SCOTUS Ends Decade Long Copyright Case Against State of North Carolina

The U.S. Supreme Court on Monday denied certiorari in Frederick L. Allen, et al. v. Joshua Stein, Governor of North Carolina, a decade-plus long case that led to a Supreme Court decision as well as the introduction and subsequent repeal of a law to shield North Carolina from copyright liability.

In January 2026, the U.S. Court of Appeals for the Fourth Circuit issued the most recent ruling in the case, which related to Frederick (“Rick) Allen’s copyright battle against the State of North Carolina over documentary footage of a state-sponsored salvage project exhuming a shipwreck associated with the famed pirate, Blackbeard. 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.

Separately, the North Carolina General Assembly codified “Blackbeard’s Law” the same year, 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 eventually agreed with the State, holding that the CRCA did not abrogate the state’s sovereign immunity.

On remand, Allen filed a motion to reconsider, which was granted in 2021. 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 The case then grew even murkier as the North Carolina General Assembly repealed “Blackbeard’s Law” in August of the same year.

In granting Allen’s motion to reconsider, 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 the Supreme Court’s 2006 ruling in United States v. 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 pendent 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.

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 the litigation by dismissing all claims against the North Carolina defendants with prejudice.

Allen filed his petition for certiorari with the U.S. Supreme Court in July 2026, asking the Court to consider the following questions:

1. Whether, on an interlocutory appeal, a federal court of appeals may exercise pendent appellate jurisdiction to review issues neither inextricably intertwined with nor necessary to ensure meaningful review of the independently appealable order.
2. Whether summary reversal is warranted because the Fourth Circuit transgressed the party-presentation principle by sua sponte exercising jurisdiction on a basis appellants waived.

However, the Court denied the petition yesterday.

In a statement sent to IPWatchdog, Allen said he is “naturally disappointed,” but that “the war to remove state immunity from copyright claims already has been won” thanks to the repeal of Blackbeard’s Law and the Court’s declaration in Allen v. Cooper “that intentional copyright infringements by States cannot be shielded from suit,” said the statement.

Allen’s statement added: “While we are still deciding how to move forward, we know one thing with certainty: future infringements of photographers’ copyrights by the State of North Carolina need not, and will not, go unpunished.”

Image Source: Deposit Photos
Author: hafid007
Image ID: 453186314