                                      PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                       No. 17-1522


FREDERICK L. ALLEN; NAUTILUS PRODUCTIONS, LLC,

            Plaintiffs - Appellees,

v.

ROY A. COOPER, III, as Governor of North Carolina; SUSI H. HAMILTON,
Secretary of the North Carolina Department of Natural and Cultural Resources, in
her official capacity; SUSAN WEAR KLUTTZ, former Secretary of the North
Carolina Department of Natural and Cultural Resources, individually; D. REID
WILSON, Chief Deputy Secretary of the North Carolina Department of Natural
and Cultural Resources, in his official capacity; KARIN COCHRAN, former
Chief Deputy Secretary of the North Carolina Department of Natural and Cultural
Resources, individually; KEVIN CHERRY, Deputy Secretary of the North
Carolina Department of Natural and Cultural Resources, individually and in his
official capacity; G. NEEL LATTIMORE, Director of Communications of the
North Carolina Department of Natural and Cultural Resources, in his official
capacity; CATHERINE A. OLIVA, Director of Marketing of the North Carolina
Department of Natural and Cultural Resources, in her official capacity; CARY
COX, former Assistant Secretary, Marketing and Communications of the North
Carolina Department of Natural and Cultural Resources, individually; STEPHEN
R. CLAGGETT, a/k/a Steve Claggett, State Archaeologist, individually and in his
official capacity; JOHN W. MORRIS, a/k/a Billy Ray Morris, Deputy State
Archaeologist - Underwater and Director of the Underwater Archaeology Branch
of the North Carolina Department of Natural and Cultural Resources, individually
and in his official capacity; NORTH CAROLINA DEPARTMENT OF
NATURAL AND CULTURAL RESOURCES; STATE OF NORTH
CAROLINA,

            Defendants - Appellants,

and

FRIENDS OF QUEEN ANNE’S REVENGE, A NON-PROFIT CORPORATION,
               Defendant.

-----------------------------

THE COPYRIGHT ALLIANCE; RALPH OMAN,

               Amici Supporting Appellees.



                                         No. 17-1602


FREDERICK L. ALLEN; NAUTILUS PRODUCTIONS, LLC,

               Plaintiffs - Cross-Appellants,

v.

ROY A. COOPER, III, as Governor of North Carolina; SUSI H. HAMILTON,
Secretary of the North Carolina Department of Natural and Cultural Resources, in
her official capacity; SUSAN WEAR KLUTTZ, former Secretary of the North
Carolina Department of Natural and Cultural Resources, individually; D. REID
WILSON, Chief Deputy Secretary of the North Carolina Department of Natural
and Cultural Resources, in his official capacity; KARIN COCHRAN, former
Chief Deputy Secretary of the North Carolina Department of Natural and Cultural
Resources, individually; KEVIN CHERRY, Deputy Secretary of the North
Carolina Department of Natural and Cultural Resources, individually and in his
official capacity; G. NEEL LATTIMORE, Director of Communications of the
North Carolina Department of Natural and Cultural Resources, in his official
capacity; CATHERINE A. OLIVA, Director of Marketing of the North Carolina
Department of Natural and Cultural Resources, in her official capacity; CARY
COX, former Assistant Secretary, Marketing and Communications of the North
Carolina Department of Natural and Cultural Resources, individually; STEPHEN
R. CLAGGETT, a/k/a Steve Claggett, State Archaeologist, individually and in his
official capacity; JOHN W. MORRIS, a/k/a Billy Ray Morris, Deputy State
Archaeologist - Underwater and Director of the Underwater Archaeology Branch
of the North Carolina Department of Natural and Cultural Resources, individually
and in his official capacity; NORTH CAROLINA DEPARTMENT OF
NATURAL AND CULTURAL RESOURCES; STATE OF NORTH
CAROLINA,



                                                2
            Defendants - Cross-Appellees,

and

FRIENDS OF QUEEN ANNE’S REVENGE, A NON-PROFIT CORPORATION,

            Defendant.


Appeals from the United States District Court for the Eastern District of North Carolina,
at Raleigh. Terrence W. Boyle, District Judge. (5:15-cv-00627-BO)


Argued: March 20, 2018                                          Decided: July 10, 2018


Before NIEMEYER and KING, Circuit Judges, and Leonie M. BRINKEMA, United
States District Judge for the Eastern District of Virginia, sitting by designation.


Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote
the opinion, in which Judge King and Judge Brinkema joined.


ARGUED: Ryan Y. Park, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants/Cross-Appellees. Susan Freya Olive, OLIVE &
OLIVE, P.A., Durham, North Carolina, for Appellees/Cross-Appellants. Andrew
Michael Gass, LATHAM & WATKINS LLP, San Francisco, California, for Amicus
Ralph Oman. ON BRIEF: Josh Stein, Attorney General, Matthew W. Sawchak,
Solicitor General, Amar Majmundar, Senior Deputy Attorney General, Olga E.
Vysotskaya de Brito, Special Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees.
G. Jona Poe, Jr., POE LAW FIRM, PLLC, Durham, North Carolina; David L. McKenzie,
OLIVE & OLIVE, P.A., Durham, North Carolina, for Appellees/Cross-Appellants. Kelly
M. Klaus, MUNGER, TOLLES & OLSON LLP, San Francisco, California, for Amicus
Copyright Alliance. Perry J. Viscounty, Allison S. Blanco, Costa Mesa, California,
Jennifer L. Berry, San Diego, California, Patrick K. O’Brien, LATHAM & WATKINS
LLP, San Francisco, California, for Amicus Ralph Oman.




                                            3
NIEMEYER, Circuit Judge:

       Frederick Allen, a videographer, and Nautilus Productions, LLC, Allen’s video

production company, commenced this action, which, at its core, alleges that North

Carolina, its agencies, and its officials (collectively, “North Carolina”) violated Allen’s

copyrights by publishing video footage and a still photograph that Allen took of the 18th-

century wreck of a pirate ship that sank off the North Carolina coast. Allen and Nautilus

obtained the rights to create the footage and photograph through a permit issued by North

Carolina to the ship’s salvors, and Allen subsequently registered his work with the U.S.

Copyright Office. Allen and Nautilus also seek to declare unconstitutional a 2015 state

law — N.C. Gen. Stat. § 121-25(b) (providing that photographs and video recordings of

shipwrecks in the custody of North Carolina are public records) — which Allen and

Nautilus claim was enacted in bad faith to provide the State with a defense to their federal

copyright infringement action.

       North Carolina filed a motion to dismiss under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), asserting sovereign immunity under the Eleventh Amendment,

qualified immunity, and legislative immunity.       North Carolina’s claim of sovereign

immunity prompted Allen and Nautilus to argue (1) that in a 2013 Settlement Agreement,

North Carolina waived sovereign immunity; (2) that in any event the federal Copyright

Remedy Clarification Act of 1990 had abrogated the State’s sovereign immunity; and (3)

that as to their claims for injunctive relief, Ex parte Young provided an exception to

sovereign immunity for ongoing violations of federal law.




