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ITSI TV PRODUCTIONS v. AGRICULTURAL ASSOCIATIONS

Nos. 92-15541, 92-15860.

3 F.3d 1289 (1993)

ITSI TV PRODUCTIONS, INC., Plaintiff-Appellee, v. AGRICULTURAL ASSOCIATIONS, for the 2nd (also referred to as San Joaquin Co Fair), 7th (also) referred to as Monterey Co Fair), 9th (also referred to as Redwood Acres Fair), 15th (also referred to as Great Kern Co Fair), 19th (also referred to as Santa Barbara National Horse and Flower Show), 21st (also referred to as Fresno County Fair), 22nd (also referred to as Del Mar Fair), 27th (also referred to as Shasta District Fair), 31st (also referred to as Ventura County Fair), 37th (also referred to as Santa Barbara County Fair), and 50th Districts (also referred to as Antelope Valley Fair — all named in plaintiff's Second Amended Complaint), Defendant-Appellants, and California Authority Racing Fairs, et al., Defendants. ITSI TV PRODUCTIONS, INC., Plaintiff-Appellant, v. CALIFORNIA EXPOSITION AND STATE FAIR, Defendant-Appellee, and California Authority Racing Fairs, et al., Defendants.

United States Court of Appeals, Ninth Circuit.

Decided August 31, 1993.

Attorney(s) appearing for the Case

Mark E. King, David B. Kahn, Ltd., Chicago, IL, and David W. Post, McDonough, Holland & Allen, Sacramento, CA, for plaintiff-appellee-cross-appellant.

Harold L. Eisenberg, Deputy Atty. Gen., Sacramento, CA, for defendants-appellants-cross-appellees.

Before: WALLACE, Chief Judge; NELSON and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide a question of apparent first impression: who bears the burden of persuasion when a putative state entity claims immunity from suit in federal court under the Eleventh Amendment?

I

ITSI T.V. Productions, Inc. ("ITSI") sued California State Fair and Exposition ("Cal Expo") and various District Agricultural Associations ("the DAAs") for copyright infringement. At issue were broadcasts of horse races created...

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