IP Law Daily, COPYRIGHT NEWS—In public records case, Supreme Court is urged to act now to avoid a ‘jurisdictional black hole’, (Jun 3, 2026)

By Matthew Hersh, J.D.

The question is whether state courts or federal courts have the right to decide whether fair use principles apply to state public records requests.

The Supreme Court should decide whether state courts have jurisdiction over fair use questions when they arise in the context of public records requests, a new petition for certiorari asserts. The petition, which urges the Court to resolve what one commentator calls “among the knottiest procedural problems in copyright jurisprudence,” comes after a federal appellate court refused to decide whether a parent who wanted a copy of a state agency document could assert the fair use doctrine in order to advance her demand that the agency make a reproduction that would otherwise infringe upon rights held under federal copyright law (Stovall v. Jefferson County Board of Education, No. 25-1302 (U.S. May 14, 2026)).

The lawsuit was brought by Miranda Stovall, a Kentucky resident, mother, and parents’ rights advocate. When she learned that Jefferson County Public Schools planned to administer a mental-health survey to her child’s class, she requested a copy of the survey under the Kentucky Open Records Act so that she could distribute it to other parents. The county offered to let the parent inspect the survey in person but refused to let her make a copy because the material was ostensibly the copyrighted property of the survey’s publisher. As such, the county asserted, distributing the survey would violate “federal law,” namely in this case the Copyright Act.

The parent, seeking to obtain a copy of the survey to distribute, turned to the federal courts. Her lawsuit, which named both the county and the survey publisher as defendants, sought a declaratory judgment to the effect that distributing the survey to her would constitute a fair use under the Copyright Act. The district court dismissed the case for lack of jurisdiction, leading to an appeal to the Sixth Circuit—and eventually to this petition.

Decision of the Sixth Circuit. The court of appeals affirmed the judgment of the district court. Copyright claims, as with other claims, the court noted, can be heard in federal court only if they “arise under” copyright law. Under longstanding precedent, the court noted, that standard extends to three categories of cases. The first category, the court noted, consisted of claims that rely on a cause of action created by the Copyright Act. The second, the court noted, consisted of claims with state-law origins that “necessarily raise a disputed and substantial question of copyright law and that a federal court may properly entertain.” The third category, the court noted, consisted of state-law claims asserting rights “that are equivalent to any of the exclusive rights within the general scope of copyright” and therefore preempted by the Copyright Act.

The lawsuit at hand fit into none of these categories, the court held. As to whether the cause of action relied on a cause of action created under the Copyright Act, the court noted, the answer to that was clearly no. Indeed, the court noted, the parent acknowledged in her complaint that her alleged entitlement to copies of the survey came from the Kentucky open records law, not federal law. “A state-law cause of action does not by itself establish a federal question,” the court noted.

Nor did the open records law “necessarily raise” a copyright law question, the court found. The Kentucky Open Records Act established a set of conditions, without reference to copyright law, the court noted, entitling applicants to inspect and make copies of public records. Federal copyright law came into the case, the court noted, only as a type of “federal law” that Jefferson County invoked as a defense to complying with the open records request. Put similarly, the court noted, copyright law was not “an essential element” of the open records claim but, instead, could arise only as a defense to that claim. That was fatal to the action, the court found. “A claimant may not circumvent ‘arising under’ jurisdiction by filing a declaratory-judgment action merely to anticipate a defense that otherwise could be presented in a state action,” the court observed.

Finally, the court noted, the open-records claim was not “a doppelganger of a federal copyright claim.” The parent asserted only that the County violated her state-law entitlement to inspect and copy eligible public records, the court noted. As such, the court noted, copyright law did not provide “the exclusive cause of action for the claim asserted” by the parent, nor did it “set forth procedures and remedies” governing that cause of action. “Because Stovall’s public-records claim does not resemble an infringement claim,” the court reasoned, “it does not belong in federal court.”

The parent’s arguments to the contrary failed to persuade the court. The parent argued that a state-law claim like hers arose under federal law because it turned on a “substantial question” of federal law. “But whether a state-law claim raises a substantial question of federal law is a necessary but not a sufficient basis for federal jurisdiction,” the court noted. “Because copyright law serves only as a defense to a Kentucky Open Records Act claim,” the court noted, the complaint lacked a “necessary” question of federal law. “The most one can say is that a question of federal law is lurking in the background,” the court found. “It is foreground questions of federal law, not background questions, that create federal-question jurisdiction.”