                                             4
       The district court rejected North Carolina’s claims of immunity, and North

Carolina filed this interlocutory appeal. Allen and Nautilus filed a cross-appeal. For the

reasons that follow, we reverse and remand with instructions to dismiss with prejudice

the claims against the state officials in their individual capacities and to dismiss without

prejudice the remaining claims.


                                             I

       In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French

merchant vessel and renamed her Queen Anne’s Revenge. Teach armed the Revenge with

40 cannons and made her his flagship. But the following year, the Revenge ran aground

about a mile off the coast of Beaufort, North Carolina, and Teach abandoned her. Under

state law, the ship and its artifacts later became the property of North Carolina and

subject to its “exclusive dominion and control.” N.C. Gen. Stat. § 121-22.

       More than two-and-a-half centuries later, on November 21, 1996, Intersal, Inc., a

private research and salvage firm operating under a permit issued by North Carolina,

discovered the wreck of the Revenge, and on September 1, 1998, Intersal, along with

Maritime Research Institute, Inc., an affiliated entity, entered into a 15-year salvage

agreement with the North Carolina Department of Natural and Cultural Resources (“the

Department”).    Under the agreement, Intersal and Maritime Research acknowledged

North Carolina’s ownership of the shipwreck and the ship’s artifacts, and North Carolina

acknowledged Intersal’s and Maritime Research’s salvage rights, agreeing that Intersal




                                             5
and Maritime Research could retain a designated portion of the financial proceeds arising

from the sale of media relating to the Revenge and replicas of its artifacts.

       As relevant to this case, the agreement provided that:

       Except as provided in paragraph 20 and this paragraph, Intersal shall have
       the exclusive right to make and market all commercial narrative (written,
       film, CD Rom, and/or video) accounts of project related activities
       undertaken by the Parties.

The agreement, however, made an exception for the creation of a “non commercial

educational video and/or film documentary” and provided that the parties would

cooperate in making such an educational documentary. And Paragraph 20 provided:

       The Department shall have the right to authorize access to, and publish
       accounts and other research documents relating to, the artifacts, site area,
       and project operations for non commercial educational or historical
       purposes. Nothing in this document shall infringe to any extent the public’s
       right to access public records in accordance with Chapters 121 and 132 of
       the General Statutes of North Carolina.

The agreement also provided:

       [Maritime Research], Intersal and the Department agree to make available
       for duplication by each other, or, when appropriate, to provide the
       Department with, relevant field maps, notes, drawings, photographic
       records and other such technical, scientific and historical documentation
       created or collected by [Maritime Research], Intersal or the Department
       pursuant to the study of the site and the recovery of materials therefrom.
       These materials shall become public records curated by the Department.

       Following execution of this salvage agreement, Intersal retained Nautilus, Allen’s

production company, to document the salvage of the Revenge, and under that

arrangement, Allen accumulated, as he alleged in the complaint, “a substantial archive of

video and still images showing the underwater shipwreck and the efforts of teams of

divers and archaeologists to recover various artifacts from [it].” Allen registered 13


                                              6
copyrights in these materials with the U.S. Copyright Office, each copyright covering a

year’s worth of footage.

      In 2013, Allen and Nautilus took the position that the Department’s publication of

Allen’s work on the Internet without his consent infringed Allen’s copyrights, and this

prompted a dispute leading ultimately to a settlement agreement dated October 15, 2013,

to which the Department, Intersal, Nautilus, and Allen were parties. In that agreement,

none of the parties admitted to any wrongdoing but agreed to the clarification of

preexisting arrangements so that the salvage operation could continue.

      The 2013 Settlement Agreement divided Allen and Nautilus’s video and

photographic   documentation,    treating   some    of   the   footage   as   “commercial

documentaries” and some as “non-commercial media,” for purposes of clarifying the

parties’ respective rights.   With respect to “commercial documentaries,” the 2013

Settlement Agreement provided:

      Intersal, through Nautilus, has documented approximately fifteen (15) years
      of underwater and other activities related to the QAR [Queen Anne’s
      Revenge] project. For purposes of this Commercial Documentaries section,
      Intersal represents to [the Department] that Nautilus Productions shall
      remain Intersal’s designee. Intersal shall have the exclusive right to
      produce a documentary film about the [Revenge] project for licensing and
      sale. Intersal may partner with [the Department] if it chooses to do so. . . .
      If [the Department] and Intersal do not partner to make a documentary, the
      Intersal documentary script shall be reviewed by [the Department] for
      historical accuracy prior to final release by Intersal or its agents. Intersal
      agrees to allow [the Department] to use its completed documentary, free of
      charge, in its museums and exhibits for educational purposes.

With respect to “non-commercial media,” the Agreement provided in relevant part:

      All non-commercial digital media, regardless of producing entity, shall bear
      a time code stamp, and watermark (or bug) of Nautilus and/or [the


                                            7
      Department], as well as a link to [the Department], Intersal, and Nautilus
      websites, to be clearly and visibly displayed at the bottom of any web page
      on which the digital media is being displayed.

      [The Department] agrees to display non-commercial digital media only on
      [the Department’s] website.

As to Nautilus’s archival footage, the Agreement provided that archival footage and

photographs that did not “bear a time code stamp and a Nautilus Productions watermark

(or bug)” would be returned to Nautilus. But it also provided that the Department could

“retain, for research purposes, archival footage, still photographs, and other media that

contain a time code stamp and watermark [or bug], and as to such media [the

Department] [would] provide Nautilus with a current, accurate list.”

      Finally, the 2013 Settlement Agreement addressed the video footage and still

photographs as public records, providing:

      Nothing in this Agreement shall prevent [the Department] from making
      records available to the public pursuant to North Carolina General Statutes
      Chapters 121 and 132, or any other applicable State or federal law or rule
      related to the inspection of public records.

      During the recovery phase of the [Revenge] project, [the Department] and
      Intersal agree to make available to each other records created or collected in
      relation to the [Revenge] project. The entity requesting copies bears the
      cost of reproduction. Within one (1) year after the completion of the
      recovery phase, Intersal shall allow [the Department] to accession duplicate
      or original records that were created or collected by Intersal during the
      project and that are related to the site, or the recovery or conservation of the
      [Revenge] materials. Such records shall include relevant field maps, notes,
      drawings, photographic records, and other technical, scientific and
      historical documentation created or collected by [the Department] or
      Intersal pursuant to the study of the site and the recovery of materials
      therefrom. These materials shall become public records curated by [the
      Department]. All digital media provided by Intersal under the terms of this
      paragraph shall include a time code stamp and watermarks (or bugs).



