Re: State Susceptibility to Suit for Copyright and Patent Infringement

From: Dan L Burk <BURKDANL[_at_]shu.edu>
Date: Thu, 30 Jul 1998 11:39:37 -0400

On 07/29/98, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> The angel stamp being sold by the US Postal Service is a detail from a
> painting by Raphael (The Sistine Madonna) that I believe is owned by
> the Vatican.
>
> Assuming that no permission has been sought, and no royalties are
> being paid, am I correct in assuming -- from the drift of the State
> susceptibility thread -- that the Postal Service would be immune to
> suit as a branch of the US government?

It would be, but probably isn't. Setting aside the merits of the suit (Raphael long ago fell into the public domain), as a sovereign, the federal government is immune from suit -- note this is *not* Eleventh Amendment immunity as in the case of the states, because the Eleventh Amendment does not address the federal government. However, the federal government has waived immunity for many purposes, including some types of intellectual property infringement. So depending on the type of claim you are thinking might be brought, the government may still be a proper defendant.

There is an additional wrinkle regarding the particular status of the Postal Service, since I believe they are an independent government corporation -- this may effect their ability to raise the sovereign immunity defense in the first place.

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Dan L. Burk
Seton Hall University
burkdanl[_at_]shu.edu

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Received on Thu Jul 30 1998 - 15:33:49 GMT