(cityviewnc.com 11-11-25)
Twelve years after Fayetteville videographer Rick Allen first accused the state of North Carolina of stealing and illegally publishing his videos and pictures of Blackbeard’s wrecked pirate ship, he is still fighting in court.
Allen, whose Nautilus Productions specializes in undersea videography and photography, took the matter to the U.S. Court of Appeals in Richmond, Virginia, on October 22. A panel of three judges heard arguments in the case and will now decide whether Allen can continue his lawsuit, or if he’ll have to walk the plank.
“This case should have ended five years ago,” state Solicitor General Nick Brod told the judges, because the U.S. Supreme Court already ruled against Allen’s claim in 2020. Brod argued that a U.S. District Judge Terrence Boyle was wrong to let Allen reopen it in 2021.
Allen’s attorney Adam Adler, meanwhile, argued that the case isn’t ready for the Court of Appeals, because Boyle has not issued a final judgment on the question of whether Allen’s constitutional rights were infringed when the state violated his copyrights.
Allen’s dispute dates back to 2013, when he contends the state Department of Natural and Cultural Resources illegally copied and published work belonging to Nautilus Productions. For example, the agency posted some of his video footage on YouTube—–an unauthorized publication that violated copyright law and deprived him of potential licensing fees, Allen says.
Blackbeard’s ship, the Queen Anne’s Revenge, sank after it ran aground off the North Carolina coast in 1718 near Beaufort Inlet and Atlantic Beach. A marine salvage company called Intersal found the wreck in 1996.
The state, which by law owns shipwrecks such as Blackbeard’s, gave the salvage company exclusive rights to access the ship. Because the state lacks the resources to search for pirate ships, it makes deals with marine salvage companies in exchange for a share of the valuables found in the wrecks. But Blackbeard’s ship lacked many valuables; researchers say the pirate crew likely removed the treasure from the grounded ship before it sank. So Intersal and the state entered into an agreement that gave the salvage company commercial rights to produce replicas of the artifacts and exclusive “commercial narrative” rights for things like exhibitions and documentary films.
Intersal contracted with Allen to produce photos and videos of the wreck. He began documenting the wreck and the activities of underwater archaeologists in 1998.
A former news photographer for television stations WRAL and WTVD, Allen co-founded Nautilus Productions in 1997. His website describes a variety of work since then, including undersea documentation of sharks and manatees, shipwrecks in the Atlantic Ocean and Gulf of Mexico, and military activities. His clients have included the U.S. Army, National Geographic, the History Channel, the Discovery Channel (including its Shark Week programming), The Travel Channel, 60 Minutes, and the Environmental Projection Agency.
Allen’s lawsuit lists Blackbeard imagery that he says the state illegally copied and distributed:
Videos about recovering a cannon
Video of an anchor being raised
Approximately 20 other videos made in 2008 and 2012
“There are still ongoing violations out there in the world,” Allen told CityView on Monday.
“For almost two decades, Allen risked life, limb, and a small fortune documenting the excavation,” reads his brief to the 4th Circuit Court of Appeals. “This work was treacherous—working in high currents and low visibility. It took hours of dive time to capture mere seconds or minutes of footage.”
Allen says in court papers that he gave copies of the photos and video to the state’s Cultural Resources department for non-commercial research and educational purposes, but that the agency went beyond the agreement by posting copies online without his permission.
After Allen complained, the agency agreed to stop the copyright infringement and pay him $15,000 for its unauthorized use of his images in 2013, court papers say.
Yet the copyright violations continued, Allen said. More of his videos were published online without permission or payment, and at least one of his was published in The MariTimes, a magazine published by North Carolina Maritime Museum system. (At some point in this dispute, Allen’s imagery was redacted from an archive copy of the winter-spring 2013 issue of the magazine.)
Allen says he tried to get the state to stop, to no avail.
-Does Blackbeard's Law Permit Piracy?-
In summer 2015, the North Carolina General Assembly stepped in with Blackbeard’s Law.
The law states that the government can do whatever it wants with “photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials” in its possession.
The state Department of Cultural Resources asked for the provision, state Sen. Norm Sanderson told the Associated Press in 2015. “I’m sure that it was brought forth because of the lawsuit,” he said, referencing a separate lawsuit that Intersal had pending with the state at that time over the use of photos and images from the Blackbeard shipwreck.
(The statute was never officially named “Blackbeard’s Law”—this reporter used the appellation as a nickname 10 years ago, and it stuck.)
Following the law’s passage, Allen said, the state published more of his work without permission and included some of his videos in a movie shown to visitors at one of the state’s Maritime Museums—both in violation of his copyrights.
In late 2015, Allen filed suit. The state fought the case. In the meantime, Blackbeard’s Law was partly repealed in 2016 and fully repealed in 2023.
The legal fight made its way to the United States Supreme Court in November 2019, where lawyers for the state and Allen argued before the justices. The high court ruled against Allen in 2020. Even if the state government violated Allen’s copyright, the government is protected by sovereign immunity, the justices said.
Under sovereign immunity, the government cannot be sued, according to Cornell Law School, citing common law and the 11th Amendment to the U.S. Constitution.
But there are exceptions, as courts have previously ruled.
Allen says his case falls under those exceptions, citing the 2006 U.S. Supreme Court decision in United States v. Georgia.
That ruling was about whether a paraplegic inmate in the state prison system could sue Georgia for violations of the federal Americans With Disabilities Act (ADA). He said that due to his disability, the prison staff treated him poorly, left him in his cell 23 to 24 hours a day while other inmates were allowed out, and denied services to him that were available to other inmates.
The Supreme Court ruled that the ADA specifically says states can be sued for violations, and that the inmate was entitled to due process of the law under the 14th Amendment guaranteeing that no one is deprived of “life, liberty, or property, without due process of law.”
Allen argues that his copyrights are property, with value, that were improperly taken away from him. “Allen did not have any opportunity to challenge or contest the placement of his work into the public domain,” his lawsuit says.
Lawyers representing the state of North Carolina say in their legal brief that Allen’s case has already been dismissed, and it’s too late now to try to bring in the Georgia ADA lawsuit.
“It’s a request for a do-over,” Solicitor General Brod said in the October 22 oral arguments at the Court of Appeals. “And there is no compelling reason to give Mr. Allen a do-over on these facts. Georgia has been around since 2006. It could have been asserted all the way back when he originally filed his complaint.”
Even if Allen can reopen the case, the state argues, the underlying circumstances and ruling that case don’t match Allen’s copyright claim.
-Judges Question Allen's Effort-
Questions from Court of Appeals judges Robert B. King, Paul V. Niemeyer, and Pamala A. Harris at last month’s hearing suggested they doubt Allen’s case should continue.
“Now you’re basically coming in and challenging the ruling that you can’t sue the state, and you say, ‘Oh, I’ve got a new theory,’” Neimyer said. “There’s something wrong with that.
“Number one is: First you could have raised it earlier,” he continued. “But second: It flies in the face of the fact that both our court and the Supreme Court held the state immune from copyright and you’re now trying to find a theory to get around both courts.”
King had similar thoughts.
“You’re not supposed to be able to go theory-by-theory. That’s not the way the federal rules are supposed to work” for adjudicating cases, she said.
The judges will now ruminate on the case and issue a ruling at a later date. It’s unknown how long that might take; some recent rulings have come in a month, while others have taken a year.
“I’m cautiously optimistic,” Allen said. “It’s been a long, challenging road.”
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