                                             8
       Following execution of the 2013 Settlement Agreement, as Allen and Nautilus

alleged in their complaint, the Department “resumed infringing [Allen’s] copyrights” by

“publish[ing] . . . and/or display[ing]” various “works” on the Internet. The complaint

identified six “infringing works” along with their Internet addresses. Five of those works

were videos about the Revenge shipwreck that were posted on the Department’s YouTube

channel, and the remaining “infringing work” was a newsletter about North Carolina’s

maritime museums, which contained an article about the Revenge with one of Allen’s still

photographs.    Accordingly, Allen and Nautilus sent North Carolina a “Takedown

Notice,” and North Carolina maintained that it complied before the hearing on its motion

to dismiss filed in the district court. It provided the district court with documentary

evidence confirming that fact, and at oral argument on this appeal, counsel for Allen and

Nautilus also confirmed that the six alleged infringements had ceased.

      Allen and Nautilus commenced this action in December 2015, naming as

defendants the State of North Carolina, the Department, the Governor, and six officials in

the Department, among others. Except for the Governor, who was sued only in his

official capacity, each of the individual defendants was sued in both his or her official

and individual capacities. The complaint, as amended, contained five counts. In Count I,

Allen and Nautilus alleged that in 2015, the defendants enacted N.C. Gen. Stat. § 121-

25(b) (making shipwreck videos and photographs in North Carolina’s custody public

records) in bad faith to “create a defense” to the copyright infringement claim asserted in

Count II.   They sought a declaratory judgment that § 121-25(b) was unenforceable

because it was preempted by federal copyright law and was otherwise unconstitutional


                                            9
under the Takings Clause and Due Process Clause of the Constitution. In Count II, Allen

and Nautilus claimed copyright infringement under 17 U.S.C. § 501(a)–(b). In Count III,

they alleged that the defendants “acted under color of state law to enact § 121-25(b) and

to threaten plaintiffs . . . with enforcement thereof,” in violation of 42 U.S.C. § 1983.

Finally, in Counts IV and V, they alleged state law claims for unfair trade practices and

civil conspiracy. For relief, Allen and Nautilus sought, in addition to the declaratory

judgment sought in Count I, an order enjoining copyright infringement and enforcement

of § 121-25(b), as well as compensatory, statutory, treble, and punitive damages.

       North Carolina filed a motion to dismiss under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), maintaining that the institutional defendants and individual

defendants in their official capacities were shielded from suit in federal court by

sovereign immunity under the Eleventh Amendment and that the officials sued in their

individual capacities were entitled to qualified and legislative immunity. Allen and

Nautilus responded to the claim of sovereign immunity, arguing (1) that North Carolina

waived sovereign immunity in the 2013 Settlement Agreement; (2) that North Carolina’s

sovereign immunity was also abrogated by the federal Copyright Remedy Clarification

Act of 1990, 17 U.S.C. § 511; (3) and that, in any event, injunctive relief was available

under Ex parte Young, 209 U.S. 123 (1908). They also argued that the individual

officials could not invoke qualified immunity because reasonable officials under the

circumstances alleged would have known that they were violating Allen’s rights under

federal copyright law, and that they could not invoke legislative immunity because none

of the officials had performed any legislative functions.


                                            10
      Following a hearing, the district court, by order dated March 23, 2017, denied

North Carolina’s motion to dismiss as to Counts I and II, concluding that its Eleventh

Amendment immunity for those counts was validly abrogated by the Copyright Remedy

Clarification Act; that the state officials sued in their individual capacities were not

entitled to qualified immunity; and that a determination of those officials’ legislative

immunity would be “premature” at that time. It granted the motion as to the remaining

counts on the basis of sovereign immunity.

      From the district court’s interlocutory order, North Carolina filed this appeal,

challenging the district court’s denial of immunity in all forms. See P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (recognizing the right to

interlocutory appeal of an order denying sovereign immunity); Occupy Columbia v.

Haley, 738 F.3d 107, 115 (4th Cir. 2013) (same as to qualified immunity); England v.

Rockefeller, 739 F.2d 140, 142 (4th Cir. 1984), overruled on other grounds by Young v.

Lynch, 846 F.2d 960 (4th Cir. 1988) (same as to legislative immunity). Allen and

Nautilus cross-appealed, challenging several of the district court’s specific conclusions

regarding sovereign immunity.


                                             II

      Invoking the Eleventh Amendment, North Carolina and its officials acting in their

official capacities claim that they are immune from suit in federal court, see Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–01 (1984); Kentucky v. Graham, 473

U.S. 159, 169 (1985), and they contend that the immunity applies regardless of the form



                                             11
of relief sought by the plaintiffs, see Pennhurst, 465 U.S. at 101–02, 114 n.25; Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996).

       Allen and Nautilus disagree, arguing that North Carolina waived sovereign

immunity when it signed the 2013 Settlement Agreement; that the State’s sovereign

immunity was abrogated by the federal Copyright Remedy Clarification Act; and that, in

any event, Ex parte Young provides them with an exception for the injunctive relief they

request as to ongoing violations of federal law. We address these arguments in order.


                                             A

       The 2013 Settlement Agreement, on which Allen and Nautilus rely to argue that

North Carolina waived its sovereign immunity, provides in relevant part:

       In the event [North Carolina], Intersal, or [Allen and] Nautilus breaches this
       Agreement, [North Carolina], Intersal, or [Allen and] Nautilus may avail
       themselves of all remedies provided by law or equity.

Allen and Nautilus maintain that by agreeing to the availability of all remedies, North

Carolina agreed that the remedies being sought in this action may be obtained from it,

thereby effecting a waiver of sovereign immunity from suit in federal court.

       We cannot, however, read this provision as a waiver of North Carolina’s Eleventh

Amendment immunity. First, Eleventh Amendment immunity protects the States, their

agencies, and officials from suit in federal court. Yet, the subject provision in the 2013

Settlement Agreement makes no reference to federal court, state court or, for that matter,

any court. Moreover, the provision states only that each party may pursue available

remedies as provided by law or equity. Consequently, legal or equitable limitations on



                                            12
those remedies must also apply. And one of those limitations is that a State, its agencies,

and its officials acting in their official capacities cannot be sued in federal court without

their consent. We readily conclude that the provision falls far short of the clear statement

that is required to effect a waiver of Eleventh Amendment immunity. As the Supreme

Court has made clear, a State must expressly consent to suit in federal court to waive its

immunity under the Eleventh Amendment.             See Port Auth. Trans-Hudson Corp. v.

Feeney, 495 U.S. 299, 305–06 (1990); see also Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999) (explaining that “a State

does not consent to suit in federal court merely by consenting to suit in [its own] courts,”

or by “stating its intention to ‘sue and be sued,’” “or even by authorizing suits against it

‘in any court of competent jurisdiction’” (citations omitted)).


