A federal Appeals Court panel questioned Wednesday whether a 10-year-old copyright lawsuit over images of the pirate Blackbeard’s flagship could move forward. The US Supreme Court ruled in 2020 that North Carolina state government had immunity from the suit.
Frederick Allen and Nautilus Productions have been battling the state in federal court since 2015 over the use of images Allen took during recovery work involving the Queen Anne’s Revenge.
US District Judge Terrence Boyle allowed the plaintiffs to reopen the case in 2021, after the Supreme Court ruling favoring the state. A 2024 order from Boyle’s court prompted state lawyers to take the case back to the 4th US Circuit Court of Appeals.
“This case should have ended five years ago,” North Carolina Solicitor General Nicholas Brod argued Wednesday before the 4th US Circuit in Richmond. “Five years ago, the United States Supreme Court unanimously affirmed this court’s decision holding that North Carolina has sovereign immunity from Allen’s copyright claims.”
The trial court allowed Allen to file an amended complaint based on a 2006 court precedent that he could have cited when he originally filed suit against the state in 2015, Brod argued. “The District Court’s decision to reopen the case and allow Allen to file an amended pleading was error.”
Judge Paul Niemeyer, who wrote a 2018 4th Circuit decision favoring the state over Allen, raised concerns Wednesday about the case moving forward after the nation’s highest court had its say.
“Basically, your argument comes down to the law generally doesn’t like a second bite,’ Niemeyer said to Brod.
“Exactly,” Brod responded.
“This is a second bite because there are no new developments,” Niemeyer said.
“That’s right — that’s right,” Brod said. “It’s a do-over.”
“The court gave Mr. Allen a do-over to assert a claim that he could have raised 10 years ago,” Brod added several minutes later. “We’re 12 years now from the settlement agreement in 2013 that gave rise to a lot of this litigation. Witnesses move. Memories fade. We’ve defended this case all the way up to the United States Supreme Court. There’s clear prejudice to us from continuing a case that should have ended.”
Adam Adler, Allen’s lawyer, challenged the state’s arguments.
“This isn’t a do-over,” he said. “Plus, there were new facts that took place between the Supreme Court decision and the prior appeal that motivated and justified filing a second amended complaint.”
Niemeyer pushed back.
“Now you’re basically coming in and challenging the ruling that you can’t sue the state,” Niemeyer said to Adler. “And you say, ‘Oh, I’ve got a new theory. The new theory’s under Georgia [a 2006 precedent].’”
“There’s something wrong with that,” Niemeyer continued. “First, you could have raised it earlier. But second, it flies in the face of the fact that both our court and the Supreme Court held the state immune from copyright. You’re now trying to find a theory to get around both courts.”
Judge Pamela Harris also questioned Allen’s attempt to revisit the case based on the Georgia precedent. “You’re not supposed to be able to go theory by theory,” Harris said. “That’s not the way the federal rules are supposed to work.”
Adler defended the trial judge’s decision to allow for an amended complaint against the state.
“The District Court here, who has broad discretion to allow those kinds of amendments, decided that it was proper and allowed — in view of the exchanges at the Supreme Court, the new facts and the new infringements that had come into play, and the normal jurisprudence … favoring resolution and disposition on the merits,” Adler said.
The plaintiffs also questioned the 4th Circuit’s jurisdiction to address the state’s appeal at this stage in the case.
“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 in a March 26 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.”
Niemeyer, Harris, and Judge Robert Bruce King face no deadline to issue a decision. King joined Niemeyer’s 2018 decision when the case made its first appearance at the 4th Circuit.
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