Last week, the 9th Circuit found the University
of Arizona immune to counterclaims filed by trademark defendants accused of wrongfully selling prints called "Ansel Adams Lost Negatives." Ansel Adams Publ Rights Trust v. PRS Media
Partners, LLC, 2012 U.S. App. LEXIS 25896 (9th Cir. Cal. Dec. 19, 2012) [enhanced version available to lexis.com subscribers].
The University, as a non-jural entity under Arizona law, could not be sued in its own name. Instead, the Arizona Board of
Regents, as the governing body for Arizona's public universities, was the
proper defendant. Pursuant to Rutledge
v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981) [enhanced version available to lexis.com subscribers] and Ronwin v. Shapiro, 657 F.2d 1071 (9th
Cir. 1981) [enhanced version available to lexis.com subscribers], the Board was entitled to immunity.
Plaintiffs sued after defendants created prints using glass
negatives allegedly created by Ansel Adams. The University was included in the suit as administrator
of the Center for Creative Photography, which houses the Ansel Adams archives.
Defendants asserted several counterclaims against the
University, including unfair competition, civil conspiracy to interfere with
prospective economic advantage, and aiding and abetting tortious interference
with prospective economic advantage. In response, the University claimed sovereign immunity
under the Eleventh Amendment.
Pointing to the Center's external revenue sources, defendants argued that any Eleventh Amendment immunity was negated because
a judgment against the University would be paid by the Center and not out of
the State of Arizona's treasury. However, defendants failed to name the Center
as a defendant. Without addressing the issue, the 9th Circuit held
that a judgment against the University would amount to a legal liability
incurred by the State, which the Supreme Court had held to be the most
important factor in whether an agency is entitled to sovereign immunity.
Moreover, defendants conceded in their counterclaim that
the Center was "a division of the University of Arizona Libraries" and
"a public institution [that] exists to serve the public interest, not any
single vested interest." Thus, a suit against the
Center amounted to a suit against the Board, which was immune.
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