                                              B

       Allen and Nautilus also contend that Congress validly abrogated North Carolina’s

Eleventh Amendment immunity with the enactment of the Copyright Remedy

Clarification Act. That Act provides:

       Any State, any instrumentality of a State, and any officer or employee of a
       State or instrumentality of a State acting in his or her official capacity, shall
       not be immune, under the Eleventh Amendment of the Constitution of the
       United States or under any other doctrine of sovereign immunity, from suit
       in Federal court by any person . . . for a violation of any of the exclusive
       rights of a copyright owner provided by [federal copyright law].

17 U.S.C. § 511(a); see also id. § 501(a) (providing that “[a]nyone who violates any of

the exclusive rights of [a] copyright owner . . . is an infringer” and that “the term




                                              13
‘anyone’ includes any State, any instrumentality of a State, and any officer or employee

of a State or instrumentality of a State acting in his or her official capacity”).

       It is well established that any abrogation of a State’s Eleventh Amendment

immunity requires both a clear statement of congressional intent — which, to be sure,

§ 511 provides — and a valid exercise of congressional power. See Lizzi v. Alexander,

255 F.3d 128, 134 (4th Cir. 2001) (citing Seminole Tribe, 517 U.S. at 55), abrogated in

part on other grounds by Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).

Thus, the question presented here reduces to whether Congress validly exercised its

constitutional power when enacting the Copyright Remedy Clarification Act.

       Allen and Nautilus contend first that Congress validly enacted the Copyright

Remedy Clarification Act because it properly invoked Article I’s Patent and Copyright

Clause, which authorizes Congress to “secur[e] for limited Times to Authors and

Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const.

Art. I, § 8, cl. 8. But, as North Carolina correctly notes, that ground for enactment of an

abrogation is foreclosed by Seminole Tribe and its progeny, which make clear that

Congress cannot rely on its Article I powers to abrogate Eleventh Amendment immunity.

See Seminole Tribe, 517 U.S. at 72–73; Alden v. Maine, 527 U.S. 706, 731–33 (1999);

Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 636

(1999) (“Seminole Tribe makes clear that Congress may not abrogate state sovereign

immunity pursuant to its Article I powers; hence the Patent Remedy Act cannot be

sustained under either the Commerce Clause or the Patent Clause”).




                                              14
       Allen and Nautilus argue, however, that those cases were impliedly overruled by

the Supreme Court’s more recent decision in Central Virginia Community College v.

Katz, 546 U.S. 356 (2006), which relied on Article I’s Bankruptcy Clause to hold that a

proceeding initiated by a bankruptcy trustee to set aside preferential transfers by a debtor

to a state agency was not barred by sovereign immunity. The Katz holding, however, was

made in a completely distinguishable context that was unique to the Bankruptcy Clause,

and the Court limited its holding to that Clause. See id. at 362–77; see also id. at 362–63

(“The history of the Bankruptcy Clause, the reasons it was inserted in the Constitution,

and the legislation . . . enacted under its auspices immediately following ratification . . .

demonstrate that it was intended not just as a grant of legislative authority to Congress,

but also to authorize limited subordination of state sovereign immunity in the bankruptcy

arena”). Indeed, the Court made clear that its holding in Katz was not intended to

overrule Seminole Tribe and its progeny, stating that it was not disturbing the broader

jurisprudence regarding Congress’s power to abrogate Eleventh Amendment immunity.

See id. at 375 n.12, 378–79 (noting “the Framers’ intent to exempt laws ‘on the subject of

Bankruptcies’ from the operation of state sovereign immunity principles” and the

“limited” “scope of [the States’] consent” to this exemption); see also id. at 382 (Thomas,

J., dissenting) (noting that “the majority does not purport to overturn” “our established

sovereign immunity jurisprudence”). In short, even after Katz, it remains clear that

Congress cannot rely on the enumerated power in Article I over copyright to compel a

State to litigate copyright cases in a federal court.




                                              15
       Allen and Nautilus contend that, in any event, Congress validly enacted the

Copyright Remedy Clarification Act under the authority granted to it in § 5 of the

Fourteenth Amendment, which affords Congress the “power to enforce, by appropriate

legislation,” the Amendment’s substantive guarantees. U.S. Const. amend. XIV, § 5. As

they maintain, it is settled that Congress can abrogate sovereign immunity “through a

valid exercise of its § 5 power,” Hibbs, 538 U.S. at 727, because the Eleventh

Amendment and the principle of state sovereignty that it embodies “are necessarily

limited by the enforcement provisions of § 5 of the Fourteenth Amendment,” id. (quoting

Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)). North Carolina argues, however, that

Congress did not validly exercise its § 5 power in enacting the Copyright Remedy

Clarification Act because (1) it did not, as required, purport to rely on its § 5 authority,

and (2) it did not, as also required, tailor the Act to an identified, widespread pattern of

conduct made unconstitutional by the Fourteenth Amendment.

       In construing the scope of § 5 power, the Supreme Court has been careful to strike

a considered balance between upholding the dignity of States as sovereign entities, on the

one hand, and safeguarding individual rights protected by the Fourteenth Amendment, on

the other. It has accordingly explained that Congress has plenary authority to abrogate

sovereign immunity for claims arising from state conduct that amounts to an actual

violation of the Fourteenth Amendment’s substantive guarantees. See United States v.

Georgia, 546 U.S. 151, 158 (2006) (holding that Title II of the Americans with

Disabilities Act validly abrogated state sovereign immunity “insofar as [it] create[d] a

private cause of action for damages against the States for conduct that actually violates


                                            16
the Fourteenth Amendment”). The Court has also interpreted § 5 as permitting Congress

to abrogate sovereign immunity for “a somewhat broader swath of [state] conduct,

including that which is not itself forbidden by the [Fourteenth] Amendment.” Bd. of

Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001). Yet again, however, in

light of the competing equities at stake, it has circumscribed Congress’s authority to do

so in two respects. Congress must both (1) make clear that it is relying on § 5 of the

Fourteenth Amendment as the source of its authority and (2) ensure that any abrogation

of immunity is “congruen[t] and proportional[]” to the Fourteenth Amendment injury to

be prevented or remedied. Florida Prepaid, 527 U.S. at 639–42 (quoting City of Boerne

v. Flores, 521 U.S. 507, 520 (1997)).

      In this case, we conclude that in enacting the Copyright Remedy Clarification Act,

Congress satisfied neither requirement.

