Fourth Circuit Partially Reverses District Court in Latest Chapter of Decade-Long Blackbeard Copyright Case

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

On Friday, January 23, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in Allen v. Stein that likely ends a decade-long copyright battle over documentary footage of a state-sponsored salvage project exhuming a shipwreck associated with the famed pirate Blackbeard. Reversing and vacating rulings by the Eastern District of North Carolina, the Fourth Circuit found that an erroneous legal standard was used in allowing Allen to pursue a new theory for his copyright claims, remanding the case to the district court with directions to dismiss Allen’s complaint with prejudice.

Videographer Frederick Allen and his company Nautilus Productions recorded footage of a private company’s project to salvage Blackbeard’s flagship Queen Anne’s Revenge from the North Carolina coastline. In 2013, North Carolina state employees uploaded Allen’s footage to state-sponsored social media channels, leading Allen to file suit in December 2015 against several state officials and the state’s cultural resources department. That case ultimately wound up at the U.S. Supreme Court, which ruled in March 2020 that the Copyright Remedy Clarification Act (CRCA) did not properly abrogate state sovereign immunity with respect to copyright infringement claims.

District Court Allows Case-by-Case Abrogation Theory Under Georgia to Proceed

On remand in Eastern North Carolina district court, Allen filed a motion for reconsideration under Federal Rule of Civil Procedure (FRCP) 60(b) to revive an unconstitutional takings claim under 42 U.S.C. § 1983 that was eliminated in 2017 on a motion to dismiss. Allen’s amended complaint pursued his Section 1983 claim under a new theory from the Supreme Court’s 2006 ruling in United States v. Georgia, which held that Congress may validly abrogate state sovereign immunity for claims stemming from conduct amounting to actual violations of the Fourteenth Amendment’s substantive guarantees. The district court ended up granting Allen’s motion, construing it as a motion under FRCP 54(b) motion to reconsider as the district court only dismissed some claims in 2017 and did not render a final judgment as required by FRCP 60(b).

In granting Allen’s motion to reconsider in 2021, the district court highlighted that its previous ruling on the CRCA, which considered the law a valid prophylactic abrogation of immunity, had not addressed any potential case-by-case abrogation under Georgia, an issue unaddressed by either the Fourth Circuit or the Supreme Court. The North Carolina defendants moved to dismiss Allen’s amended complaint, and in 2024 the district court denied this motion as to Allen’s Georgia theory, allowing it to proceed toward discovery.

Assessing the “jurisdictional morass presented here,” the Fourth Circuit found that it had pendant appellate jurisdiction over the 2021 grant of Allen’s motion to reconsider. A judicially-created discretionary exception valid in the Fourth Circuit, pendant appellate jurisdiction allows the appellate court to review issues not subject to immediate appeal but are so interconnected with immediately appealable issues as to warrant concurrent review. Because the 2021 decision was “the sole and only seed” of the appealable 2024 ruling, “it would be unworkable for us to rule that we possess jurisdiction with respect to the 2024 ruling… but that we lack jurisdiction concerning the 2021 decision that made the 2024 ruling possible,” the Fourth Circuit held.

Final Judgment, No Exceptional Circumstances Doom Allen’s Motion to Reconsider

The Fourth Circuit found legal error in the district court’s decision to construe Allen’s FRCP 60(b) motion to reconsider under FRCP 54(b), which allows orders to be revised before final judgment is entered. By August 2020, all claims in Allen’s lawsuit had been extinguished either by application of sovereign immunity or through voluntary dismissal. Therefore, at the time of Allen’s motion to reconsider, there existed a final judgment, making FRCP 60(b) the proper avenue for analyzing Allen’s motion to reconsider.

Allen’s motion to reconsider was specifically made under FRCP 60(b)(6), a catch-all provision for “any other reason that justifies relief.” On appeal, the Fourth Circuit found no extraordinary circumstances sufficient to reopen litigation in 2021 on a legal theory based on Supreme Court precedent that was 14 years old when Allen’s FRCP 60(b)(6) motion was filed. Allen never raised arguments under Georgia before his 2021 motion to reconsider and never presented any explanation as to how failure to pursue an established legal theory could meet the exceptional circumstances requirement.

The Fourth Circuit found that the district court “perplexingly collapsed” Allen’s burdens under FRCP 60(b)(6) and FRCP 15(a)(2), which directs courts to freely give leave to amend complaints when justice requires. Under Fourth Circuit case law, FRCP 60(b) grounds must be satisfied before considering a motion to amend, whereas the district court here allowed Allen to reopen litigation and demonstrate merits later. “[I]t is difficult to imagine how the restart of this litigation is anything other than a ‘do-over,’” the Fourth Circuit wrote, an abuse of the district court’s discretion that was both unfair to the defendants and inefficient for the judicial system.

Finding it was “constrained to reverse the 2021 decision,” the Fourth Circuit subsequently vacated the district court’s 2024 ruling as moot. Given the disposition of the 2021 decision, any resolution of the sovereign immunity issues present in the 2024 ruling would result in an advisory opinion being rendered on moot constitutional issues. The appellate court concluded by vacating all of the district court’s rulings subsequent to the 2021 decision, and remanded with directions to close this litigation by dismissing all claims against the North Carolina defendants with prejudice.