State Attempts to Sink Blackbeard Infringement Case by “Deep Sixing” the Law They Passed to Claim the Copyrights

Stephen Carlisle August 10, 2023

“This lawsuit is about Piracy, Greed and Revenge.”

So opens Frederick (Rick) Allen’s amended complaint against the State of North Carolina for effectively injecting his copyrighted video footage into the public domain. Yet, now, North Carolina attempts to end the case by repealing “Blackbeard’s Law,” the statute at the heart of the controversy.

I have written about this case before. ¹ The basic facts are:

The case revolves around video footage of the efforts to salvage the wreck of Blackbeard’s famous pirate ship, Queen Anne’s Revenge. The QAR sank off the coast of North Carolina in 1718, with Blackbeard and most of his crew escaping. The QAR lay on the sea floor for over 300 years before being discovered in 1996 by the salvage company Intersal. The State of North Carolina then entered into a salvage agreement with Intersal in 1998.

In turn, Intersal contracts with underwater videographer Frederick Allen (the Plaintiff here) to take exclusive video of the salvage process. He spends 17 years documenting the salvage process. Allen registered 13 separate copyrights to his work.

In 2013, the State started to make use of the video material online. Allen objected and commenced sending DCMA takedown notices to the State. Allen, Intersal and the North Carolina Department of Natural and Cultural Resources reached a settlement agreement, wherein the State paid Allen $15,000, and the parties’ respective rights to the footage was established.

This should have settled things, but of course did not. This is why the case ends up with a SCOTUS opinion in 2020.

The State of North Carolina resumed online use of the video. Allen objected and commenced sending DCMA takedown notices to the State.

The State responds by passing the following law in August of 2015:

‘All photographs, video  recordings,  or  other  documentary  materials  of  a  derelict vessel  or  shipwreck  or  its  contents,  relics,  artifacts,  or  historic  materials  in  the  custody  of  any agency  of  North  Carolina  government  or  its  subdivisions  shall  be  a  public  record  pursuant  to Chapter  132  of  the  General  Statutes. There shall be no limitation on the use of or no requirement to alter any such photograph, video recordings, or other documentary material, and any such provision in any agreement, permit, or license shall be void and unenforceable as a matter of public policy.’

And then the State of North Carolina resumed online use of the video.

“In other words, the State of North Carolina is not only a pirate, but has attempted to legislatively put all of Allen’s copyrights in the public domain.” ²

The State of North Carolina defended the lawsuit on the grounds of sovereign immunity. The case wound up in front of the Supreme Court of the United States. There, the Court ruled that the State did have sovereign immunity, but only because the Copyright Remedy Clarification Act passed by Congress to allow such copyright lawsuits against States was improperly passed. ³

Yet, there was some light beamed at the Plaintiff’s case. Justice Kagan wrote:

“All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. (citation omitted). And the Fourteenth Amendment bars the States from ‘depriv[ing]’ a person of property ‘without due process of law.’ But even if sometimes, by no means always. Under our precedent, a merely negligent act does not ‘deprive’ a person of property. (citation omitted) So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause.” ⁴

Allen returned to the District Court for permission to amend his original complaint to allege that the State had “deprived him of his property without due process of law.”

The Judge agreed:

“In his ruling, US District Court Judge Terrence W. Boyle wrote that ‘the Takings Clause would be stripped of much of its meaning if the government could simply bar suits for just compensation. State governments could take property whenever they wanted without providing any compensation unless they chose to waive their immunity.’” ⁵

On February 8, 2023, Allen filed his amended complaint. Among the counts added were:

• Takings under the 5^th and 14^th Amendment by retaining and refusing to return his “physical media containing copies of his work.”
• Takings under the 5^th and 14^th Amendment due to passage of “Blackbeard’s Law” which “destroys all economically beneficial and productive use of Allen’s copyrights.”
• A Declaration that Blackbeard’s Law is an illegal “Bill of Attainder” in violation of the U.S. Constitution and a court order revoking it.
• A Declaration that Blackbeard’s Law is an illegal Ex Post Facto under the U.S. Constitution.
• A Declaration that Blackbeard’s Law “impairs the obligations of an existing contract” in violation of the U.S. Constitution.
• A Declaration that the Defendants have “under color of law, deprived Plaintiff of rights guaranteed by the United States Constitution.” ⁶

The State of North Carolina responded by filing a Motion to Dismiss, a separate Motion to Strike, along with a 37 page Memorandum of Law. This seems in furtherance of the State’s strategy of attempting to “spend your opponent into the ground.” The State funds the litigation by tapping the taxpayers of North Carolina to pay the two attorneys along with the Attorney General and the North Carolina Department of Justice to fight Allen’s claims, while Allen pays his attorney’s fees out of his own pocket. ⁷

To which Allen’s brief wryly observes:

“…North Carolina has been aggressive in its motions practice, giving Allen an exhaustive eight year long education in advanced civil procedure. At each point, North Carolina has deployed every conceivable procedural obstacle, irrespective of merit.” ⁸

But they weren’t done yet.

After the State had filed its motions, it undertook to repeal Blackbeard’s Law. It did so by inserting the language into an otherwise unrelated bill. How unrelated? The first two chapters adjust the number of Trustees who can sit on the Board of the North Carolina Museum of Art and clarifying surplus property process for museums and aquariums. The repeal language was inserted at page 11 of a 24 page bill. It was passed out of the legislature and signed by the Governor on June 30, 2023. You can read the Legislative History at the link in endnote 9. ⁹

They didn’t tell Allen, who said he was completely surprised by the move. ¹⁰ And the State certainly did not tell the Court until a “Reply to Plaintiff’s Response…” was filed July 28, 2023. Then, they let this bomb drop:

“Recently the North Carolina General Assembly…removed section 121-25(b) challenged by the Plaintiffs…. Therefore all Plaintiff’s claims for Injunctive or Declaratory Relief are now moot.” ¹¹

Many of the prayers for relief in the SAC include the Court to issue an injunction against various State actors from relying on Blackbeard’s Law in relation to its dealing with Allen’s property. Yet, to the extent that the State relies upon the existence of Blackbeard’s law to justify their previous actions, the repeal would not seem to affect those claims at all.

Allen is undeterred.

“Finally, on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing Blackbeard’s Law. The repeal came after eight years of litigation and is apparently triggered by the State’s realization that it had no legitimate defense to at least one of the federal court claims: that Blackbeard’s Law was a constitutionally prohibited ‘Bill of Attainder’ — a bill that targets and harms an individual, without any due process at all. Since various State legislators had admitted to the motivation, it would have been hard to show otherwise.” ¹²

“This isn’t the end of the road, by a long shot, but it’s a good start. The repeal of the law does nothing to negate the past and ongoing copyright violations, damages for those violations, or the eight years in which the state and its affiliates hid behind Blackbeard’s Law to justify their scandalous behavior.” ¹³

And:

“So yeah, we’re definitely going to fight. You know, if I steal your car and ride around in it for eight years, in fact, I still stole your car. That’s the problem.” ¹⁴

Allen states his claim for damages will exceed “7 figures.” ¹⁵