      First, it is readily apparent that in enacting the Copyright Remedy Clarification

Act, Congress relied on the Copyright Clause in Article I of the Constitution, rather than

§ 5 of the Fourteenth Amendment. This invocation of Article I authority was expressly

and repeatedly stated in the Act’s legislative history. See, e.g., H.R. Rep. No. 101-282,

pt. 1, at 7 (1989), as reprinted in 1990 U.S.C.C.A.N. 3949, 3955 (stating that, based on

“the Copyright Clause,” the bill would “effect[] a constitutional abrogation of State

sovereign immunity”); S. Rep. No. 101-305, at 8 (1990) (stating that “Congress has the

power under article I of the Constitution to abrogate the immunity of States” and

specifically citing Congress’s “plenary power” under “the Copyright Clause”); see also

Nat’l Ass’n of Boards of Pharmacy v. Bd. of Regents, 633 F.3d 1297, 1313 (11th Cir.


                                           17
2011) (“The legislative history of the [Copyright Remedy Clarification Act] makes clear

that Congress intended to abrogate state sovereign immunity under its Article I powers”).

Neither the text of the statute nor its legislative history indicates any invocation of

authority conferred by § 5 of the Fourteenth Amendment.            And without such an

invocation, the Act cannot effect a valid abrogation under § 5.

       This was made clear in Florida Prepaid, where the Supreme Court addressed the

constitutionality of the Patent Remedy Act, which abrogated the States’ immunity from

suit in federal court for patent infringement. After noting that the legislative history

indicated that Congress relied on the Commerce Clause, the Patent Clause, and § 5 of the

Fourteenth Amendment, the Court stated that the Commerce and Patent Clauses could

not sustain the Act in light of Seminole Tribe.      Florida Prepaid, 527 U.S. at 636.

Similarly, the Court rejected the plaintiff’s alternative argument that the Act could be

justified under the Fifth Amendment’s Just Compensation Clause:

       There is no suggestion in the language of the statute itself, or in the House
       or Senate Reports of the bill which became the statute, that Congress had in
       mind the Just Compensation Clause. . . . Since Congress was so explicit
       about invoking its authority under Article I and its authority to prevent a
       State from depriving a person of property without due process of law under
       the Fourteenth Amendment, we think this omission precludes consideration
       of the Just Compensation Clause as a basis for the Patent Remedy Act.

Id. at 642 n.7.

       Here, the legislative history of the Copyright Remedy Clarification Act shows that

Congress relied on its Article I power over copyrights and not on § 5 of the Fourteenth

Amendment, similarly “preclud[ing] consideration” of § 5 as a proper basis for the Act’s

abrogation of States’ Eleventh Amendment immunity.


                                            18
      Allen argues that the Supreme Court’s decisions in EEOC v. Wyoming, 460 U.S.

226 (1983), and Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), undermine any

need to invoke expressly the Fourteenth Amendment. In EEOC, the Court noted that

when exercising § 5 power, there is no need to “recite the words ‘section 5’ or

‘Fourteenth Amendment.’” 460 U.S. at 243 n.18. But that quotation does not help Allen

and Nautilus because the Court also explained that, regardless of whether the terms “§ 5”

or “Fourteenth Amendment” are used, it must “be able to discern some legislative

purpose or factual predicate that supports the exercise of [§ 5] power.” Id. More

importantly, EEOC was not a case about the abrogation of Eleventh Amendment

immunity, and the EEOC Court never addressed whether the legislation before it — the

Age Discrimination in Employment Act — was a valid exercise of Congress’s power

under § 5.

      Similarly, Kimel provides Allen and Nautilus with little support. The Kimel Court

concluded that the Age Discrimination in Employment Act’s abrogation of sovereign

immunity was invalid because it was not a congruent and proportional response to

unconstitutional age discrimination by the States. See Kimel, 528 U.S. at 91–92. They

argue that, because the Court reached that conclusion despite the absence of any

congressional invocation of the Fourteenth Amendment by Congress, no such invocation

should be required here. The Kimel Court, however, did not even mention the omission

on which Allen and Nautilus rely. And more to the point, no case since Florida Prepaid

has disavowed the Supreme Court’s instruction that an abrogation of sovereign immunity

cannot be sustained by a source of constitutional authority that Congress never invoked.


                                           19
See Beck v. McDonald, 848 F.3d 262, 273 (4th Cir. 2017) (explaining that “[t]his court is

‘bound by [the] holdings’ of the Supreme Court, not its ‘unwritten assumptions’”

(quoting Fernandez v. Keisler, 502 F.3d 337, 343 n.2 (4th Cir. 2007))).

       Not only did Congress not invoke its authority under § 5, it also did not, as

required, limit the scope of the Copyright Remedy Clarification Act to enforcement of

rights protected by the Fourteenth Amendment.          Rather, in abrogating sovereign

immunity, Congress used language that sweeps so broadly that the Act cannot be deemed

a congruent and proportional response to the Fourteenth Amendment injury with which it

was confronted.

       Our conclusion is required by Florida Prepaid, where the circumstances were

analogous to those before us.     The Supreme Court there concluded that the Patent

Remedy Act did not appropriately enforce the Fourteenth Amendment because there was

no “congruence and proportionality between the [Fourteenth Amendment] injury to be

prevented or remedied and the means adopted to that end.” Florida Prepaid, 527 U.S. at

638–39 (quoting City of Boerne, 521 U.S. at 519–20). While the Court acknowledged

that patents are a “species of property” and that patent infringement by States could

therefore implicate the Fourteenth Amendment’s prohibition against deprivations of

property without due process, it explained that a due process violation would not result

merely from a State’s infringement of a patent. Id. at 642–43. Rather, the infringement

would both have to go unremedied and have to be done intentionally or at least

recklessly.   See id. at 643, 645 (noting that “a [State’s] negligent act that causes

unintended injury to a person’s property does not ‘deprive’ that person of property within


                                           20
the meaning of the Due Process Clause” and that “Congress did not focus on instances of

intentional or reckless infringement on the part of the States”).

       Citing at length to the legislative record of the Patent Remedy Act, the Florida

Prepaid Court then determined that Congress was not faced with sufficient evidence of

unconstitutional patent infringement to justify abrogation. It observed that there were

fewer than 10 patent infringement suits against States in the century preceding the

enactment of the Patent Remedy Act; that most state infringement was apparently

accidental; and that while state remedies for governmental infringement were disuniform

and rather tenuous, the evidence before Congress did not prove such remedies to be

constitutionally inadequate. See Florida Prepaid, 527 U.S. at 640–45. In the Court’s

view, this evidence “suggest[ed] that the Patent Remedy Act does not respond to a

history of ‘widespread and persisting deprivation of constitutional rights’ of the sort

Congress has faced in enacting proper prophylactic § 5 legislation,” id. at 645 (quoting

City of Boerne, 521 U.S. at 526); rather, it provided only “scant support” for the assertion

that States were depriving patent owners of property without due process of law, id. at

646.

