North Carolina Facing Infringement Liability in Pirate Ship Lawsuit

By: 
Casey Wareham

Frederick Allen ("Allen") and his video production company, Nautilus Productions ("Nautilus"), brought suit against North Carolina for alleged copyright infringement in December 2015.

Allen and Nautilus obtained rights to create video footage and photographs of the salvaging of Blackbeard’s flagship Queen Anne’s Revenge off the North Carolina coast. Allen subsequently registered his works with the U.S. Copyright Office.

Allen claims North Carolina infringed his work as early as the summer of 2013. Allen and North Carolina subsequently entered into a settlement agreement in October 2013 which clarified Allen’s and Nautilus’s rights under the agreement for the salvaging of Queen Anne’s Revenge. Allen and Nautilus alleged in their complaint that after entering into the settlement agreement, North Carolina continued infringing Allen’s copyrights by posting videos on YouTube and including a still image in a newsletter.

Before trial, North Carolina filed a motion to dismiss, asserting sovereign immunity under the Eleventh Amendment. North Carolina also asserted qualified immunity, and legislative immunity. Allen and Nautilus argued that North Carolina waived its sovereign immunity in the 2013 settlement agreement and that North Carolina’s sovereign immunity was also abrogated by the federal Copyright Remedy Clarification Act of 1990, 17 U.S.C. § 511 ("CRCA"). In addition, Allen and Nautilus also argued that injunctive relief was available under Ex parte Young, 2019 U.S. 123 (1908).

The District Court disagreed with North Carolina, concluding its Eleventh Amendment immunity was validly abrogated by the CRCA, and that the state officials did not have qualified or legislative immunity in their individual capacities.

North Carolina filed an interlocutory appeal to the Fourth Circuit. The Fourth Circuit reversed the District Court’s decision, holding that North Carolina did not waive its sovereign immunity and the CRCA did not abrogate its Eleventh Amendment immunity. The Fourth Circuit also held that the Ex parte Young exception to Eleventh Amendment immunity did not apply in this case.

Allen and Nautilus appealed the Fourth Circuit decision, and the Supreme Court has agreed to hear the case.