North Carolina Faces New Federal Claims in Blackbeard Copyright Case


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The infamous pirate Blackbeard was once the scourge of the Atlantic but over 300 years later a different kind of pirate sails North Carolina’s waters. And a case heard at the United States Supreme Court has returned to Raleigh, N.C. On February 8th, 2023, filmmaker Frederick Allen of Nautilus Productions, filed an amended complaint in Allen v. Cooper against the state of North Carolina and the North Carolina Department of Natural and Cultural Resources (NCDNCR) over the misuse of Allen’s copyrighted footage of Blackbeard’s shipwreck, the Queen Anne’s Revenge. According to the complaint filed in U.S. District Court for the Eastern District of North Carolina, North Carolina pirated Allen’s footage of Blackbeard’s flagship, and then passed “Blackbeard’s Law” (N.C. §121-25(b)) in 2015 to justify that misuse.

North Carolina has argued that Allen and other creators are barred from suing states and state entities for copyright infringement, even though states can sue their own citizens for infringing use of copyrighted works created by those very same states, under the guise of “Sovereign Immunity.” Allen’s lawsuit alleges the above inequity in federal copyright law and the passage of North Carolina’s “Blackbeard’s Law,” illegally converted Nautilus’ footage of Blackbeard’s flagship, the Queen Anne’s Revenge, into the public domain. The lawsuit further alleges that North Carolina violated Allen’s 5th and 14th Amendment Constitutional rights through the passage of Blackbeard’s Law, and that Blackbeard’s Law represents a Bill of Attainder, or targeted punishment of an individual by the Legislature, which is specifically prohibited in the U.S. Constitution. Allen is also seeking an injunction to enjoin North Carolina from engaging in further copyright infringements or takings.

Allen stated, “The Copyright Clause and the 5th and 14th Amendments to the Constitution are meant to protect citizens from unjust and illegal takings of their property without due process or compensation. This lawsuit will benefit all creators, who drive the American economy, and help protect them from intellectual property theft by states. Nowhere in the federal copyright statutes are states exempted from copyright law or immune from lawsuits - yet North Carolina argues just that.”

For nearly two decades, Nautilus Productions was the official video crew for the Blackbeard’s Queen Anne’s Revenge Shipwreck Project. Nautilus Productions documented archaeological activities and the recovery of artifacts from Blackbeard’s infamous shipwreck for the benefit of, and at zero cost to, the taxpayers of North Carolina. Nautilus’ footage of Blackbeard’s shipwreck has aired worldwide on the BBC, the History Channel, the Discovery Channel, National Geographic and many more.

The shipwreck was discovered in 1996 by Intersal, Inc. which has filed a separate breach of contract lawsuit in North Carolina state court. The state of North Carolina and the North Carolina Department of Natural and Cultural Resources (NCDNCR) are defendants in that lawsuit. That case awaits a trial date in North Carolina’s Business Court.

The filing in Allen v. Cooper can be accessed here –