       The Court then compared that evidence to the Patent Remedy Act’s sweeping

abrogation provisions, which made the States liable for patent infringement to the same

extent as private parties, and concluded that the provisions were “‘so out of proportion to

a supposed remedial or preventive object that [they] [could not] be understood as

responsive to, or designed to prevent, unconstitutional behavior.’” Florida Prepaid, 527

U.S. at 646 (first alteration in original) (quoting City of Boerne, 521 U.S. at 532). In


                                             21
particular, the Court observed that Congress had done “nothing to limit the coverage of

the [Patent Remedy] Act to cases involving arguable constitutional violations,” such as

where a State authorized infringement as a matter of official policy or otherwise

intentionally infringed patents without providing any remedy. Id. at 646–47. Nor had

Congress included durational limits or abrogated immunity only for States presenting the

greatest incidence of infringement. Id. at 647. The absence of such tailoring, juxtaposed

with the limited evidence of unconstitutional patent infringement, “ma[de] it clear” that

the Patent Remedy Act did not appropriately enforce the Fourteenth Amendment. Id.

      In this case, a similar legislative record and an equally broad enactment likewise

leads to the conclusion that the Copyright Remedy Clarification Act’s abrogation of

sovereign immunity cannot be sustained under § 5.

      While we may presume that a copyright, like a patent, is a “species of property”

that could be deprived without due process in violation of the Fourteenth Amendment,

not every infringement violates the Constitution, as the Florida Prepaid Court explained.

To be sure, the legislative record of the Copyright Remedy Clarification Act did include

some evidence of copyright infringement by States that presumably violated the

Fourteenth Amendment’s Due Process Clause.           The record of such infringement,

however, was materially similar to that in Florida Prepaid.

      As Allen and Nautilus note, most of the evidence was compiled in a 1988 report

prepared at Congress’s request by Ralph Oman, who was then the United States Register

of Copyrights. See U.S. Copyright Office, Copyright Liability of States and the Eleventh

Amendment: A Report of the Register of Copyrights (June 1988) (“Oman Report”). In


                                           22
preparing the report, the Copyright Office solicited public comments regarding the issue

of state immunity from copyright claims and received several dozen responses from

various industry groups, among others, expressing grave concerns about the prospect of

such immunity. See Oman Report at 5–6. But, the Oman Report reveals that only five of

the commenters “document[ed] actual problems . . . in attempting to enforce their

[copyright] claims against state government infringers.” Id. at 7. And the commenters’

responses described at most seven incidents in which States invoked sovereign immunity

to avoid liability for copyright infringement. See id. at 7–9. Only two of those incidents

recounted in the Register’s Report — where States invoked sovereign immunity and

continued to display copyrighted films to prison inmates for free even after the copyright

holders notified them of the infringement — were described with sufficient detail to show

clearly the requisite willfulness of state officials to amount to a due process violation.

See id. at 7–8. Besides these incidents in the Oman Report, Congress learned of just a

few other comparable incidents of unremedied State infringement from hearing

testimony. See, e.g., Copyright Remedy Clarification Act and Copyright Office Report on

Copyright Liability of States: Hearings on H.R. 1131 Before the Subcomm. on Courts,

Intellectual Prop. & the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong.

139–40 (1990) (hereinafter, “House Hearing”) (testimony of Bert van der Berg,

President, BV Engineering Professional Software); The Copyright Clarification Act:

Hearing on S. 497 Before the Subcomm. on Patents, Copyrights & Trademarks of the S.

Comm. on the Judiciary, 101st Cong. 151–52 (1990) (hereinafter, “Senate Hearing”)

(statement of William Taylor). In total, even assuming that all of the incidents of


                                           23
unremedied infringement were intentional, the record before Congress contained at most

a dozen incidents of copyright infringement by States that could be said to have violated

the Fourteenth Amendment.

      This evidence plainly falls short of establishing the “widespread and persisting

deprivation of constitutional rights” that is required to warrant prophylactic legislation

under § 5. City of Boerne, 521 U.S. at 526. Indeed, the evidence here appears little

different in quality or quantity than the historical evidence underlying the Patent Remedy

Act, which was found insufficient in Florida Prepaid. Critically, in each case, Congress

did not identify an extant pattern of infringement giving rise to violations of the

Fourteenth Amendment across a significant number of States. See Florida Prepaid, 527

U.S. at 640. At most, the record of the Copyright Remedy Clarification Act, like that of

the Patent Remedy Act, indicated that there was a potential for greater constitutional

violations in the future and that Congress simply “acted to head off this speculative

harm.” Id. at 641; see also House Hearing, at 7 (Statement of Ralph Oman) (explaining

that the evidence of state infringement “demonstrated at least the potential for harm”);

Senate Hearing, at 42 (Statement of Ralph Oman) (“[W]e do not have a great deal of hard

evidence [of state copyright infringement]”).

      Acting against this backdrop of limited evidence, Congress enacted the Copyright

Remedy Clarification Act to make States broadly, immediately, and indefinitely

accountable for copyright infringement to the same extent as private parties, imposing

sweeping liability for all violations of federal copyright law, whether the violation

implicates the Fourteenth Amendment or not. See 17 U.S.C. §§ 501(a), 511. Congress


                                           24
thus declined to narrow whatsoever the Act’s reach, instead abrogating immunity

indiscriminately in a manner that was wholly incongruous with the sparse record of

unconstitutional conduct before it. This failure to adopt any limitation along the lines

discussed in Florida Prepaid cannot be reconciled with the requirement that legislation

enacted under § 5 be “tailor[ed] . . . to remedying or preventing [unconstitutional]

conduct.” Florida Prepaid, 527 U.S. at 639.

       Accordingly, we conclude that the Copyright Remedy Clarification Act’s

wholesale abrogation of sovereign immunity for claims of copyright infringement is

grossly disproportionate to the relevant injury under the Fourteenth Amendment, and

therefore the abrogation cannot be sustained as an enactment that “appropriate[ly]”

“enforce[s]” that Amendment.

       In concluding otherwise, the district court sought to distinguish the record in

Florida Prepaid by relying primarily on the “many examples of copyright infringements

by States” in the Copyright Remedy Clarification Act’s legislative history. In so relying,

however, the court failed to consider whether any of those examples involved intentional

and unremedied infringement, as Florida Prepaid clearly instructs.           Also, as an

alternative basis for holding that the Copyright Remedy Clarification Act had validly

abrogated North Carolina’s immunity, the district court relied on “the amount of suits

filed against allegedly infringing states in recent years.” That reliance, however, did not

comport with the Supreme Court’s determination that Congress must identify a pattern of

unconstitutional conduct before it abrogates Eleventh Amendment immunity.              See

Florida Prepaid, 527 U.S. at 639–40; see also Coleman v. Court of Appeals of Md., 566


                                            25
U.S. 30, 42 (plurality opinion) (“States may not be subject to suits . . . unless Congress

has identified a specific pattern of constitutional violations” (emphasis added)).

