State battles Blackbeard suit at federal Appeals Court

Lawyers representing the North Carolina Department of Natural and Cultural Resources are asking federal appellate judges to toss out a long-running copyright lawsuit over images linked to the pirate Blackbeard’s flagship.

Frederick Allen and Nautilus Productions have been battling the state in federal court since 2015 over the use of images Allen took as the state worked to recover material from the Queen Anne’s Revenge. The US Supreme Court issued a unanimous ruling in 2020 favoring the state.

But the case continued. US District Judge Terrence Boyle allowed Allen to amend his complaint against DNCR and state officials.

“This appeal marks the latest chapter in a decade-long copyright dispute over photographs and video footage that Allen took documenting the Department’s efforts to recover Blackbeard’s sunken pirate ship, the Queen Anne’s Revenge,” lawyers from the NC Department of Justice wrote Wednesday in a new filing at the 4th US Circuit Court of Appeals. “Seven years ago, this Court reversed the district court below, which had allowed Allen’s federal copyright claims to proceed against the Department despite its sovereign immunity. This Court remanded with instructions to dismiss. The Supreme Court affirmed this Court’s judgment.”

“The Supreme Court’s decision should have been the end of this case,” NC government lawyers wrote. “Instead, the district court reopened the litigation and allowed Allen to amend his complaint to assert a new legal theory that he had never before advanced: that the Department’s alleged copyright infringement also violated the Fourteenth Amendment’s Due Process Clause and thus abrogated state sovereign immunity under United States v. Georgia,” a 2006 precedent.

“In reaching this conclusion, the district court erred twice over,” state lawyers argued. “It first erred by allowing Allen to amend his complaint years after this Court ordered his claims dismissed — on a theory that Allen could have raised in 2015, when he originally filed this lawsuit. In so doing, the district court far exceeded Rule 60(b)’s and Rule 15(a)’s limitations on reopening final judgments and granting leave to amend.”

“The district court was also wrong on the merits. Allen did not — and cannot — plausibly allege an actual violation of the Fourteenth Amendment,” the court filing continued. “A copyright violation that also violates due process requires both reckless infringement and lack of an adequate remedy.”

“Allen cannot satisfy either element here. This Court’s prior decision in this case already rejected Allen’s recklessness theory, foreclosing Allen’s attempt to relitigate that issue through an amended pleading. And North Carolina state courts were open to offer Allen an adequate remedy for any infringement,” state lawyers wrote.

State lawyers also rejected Allen’s attempt to make a “Georgia claim” based on the precedent case.

“Below, the district court held that Allen plausibly alleged that the Department violated the Copyright Act by directly infringing his copyrighted works,” the court filing explained. “But to find a due-process violation, the district court did not look to this alleged copyright infringement. Rather, the court held that the Department violated due process in a different way: by failing to afford Allen a pre-deprivation hearing before it infringed.”

“That mismatch between the alleged statutory violation and the alleged constitutional violation forecloses Allen’s Georgia claim,” state lawyers argued. “In reaching a contrary conclusion, the district court conceded that its decision split with the other courts to have considered this issue, which have held that the state copyright infringement itself must violate the Fourteenth Amendment.”

State government lawyers urge the 4th Circuit to send the case back to Boyle with instructions to “dismiss and close the case.”