North Carolina film-maker’s copyright case against the state revived after Supreme Court denial

Rick Allen, who sued North Carolina officials over the unauthorised use of his images of a salvaged pirate ship
© Cindy Burnham, Nautilus Productions

An independent film producer and director in Fayetteville, North Carolina, whose claims of copyright infringement against that state were seemingly quashed by a 2019 ruling by the US Supreme Court on the basis of sovereign immunity, has seen his case revived. In an 18 August decision, a North Carolina district court ruled that the high court did not consider whether the actions of the state violated the film-maker’s constitutional rights under the 5th and 14th amendments, which protect property rights and due process. Starting in the 1990s, the director Rick Allen filmed the salvaging operation on an 18th century pirate ship that had run aground at Beaufort, North Carolina in 1718. Almost 20 years later, the State of North Carolina took one of Allen’s still images and videos and posted them on its tourism website and social media pages. The state justified its actions by claiming Allen’s photographs, video recordings and other documentary materials were “public record”. It also pointed to the 11th Amendment to the US Constitution, which grants states immunity from lawsuits by citizens for monetary damages, meant to allow government employees to do their jobs without an overhanging fear of litigation.

A 3,000 pound anchor from what is believed to be the wreck of the pirate Blackbeard’s flagship, the Queen Anne’s Revenge, is recovered from Beaufort Inlet, in North Carolina
Photo: Robert Willett/The News & Observer via AP

That claim of “sovereign immunity” defied a 1990 statute enacted by Congress, the Copyright Remedy Clarification Act, which says that states and officials “shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under other doctrine of sovereign immunity, from suit in Federal court by any person… for a violation of any of the exclusive rights of a copyright owner provided by [federal law].” The Supreme Court’s 2019 ruling only dealt with whether a law made by Congress could take precedence over a constitutional amendment, deciding that it could not.However, Allen pursued his claims, noting that his constitutional rights under the Takings Clause of the 5th Amendment, which forbids the state from seizing property without just compensation, had been violated and that his case could go forward. As precedence, Allen is using a 2006 Supreme Court ruling that the treatment of a disabled prisoner in a Georgia lock-up represented a violation of his constitutional rights under the 8th (“cruel and unusual punishment”) and 14th Amendments, sovereign immunity notwithstanding.“What the Supreme Court ruled in 2006 is that you can override sovereign immunity when it violates someone’s constitutional rights,” says Ernest Young, a professor of law at Duke University Law School, who had prepared a friend-of-the-court brief to the Supreme Court when it first heard the Rick Allen case. The Supreme Court did not consider the previous Georgia decision when making its more recent ruling, Young adds, noting that “a strong argument can be made that North Carolina should not be able to say: ‘We don’t have to pay Rick Allen anything because of sovereign immunity.’”In his ruling, US District Court Judge Terrence W. Boyle wrote that “the Takings Clause would be stripped of much of its meaning if the government could simply bar suits for just compensation. State governments could take property whenever they wanted without providing any compensation unless they chose to waive their immunity.”


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