       In concluding that the Copyright Remedy Clarification Act does not validly

abrogate Eleventh Amendment immunity, we join the numerous other courts to have

considered this issue since Florida Prepaid, all of which have held the Act invalid. See,

e.g., Chavez v. Arte Publico Press, 204 F.3d 601, 607–08 (5th Cir. 2000); Issaenko v.

Univ. of Minn., 57 F. Supp. 3d 985, 1007–08 (D. Minn. 2014) (collecting a dozen cases).


                                               C

       Finally, Allen and Nautilus contend that, at the very least, their claims against the

state officials for injunctive and declaratory relief may proceed under the exception to

Eleventh Amendment immunity recognized in Ex parte Young, 209 U.S. 123 (1908).

The parties argued the issue before the district court, but the court, in light of its ruling on

the Copyright Remedy Clarification Act, did not address it. Because we reverse the

district court on abrogation, we address the Ex parte Young exception and conclude that

the exception does not apply in this case.

       Under Ex parte Young, private citizens may sue state officials in their official

capacities in federal court to obtain prospective relief from ongoing violations of federal

law. See Franks v. Ross, 313 F.3d 184, 197 (4th Cir. 2002); Antrican v. Odom, 290 F.3d

178, 184 (4th Cir. 2002). This exception to Eleventh Amendment immunity “is designed

to preserve the constitutional structure established by the Supremacy Clause” and rests on

the notion, often referred to as “a fiction,” that a state officer who acts unconstitutionally



                                              26
is “stripped of his official or representative character and [thus] subjected in his person to

the consequences of his individual conduct.” Antrican, 290 F.3d at 184 (quotation marks

and citations omitted). To invoke the exception, the plaintiff must identify and seek

prospective equitable relief from an ongoing violation of federal law. Id. at 186.

       Allen and Nautilus maintain that they have alleged two ongoing violations from

which they seek prospective relief: (1) North Carolina’s continuing infringement of

Allen’s copyrights and (2) its continuing enforcement of an unconstitutional statute,

namely, N.C. Gen. Stat. § 121-25(b), which designates images of shipwrecks in the

State’s custody as public records.

       As to the alleged ongoing copyright infringement, Allen and Nautilus identified in

their complaint six specific “infringing works” that are “now publicly viewable” at six

locations on the Internet, specifying the Internet address for each.         North Carolina,

however, maintains that shortly before the November 2016 hearing on its motion to

dismiss, it removed those allegedly infringing materials from the Internet and provided

exhibits to the district court to confirm that it had done so. While Allen and Nautilus

acknowledged at oral argument that the six alleged violations had ceased, they argue that

the complaint nonetheless alleged generally instances of ongoing Internet infringement

beside those six violations, referring to a paragraph that alleged, in a conclusory fashion,

that displays of copyrighted materials were continuing “at least at th[ose] locations.” But

such a general and threadbare catchall, suggesting the possibility of other infringing

displays, does not plausibly allege the existence of an ongoing violation of federal law.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,


                                             27
550 U.S. 544, 556–57 (2007)). In the same vein, Allen and Nautilus argue that because

they alleged a history of infringements both before and after the 2013 Settlement

Agreement, there is “no reasonable prospect that infringements will cease unless they are

enjoined.” This argument, however, which relies on the asserted possibility that North

Carolina will resume infringing Allen’s copyrights, conflates the Ex parte Young

exception with the doctrine of mootness. Even assuming that North Carolina has failed

to provide reasonable assurances that it will avoid infringing Allen’s copyrights in the

future, as would foreclose the voluntary-cessation exception to mootness, it remains

Allen’s burden in the context of sovereign immunity to establish an ongoing violation of

federal law to qualify for relief under Ex parte Young. See Watkins v. Blinzinger, 789

F.2d 474, 483–84 (7th Cir. 1986) (citing Green v. Mansour, 474 U.S. 64 (1985)); see also

DeBauche v. Trani, 191 F.3d 499, 505 (4th Cir. 1999) (noting that Ex parte Young

requires “an ongoing violation of federal law” and thus “does not apply when the alleged

violation . . . occurred entirely in the past”). Because the only ongoing infringement that

Allen and Nautilus plausibly alleged has concededly ended, they cannot employ the Ex

parte Young exception to address their fear of future infringements.

       Allen and Nautilus also identify as an ongoing violation North Carolina’s

purported continuing “enforcement” of § 121-25(b) to provide a defense against their

claims of copyright infringement.       This allegation, however, also cannot support

application of the Ex parte Young exception because when a plaintiff sues “to enjoin the

enforcement of an act alleged to be unconstitutional,” the exception applies “only where a

party defendant in [such] a suit . . . has ‘some connection with the enforcement of the


                                            28
Act.’” Hutto v. S.C. Ret. Sys., 773 F.3d 536, 550 (4th Cir. 2014) (emphasis added)

(quoting Ex parte Young, 209 U.S. at 157). As we explained in Hutto, the “requirement

that there be a relationship between the state officials sought to be enjoined and the

enforcement of the state statute prevents parties from circumventing a State’s Eleventh

Amendment immunity.” Id. We thus noted “that a governor cannot be enjoined by

virtue of his general duty to enforce the laws,” nor can an “attorney general . . . be

enjoined where he has no specific statutory authority to enforce the statute at issue.” Id.

By contrast, however, we have held that a State’s circuit court clerk had the requisite

connection to the enforcement of the State’s marriage laws to be enjoined from enforcing

them because the clerk was charged with the particular responsibilities for granting and

denying applications for marriage licenses. See Bostic v. Schaefer, 760 F.3d 352, 371 n.3

(4th Cir. 2014).

       In this case, Allen and Nautilus sued the State, the Governor, the Department, and

several Department officials, alleging at most that several of the officials supported

enactment of § 121-25(b) and providing no further explanation regarding any connection

between the officials and the challenged enactment. Indeed, Allen and Nautilus have not

even shown that § 121-25(b) can be enforced against a private party. In any event, in

view of the officials’ roles, it is apparent that none of them would or could have any role

in enforcing the statute, as required. See Hutto, 773 F.3d at 550.

       Accordingly, we conclude that Ex parte Young does not provide Allen and

Nautilus with an exception to the Eleventh Amendment immunity claimed by North

Carolina.


                                            29
                                              III

       The North Carolina officials who were sued in their individual capacity for

monetary damages contend that the district court erred in denying them qualified

immunity and legislative immunity from suit. In doing so, the district court explained

that these defendants were not protected by qualified immunity because “the law of

[copyright] infringement is clearly established.” The court also denied them legislative

immunity because it was “premature” to resolve that issue. As we explain, however, we

also reverse on these issues.

