Governmental Use of Copyrighted Property: The Sovereign's Prerogative
This Article develops an analytical framework for evaluating unauthorized governmental uses of copyrighted property. The analytical framework categorizes governmental uses of copyrighted property into three major groups: the free bargaining paradigm, the compensated use paradigm, and the uncompensated use paradign. The free bargainng paradigm includes all voluntary transfers of any of the rights of copyright ownership from the copyright owner to a governmental entity. By contrast, both the compensated use and uncompensated use paradigms consist of involuntary transfers, with a government entity making compensation voluntarily in the former and refusing to compensate in the latter. This Article focuses on the compensated use and uncompensated use paradigms. In the compensated use paradigm, the nature of the transaction is that of a forced sale. In essense, this paradigm represents the exercise of the eminent domain power over copyrighted property. In contrast, the uncompensated use paradigm covers involuntary transfers in which the government body uses the copyrighted porperty without providing any compensation, thus forcing the copyright owner to litigate her claim for compensation. This paradigm parallels the law of inverse condemnation. Generally, the primary issue in uncompensated use cases is whether the government's actions constituted a taking. If there has been a taking, the court will effect what amounts to a forced purchase of the property and award the copyright proprietor compensation reflecting the purchase price of the copyrighted property. Part II of this Article demonstrates the propriety of exercising eminent domain over copyrighted property, and lays the groudwork for the difficult issues that arise under the uncompensated use paradigm. Part III explores these issues and argues that federal and state governments have the power to exercise eminent domain over copyrighted property and a transcendent right to use such property. It formulates a framework for distinguishing between governmental uses of copyrighted property that constitute takings mandating compensation and those that constitute fair use - unauthorized but sanctioned, uncompensated uses of copyrighted property. Part III also addresses the nature of a government's liability once a plaintiff establishes a taking of copyrighted property. Finally, it argues that precluding a copyright owner from recovering just compensation for unauthorized use of copyrighted property by a state government results in a due process violation, and thus calls for a modification of the eleventh amendment's traditional application in this context.
Roberta Rosenthal Kwall, Governmental Use of Copyrighted Property: The Sovereign's Prerogative, 67 Tex. L. Rev. 685 (1989)