Nor did the fact that the federal courts have exclusive jurisdiction over copyright claims prevent the parent from fully litigating her claim in a state court. The parent argued that if she brought her claim in a state court under the open records act, the state court would be precluded from adjudicating the county’s defense of fair use. But where, as here, a claim does not arise under federal copyright law, the court noted, “state courts may exercise jurisdiction, even if that claim implicates a federal fair-use defense.” Indeed, the court noted, “at least one state court has recognized its jurisdiction to interpret federal fair-use doctrine in the context of a state open-records request.”

Finally, the court noted, the parent’s concern about being the subject of an eventual copyright lawsuit herself did not form a basis for federal court jurisdiction. The parent raised the possibility that the survey publisher might bring a copyright infringement action against her if her open records request were granted. “But that concern is just that: a possibility,” the court noted. No doubt, the court noted, if the publisher filed such an infringement action, it would arise under federal law. But this possibility was not enough, at least in this context, to support jurisdiction. The parent’s complaint, the court noted, did not identify a previous infringement action against her from the publisher. Indeed, the court noted, the complaint “does not even suggest that [the publisher] knew of Stovall’s existence before she filed this lawsuit.” The parent’s mere “speculative fear” of a lawsuit, as a result, was not enough to generate federal jurisdiction.

Petition for certiorari. The petition argued that the Sixth Circuit got it wrong: “only federal courts,” the petition asserts, “may resolve questions like Mrs. Stovall’s.” Moreover, the petition asserts, the circuit court’s decision created a direct split with “a state court of last resort,” namely that of Connecticut. There, the petition notes, the state Supreme Court held definitively that neither a state public records commission nor a state court has jurisdiction to determine “whether a particular use of copyrighted materials infringes on the copyright holder’s rights under federal copyright law or, instead, constitutes a fair use of the materials.” This direct conflict, the petition asserts, “requires this Court’s intervention to resolve.”

But the central focus of the petition is not the merits of the circuit court’s decision or the direct split with the Connecticut court but rather the “confusion” it has contributed to among courts nationwide. As the petition notes, quoting from the Nimmer treatise, “the division between jurisdiction in the federal courts, on the one hand, and jurisdiction in the courts of the various states, on the other, poses among the knottiest procedural problems in copyright jurisprudence.” In fact, the petition notes, state courts have taken three different approaches to this question. Courts in Missouri, Pennsylvania, and Illinois, like the Connecticut Supreme Court, have found that they do not have jurisdiction to decide fair use questions. Courts in Wisconsin, Minnesota, Utah, California, and Ohio, by contrast, have assumed their jurisdiction (without questioning it) and decided fair use questions on the merits. Courts from five other states—Washington, New York, Georgia, Tennessee, and Florida—have “creatively avoided the jurisdictional question,” the petition noted, in various ways.

The consequence of this confusion, the petition asserts, in not merely a split but “an intractable problem for parents who just want to know what learning materials public schools are giving to their children.” Indeed, without clarity about which court they must file suit in, the petition notes, parents are “forced to play a jurisdictional shell game” as cases can bounce between federal and state courts and thus “tie up parents in expensive jurisdictional litigation for years.” Worse still, the petition asserts, “parents can be put into a jurisdictional black hole with neither the state nor the federal court accepting jurisdiction.” Or a state court could rule on the copyright question “only to have a federal court later rule that the state court lacked jurisdiction to do so,” the petition observes, thus “voiding the state court’s ruling and making it non-preclusive.” For those reasons, the petition asserts, the Court should grant certiorari “to provide clarity to state and lower federal courts about the proper forum for this question.”

The question presented is: “Whether federal courts must, or state courts may, decide whether it is a fair use, under the Copyright Act, to request and obtain a copyrighted document under state open records law.”

The Case is No. 25-1302.

Judge: NA.

Attorneys: James Vincent Francis Dickey (Southeastern Legal Foundation) for Miranda Stovall.

Companies: Jefferson County Board of Education

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