Mills Music, Inc. v. State of Arizona and Arizona Coliseum and Exposition Center Board, a Body Politic Under and by Virtue of the State of Arizona

The State of Arizona and the Arizona Coliseum and Exposition Center Board (“Coliseum Board”) appeal from a joint judgment awarding the plaintiff, Mills Music, Inc. (“Mills”), $75,000 in damages for willful copyright infringement and $25,000 in attorney’s fees. Appellants’ sole contention on appeal is that the Eleventh Amendment precludes an award of damages and attorney’s fees against a state and one of its political agencies.

I.

FACTS

Mills brought suit in federal court on June 14, 1973 charging Arizona and the Coliseum Board with deliberate infringement of Mills’ copyrighted musical composition, “Happiness Is.” Mills alleged that the Coliseum Board, the agency of the state government charged with operating the state fair, had used its song as the theme and for the promotion of the 1971 Arizona State Fair. In addition to copyright infringement, Mills charged unfair competition.

Arizona and the Coliseum Board filed a motion to dismiss predicated upon Section 1(e) of the Copyright Act, 17 U.S.C. 1(e), which provides that a person who performs a musical composition, but does not do so publicly and for profit, is not liable. This motion was denied, and defendants filed an Answer…