Overview:

• Rick Allen sued in 2015 and alleged the state stole and illegally published his copyrighted works.

• In 2020, the U.S. Supreme Court ruled thatNorth Carolina had sovereign immunity and can’t be sued for copyright infringement.

• Allen tried again to sue, and the 4th Circuit Court of Appeals said he isn’t allowed to revive his case.

A federal appeals court ruled on Friday that Fayetteville videographer Rick Allen can’t continue to sue the state of North Carolina over allegations it illegally published his videos and photos of Blackbeard’s shipwreck.

This may end a dispute that dates back to 2013, when Allen, who operates Nautilus Productions, said he first discovered the North Carolina Department of Natural and Cultural Resources (NC DNCR) allegedly violated the copyrights of his works from the wreck and told it to stop. He sued for copyright infringement in 2015, the U.S. Supreme Court ruled against him in 2020, and he tried again to sue shortly after.

“We do not believe the decision is appropriate. We are reviewing our options for next steps that will best protect not only our own rights, but those of all copyright owners,” Allen told CityView via text message Monday.

“It harms the interests of copyright holders nationwide,” he said.

The communications office for North Carolina Attorney General Jeff Jackson did not reply on Monday to a query for comment on the ruling. The NC DNCR referred questions to Jackson’s office.

Two men wearing suits stand before microphones outside the U.S. Supreme Court building. One of the men, standing to the right, is missing his left hand and instead has a prosthetic gripper.
Fayetteville videographer Rick Allen, at right, and has lawyer, Derek Shaffer, speak to the news media outside the U.S. Supreme Court in Washington, on November 5, 2019. Credit: Johnny Horne

Pirate Ship Sank in 1718

Historians say the pirate known as Blackbeard, whose name was Edward Teach, ran his ship aground in 1718 off the North Carolina coast near Beaufort Inlet and Atlantic Beach. It subsequently sank, and the wreckage was lost until the Intersal marine salvage company found it in 1996.

By law, the wreck belonged to the state government.

The state gave Intersal exclusive access and commercial rights to the wreck. Intersal gave Allen exclusive rights to photograph and video the site. Allen provided some photos and videos to the state for educational purposes with restrictions on their use. He planned to earn money from his work by selling licensing rights.

Allen sued in 2015 after he alleged the state published his materials in violation of his agreement.

Allen’s lawsuit went to the Supreme Court in 2019, which unanimously ruled against him in 2020. The court ruled that North Carolina was shielded from Allen’s lawsuit by sovereign immunity—a legal concept that limits when the government can be sued. Allen dropped his suit.

Then in 2020, he tried to revive it.

Lawsuit Back To Life?

This time, Allen argued that a 2006 U.S. Supreme Court ruling in a sovereign immunity dispute against Georgia also applied to North Carolina’s sovereign immunity claim in his copyright infringement lawsuit. The Georgia case involved whether the state was immune from a lawsuit over its treatment of incarcerated people with disabilities. The high court rejected Georgia’s attempt to claim sovereign immunity.

U.S. District Judge Terrence Boyle in 2021 decided to allow Allen’s lawsuit to proceed, and in 2024 ruled that North Carolina was unprotected by sovereign immunity.

A three-judge appeals court on Friday unanimously said Boyle was wrong in 2021 let the case proceed again.

Allen’s lawsuit ended when he dropped it in 2020, Judge Robert Bruce King wrote in Friday’s ruling, and Boyle in 2021 abused his discretion when he allowed Allen to reopen it. Among the factors: If Allen wanted to cite the Georgia case, he should have done years before, when he initially sued, King said.

And with Boyle’s 2021 decision vacated, his 2024 sovereign immunity ruling is vacated as moot, King said.

The ruling sent the case back to Boyle with directions to dismiss it with prejudice, which means Allen can’t file it again.

Allen can ask the appeals court to review the case again, this time with a 15-judge panel instead of just three judges.

Senior reporter Paul Woolverton can be reached at pwoolverton@cityviewnc.com.

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Paul Woolverton is CityView's senior reporter, covering courts, local politics, and Cumberland County affairs. He joined CityView from The Fayetteville Observer, where he worked for more than 30 years.