       Qualified immunity “shields officials from civil liability so long as their conduct

‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The inquiry as to

whether the law is “clearly established” is a demanding one:

       A clearly established right is one that is sufficiently clear that every
       reasonable official would have understood that what he [or she] is doing
       violates that right. In other words, existing precedent must have placed the
       statutory or constitutional question beyond debate.

                                       *      *       *

       The Supreme Court has repeatedly told courts . . . not to define clearly
       established law at a high level of generality. Thus, we consider whether a
       right is clearly established in light of the specific context of the case, not as
       a broad general proposition.

Adams v. Ferguson, 884 F.3d 219, 226–27 (4th Cir. 2018) (quotation marks and citations

omitted).




                                              30
       In this case, Allen and Nautilus obtained their rights to take videos and

photographs of the Revenge shipwreck from Intersal, who in turn obtained the rights from

the Department. And any rights that Allen and Nautilus have to those videos and

photographs are circumscribed by the provisions of the 2013 Settlement Agreement with

the Department. In that Agreement, Intersal asserted — and the Department, Allen, and

Nautilus agreed — that Intersal had documented “fifteen (15) years of underwater and

other activities related to the [Queen Anne’s Revenge] project” and that it had the right to

produce and retain an interest in a commercial documentary film about those activities.

The Agreement provided that the Department could “use [the] completed documentary,

free of charge, in museums and exhibits for educational purposes.” And the Agreement

provided, with respect to non-commercial digital media, that such media should bear “a

time code stamp and watermark” of “Nautilus and/or [the Department]” and that the

Department would display them only on the Department’s website. The Agreement also

provided that the Department could retain the archival footage with a time stamp and

watermark “for research purposes,” although it would return to Nautilus any footage and

photographs that did not bear a time code stamp and watermark. Moreover, it provided

that “[d]uring the recovery phase of the [Revenge] project, [the Department] and Intersal

[would] make available to each other records created or collected in relation to the

[Revenge] project,” (emphasis added), defining “records” to include “field maps, notes,

drawings, photographic records, and other technical, scientific and historical

documentation created or collected by [the Department] or Intersal pursuant to the study




                                            31
of the site and the recovery of materials therefrom.” These materials were designated

“public records” to be “curated by [the Department].” (Emphasis added).

       Notably, the 2013 Settlement Agreement stated that “[n]othing in [the] Agreement

shall prevent [the Department] from making records available to the public pursuant to

North Carolina General Statutes Chapters 121 and 132, or any other applicable State or

federal law or rule related to the inspection of public records.” At that time — i.e., in

2013, before § 121-25(b) was enacted — N.C. Gen. Stat. § 132-1 provided that “all . . .

photographs [and] films . . . made or received pursuant to law . . . in connection with the

transaction of public business by any agency of North Carolina” are “public records,”

and that it is “the policy of [the] State that the people may obtain copies of . . . public

records . . . free or at minimal cost unless otherwise specifically provided by law.”

       Based on these provisions of the 2013 Settlement Agreement and the then

applicable public records law, it is far from clear whether the Department was prohibited

from displaying Allen’s copyrighted materials in the manner alleged in the complaint.

This is especially so in view of the Department’s role in the salvage project to preserve

for the public the site and artifacts and to document their salvage in furtherance of

research and the education of the public.

       Of course, we need not resolve whether North Carolina’s display of the video

footage and the still photograph violated the Copyright Act to resolve the issue of

qualified immunity.    See Pearson, 555 U.S. at 231.        What we do conclude is that

reasonable officials in the position of the North Carolina officials would not have

understood beyond debate that their publication of the material violated Allen’s rights


                                             32
under the Copyright Act. The issue is indeed debatable. Accordingly, we conclude that

Allen and Nautilus’s copyright claims against the North Carolina officials in their

individual capacities are precluded by qualified immunity.

       We also conclude that legislative immunity shields the North Carolina officials in

their individual capacities for their alleged involvement in the enactment of § 121-25(b).

       The district court did not expressly resolve whether the individual officers were

entitled to legislative immunity, concluding instead that such a ruling would be

“premature.” But its deferral in ruling amounted to a denial of the immunity because the

immunity protects officials “not only from the consequences of litigation’s results, but

also from the burden of defending themselves” in court.          Supreme Court of Va. v.

Consumers Union, 446 U.S. 719, 732 (1980) (emphasis added); see also Nat’l Ass’n of

Soc. Workers v. Harwood, 69 F.3d 622, 639 (1st Cir. 1995) (noting that legislative

immunity is “not simply a defense to liability” but rather “an immunity from suit”).

Thus, the very purpose of the immunity is thwarted when an official must expend “time

and energy . . . to defend against a lawsuit” arising from his legislative acts. Bogan v.

Scott-Harris, 523 U.S. 44, 52 (1998). Accordingly, the North Carolina officials can

appropriately appeal the district court’s deferral in ruling on legislative immunity.

       Legislative immunity entitles public officials to absolute immunity for their

performance of legislative functions.        See Kensington Vol. Fire Dep’t, Inc. v.

Montgomery Cty., 684 F.3d 462, 470 (4th Cir. 2012). And it attaches whenever state

officials — including those outside the legislative branch — engage in any conduct

within the “sphere of legitimate legislative activity.” Id. (quoting Bogan, 523 U.S. at 54).


                                             33
Determining whether official conduct is shielded by legislative immunity “turns on the

nature of the act,” without regard to the “motive or intent” of the official performing it.

Id.

       In this case, the North Carolina officials were sued in their individual capacities

for “conspir[ing] to convert [Allen’s] copyrighted works into public documents” through

the enactment of § 121-25(b). But the only actual conduct alleged in furtherance of the

conspiracy — that the officers “wrote, caused to be introduced, lobbied for passage of,

and obtained passage” of § 121-25(b) — is quintessentially legislative in nature and falls

squarely within the scope of legislative immunity. Allen and Nautilus’s only argument to

the contrary is that the complaint alleges that the officers sought enactment of § 121-

25(b) with impure motives, seeking to benefit an affiliated nonprofit entity and to remove

the threat of legal liability.    As noted, however, motive is irrelevant to the issue.

Kensington Vol. Fire Dep’t, 684 F.3d at 470; McCray v. Md. Dep’t of Transp., Md.

Transit Admin., 741 F.3d 480, 485 (4th Cir. 2014) (noting that “[l]egislative immunity is

a shield that protects despicable motives as much as it protects pure ones”).


                                       *       *      *

       For the foregoing reasons, we reverse each of the district court’s rulings on

immunity and remand with instructions that the district court dismiss without prejudice

Allen and Nautilus’s claims against North Carolina, the Department, and the public

officials acting in their official capacities and to dismiss with prejudice the remaining

claims against the officials in their individual capacities.



                                              34
REVERSED AND REMANDED WITH INSTRUCTIONS




        35
