District Court Issues Mixed Ruling in Blackbeard Copyright Case

Model of the Queen Anne’s Revenge in the North Carolina Museum of History

On August 29, the U.S. District Court for the Eastern District of North Carolina issued an order addressing several motions in Allen v. Cooper, a case that mirrors the back-and-forth nature of an epic maritime battle—this time, between a government and an individual.

The case, covered previously here, began with an alleged copyright infringement, but has blossomed into a larger suit, alleging multiple constitutional violations.

In 1996, the wreck of the Queen Anne’s Revenge, notable for carrying the famous pirate Blackbeard, was discovered off the coast of North Carolina. After obtaining salvaging rights from the state, the salvaging company contracted with Nautilus Productions, LLC to document the recovery process. Led by Frederick Allen, Nautilus took several photographs and videos of the wreck site, copyrighting them with the U.S. Copyright Office.

Years later, Allen discovered that his pictures were being used by the North Carolina Department of Natural and Cultural Resources (DNCR) on its website without his permission. The parties ultimately settled without litigating the issue, but the DNCR kept using the photos after the agreement. Concurrently, the North Carolina General Assembly codified “Blackbeard’s Law,” which declared all photographs, video records, or documentary materials of a derelict vessel or shipwreck in the custody of North Carolina to be in the public domain.

Allen filed suit against the State, alleging, among other things, that the new law was an unconstitutional taking under both the Fifth and Fourteenth Amendments. The State responded by claiming sovereign immunity, which Allen believed was abrogated by the 1990 Copyright Remedy Clarification Act (CRCA). The Supreme Court of the United States eventually agreed with the State, holding that the CRCA did not abrogate the state’s sovereign immunity.

New jurisprudence that further developed the constitutional analysis of a taking prompted Allen to file a motion to reconsider, which was granted. His second amended complaint was filed in February 2023, containing ten counts alleging multiple violations and naming North Carolina, the DNCR, the Governor, and other officials as defendants. The case then grew even murkier as the North Carolina General Assembly repealed “Blackbeard’s Law” in August of the same year.

The State challenged the complaint by filing several Rule 12 motions, including a motion to strike the complaint and a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.

The motion to strike was first granted in part and denied in part. The State argued that Allen exceeded the scope of the court’s order granting leave to amend, and indeed, since Allen had moved to reconsider a count alleging an unconstitutional taking and related denial of due process, the court quickly struck the counts exceeding the scope.

Prophylactic Abrogation

 The State next argued for the case’s dismissal on grounds that sovereign immunity forbids a claim against the state without its consent or abrogation via Congressional action. When exercising its power to abrogate the States’ sovereign immunity, Congress can either legislate broadly to deter or remedy constitutional violations (prophylactic abrogation) or create private remedies against the states for actual Fourteenth Amendment violations (case-by-case abrogation).

Allen alleged that the court had subject matter jurisdiction because the “self-executing nature” of the Fifth Amendment abrogated state sovereign immunity, relying on the newly decided Knick v. Township of Scott. The court did not agree with Allen’s argument, however, as another binding Fourth Circuit case, Zito v. North Carolina Coastal Resources Commission, found that Knick did not alter the sovereign immunity framework.

Instead, the court said there was a more appropriate route through state court by applying the reasoning in Hutto v. South Carolina Retirement System:

 “Just as in Reich, where the Supreme Court noted that the Due Process Clause did not abrogate state sovereign immunity in federal court when state courts remain open for those claims, so too did Hutto conclude that state sovereign immunity bars Fifth Amendment takings claim against States in federal court when the State’s courts remain open to adjudicate such claims.”

Thus, Allen could not bring a claim under the theory of prophylactic abrogation unless North Carolina failed to provide a means for challenging an action as a taking. And since the North Carolina Constitution protected against takings of private property without compensation, the requirement was met, and the argument failed.

Case-By-Case Abrogation

Allen next argued that claim-by-claim abrogation under United States v. Georgia allowed his copyright infringement, takings, and procedural due process claims to proceed in federal court. The three-part test applied in Georgia consists of “(1) which aspects of the State’s alleged conduct violated [a federal statute]; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated [the federal statute] but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.

The court analyzed the first prong – since Allen alleged a copyright infringement under the Copyright Act, he only needed to demonstrate that the elements of infringement were plausibly met. This prong, said that court, was satisfied – Allen alleged that the State published images without his consent and maliciously passed a law targeting his ongoing dispute.

Allen also claimed individual constitutional violations under the due process clauses of the Fifth and Fourteenth Amendments, suggesting that the State, by placing his images into the public domain, took his property without an opportunity to be heard. To determine whether this argument was appropriate, the court applied the Penn Central test for takings. Ultimately, his argument failed, as the court concluded that Allen could not plead facts to show a substantial diminution in the value of the property. Further, the State’s infringements were not “functionally equivalent to a classic taking,” and the argument failed.

While the individual constitutional violation argument failed, Allen also asserted that the DNCR’s copyright infringements constituted a denial of due process using the same case-by-case abrogation argument. To invoke the due process clause, the infringement had to be intentional or (at least) reckless and lack an adequate remedy. The first prong was established previously, and the court ruled that “the adequacy of post-deprivation remedies must come after a determination that the demands of due process can be satisfied through post-deprivation remedies.” The fact that the State enacted Blackbeard’s Law as a way to deal with the ongoing dispute with Allen meant that it could have foreseen a deprivation of procedural due process. Thus, Allen alleged an actual constitutional violation under Georgia, and this claim was allowed to proceed.

Lastly, the court addressed the State’s claim that a violation of the Copyright Act does not align with the due process deprivation for Georgia purposes. The state relied on a footnote from a separate case, which had guided other district courts to dismiss Georgia claims that pair copyright infringement and due process claims. But this was only dicta and not binding, said the court, adding that  it refused to read Georgia so narrowly. The order explained:

“Nothing in Georgia indicates that the Supreme Court limited its decision to the statutory violation in that case or required the actual constitutional violation to be anything other than that – an actual constitutional violation….

A violation of the Copyright Act combined with an actual due process violation checks all of Georgia’ s boxes…. The CRCA, of course, went too far in abrogating state sovereign immunity for it be a valid prophylactic abrogation, but it is still available otherwise.”

Thus, both the motion to strike and the motion to dismiss were granted in part and denied in part and Allen was allowed to proceed on his claims for direct copyright infringement and procedural due process.

In a press release sent to IPWatchdog, Allen said he is grateful for the ruling: “Our number one focus continues to be protecting the rights of all artists and creators from theft of their creative works by states and state agencies. North Carolina’s claim that it can sue its citizens for copyright infringement, but face no liability for its own state-led copyright theft, is not only unethical, but unconstitutional.”

This article was updated on 9-6 to correct an error referencing the USPTO rather than the U.S. Copyright Office.