the Fourteenth Amendment.  This webinar will provide practical guidance on these issues with an emphasis on the industries in which they tend to arise.

The webinar will provide an introduction to the Copyright Remedies Clarification Act and the constitutional challenge in Allen v Cooper, including:

  • the historical application of the sovereign immunity defence to copyright claims;  
  • context and passage of the Copyright Remedies Clarification Act; and
  • Allen v Cooper: procedural history, issues briefed and oral argument.

The webinar will also focus on practical considerations for copyright infringement and related claims against state actors, including:

  • availability of direct constitutional claims for willful infringement;
  • waiver of sovereign immunity;
  • availability of injunctive relief under Ex Parte Young; and
  • enforceable contracts with state actors.


Samuel V Eichner

Sam Eichner’s practice focuses on copyright and trademark litigation, with experience ranging from strategy and motion practice to jury selection and trial advocacy. Sam has successfully argued motions, cross-examined witnesses, conducted depositions and contributed to prevailing briefs. He also has significant experience with oppositions and cancellations before the Trademark Trial and Appeal Board of the US Patent and Trademark Office as both enforcement and defence counsel.

Margaret A Esquenet

Margaret Esquenet focuses on contemporary issues in US and global copyright, advertising and trademark law. She leads litigation teams defining the scope of copyright protection, trademark infringement and advertising substantiation on traditional and emerging platforms. She provides legal counsel across all media, in all facets of branding, advertising, and marketing. Margaret is experienced in First Amendment and media rights and has been tapped as an IP legal expert for National Public Radio and Bloomberg BNA stories.


Samuel V. Eichner
Margaret A. Esquenet


11 February 2020
16:00 - 16:55 UTC
55 min