On March 9th, in Romero v. California Department of Transportation, the U.S. District Court for the Central District of California dismissed plaintiff’s complaint filed against the Defendant California Department of Transportation (“Caltrans”) on the basis that defendant was immune under the Eleventh Amendment to the U.S. Constitution. 

Romero is an artist who had painted a mural in Los Angeles underpass.  The mural was desecrated by graffiti so Caltrans, which is responsible for maintaining and repairing underpasses, walls and barriers along the highway, painted over the mural with grey paint.  Romero sued, claiming that Caltrans violated the Visual Rights Act of 1990 (“VARA”) (codified in section 106A of the Copyright Act by not notifying him before painting over the mural. 

Romero argued that “Caltrans had waived its sovereign immunity by accepting federal funds to build and maintain California’s highways.”  The court disagreed, holding that “one way for a state to waive its immunity is to accept federal funds … [h]owever, mere receipt of federal funds cannot establish that a State has consented to suit in federal court.”  The court went on to say that Romero “failed to point the Court to any provision in the relevant funding statute that manifests a clear intent to condition the State’s participation on its consent to waive its Eleventh Amendment immunity.” 

The court then turned its attention to the Copyright Remedies Clarification Act (CRCA), finding that --consistent with the Supreme Court decision in Florida Prepaid v. College Savings Bank, and the Fifth Circuit decision in Chavez v. Arte Publico  -- “although Congress expressed its unequivocal intent to abrogate the Eleventh Amendment enacting the CRCA, Congress did not have authority to exercise those powers under section 5 of the Fourteenth Amendment."