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Fascinating Fayetteville: Still Diving Into a Challenge


By: Michael Futch

Photography by: Cindy Burnham

Rick Allen with his dog, Sir Edward Thatcher near Morehead City, NC Thursday Dec. 31, 2020

Ten months after losing most of his left arm and nearly his life, Rick Allen returned to the calming depths of the Atlantic Ocean, scuba-diving once again in all his Aquaman-like glory.

Even a devastating explosion in the garage of his home 10 years ago failed to keep him out of the water.

It’s what this 57-year-old Fayetteville underwater videographer from the rugged mountains of North Carolina loves to do.

“When I was in the hospital, my first goal was to go back diving on the Queen Anne’s Revenge,” he said last month of Blackbeard’s storied 300-year-old pirate vessel that lies underwater near Beaufort Inlet.

Since about 1998, Allen had been documenting the archaeological reclamation of the shipwreck. He has since challenged the sovereign immunity and copyright law in the United States, saying the state of North Carolina illegally published five of his videos to YouTube. The videos show archeological work at the Blackbeard shipwreck. Allen also charged that the state illegally published a photo he made of a research barge working at the wreck site.

North Carolina disputes his allegations that its use of his videos and photo violated his copyright.

Initially filed in late 2015, the legal issue against the N.C Department of Natural and Cultural Resources has since gone before the U.S. Supreme Court. In March of 2020, the U.S. Supreme Court ruled against Allen saying that state governments had sovereign immunity and could not be sued for copyright violations. The case has drawn attention worldwide.

A former television cameraman for, among others, WRAL in Raleigh and WTVD in Durham, Allen started shooting underwater in 1983. He established a Fayetteville business largely based around his love of the sea: Nautilus Productions specializes in documentary production and underwater videography.

Since 1983, he has logged more than 1,500 dives. That’s more than 1,000 hours underwater. He has never stopped. Over the summer, he dived with the sharks again.

If I couldn’t dive,” Allen said matter-of-factly, “it’s time to die.” Obviously, it wasn’t Allen’s time to check out of this life a decade ago – at 11:20 on the night of Jan. 3, 2011. “All my friends tend to commemorate this anniversary.

I try to ignore it,” he said with a chuckle from the dining room of his three-bedroom home in western Fayetteville.

For an interview, he sat at the dining table, speaking through a cloth mask in keeping with safety precautions. The mask commemorates his trip to the Supreme Court. His wife, photographer Cindy Burnham, was cooking a batch of homemade spaghetti sauce in the adjoining kitchen. Thatcher, the couple’s gentle giant of a rescue dog, mostly laid on the floor next to the one-armed patriarch of the family.

On that cold January night 10 years ago, Allen had just returned to his home from a hockey game. The light had burned out in the garage, so he couldn’t see after parking his Chevy Suburban SUV.

Earlier, Allen had laid out all his scuba gear to be serviced, so the underwater tanks and dive bags were lined out. But Allen forgot that he had an oxygen tank in one of the regular aluminum scuba tanks in the garage, placed between his Suburban and Cindy’s car.

“I hit one of the tanks with my knee. And then I could hear the oxygen tank start to wobble back and forth,” he said, ”so I kind of took a step away from it. I didn't want it to hit my foot and then there was this pop. I remember thinking, ‘Oh, man! This is gonna hurt’ because I knew instantly what had happened. There was this bright white flash and then this pressure wave – woohhh – that hit me.

“It’s pitch black,” said Allen, “and I’m trying to catch my balance. My eyes are open, but I can’t see. And I’m struggling to stay upright. I keep
reaching for my left arm to catch my balance. Finally, I look down on my left arm, and it’s gone. My first thought was, ‘My life has just changed forever.’ Then my next thought is, ‘Oh, good, I’m not going to bleed to death’ because I didn’t have blood coming out of an artery.

“Apparently, when the tank exploded, a piece of shrapnel cauterized the end of my elbow when it cut through it. Incredibly lucky. There’s this
whole string of lucky things that happened that night,” he surmised.

His next thought – horrific: “I’m on fire.”

Allen called for Burnham, whom he sensed he could hear on the other side of the wall, to call 911 and grab the fire extinguisher. Unbeknownst to him, the wall into her bedroom had been blown down. That was why he was able to hear her.

The explosion blew apart the garage and collapsed the bathroom wall where Burnham had been brushing her teeth.

Because the floor of the garage was blanketed in debris, and he was unable to see, Allen found himself kind of trapped. His wife sprayed him with the fire extinguisher, dousing the flames. And with her help, by grasping her hand, he was able to scramble across the hood of her car.

In the pitch black with a layer of smoke in the house roughly chest high, the couple worked their way through the kitchen, through the dining room and out the front door into the 18-degree temperature of the winter night.

Allen soon laid down – fully aware he was about to go into shock – on a little rise at the end of their driveway. Wearing only his shoes, underwear
and what little bit was left of a shirt, he braced for the extreme cold.

“Everything was burned off,” Burnham said. “He was just so much messed up.”

On a pain level, Allen recalled, it was akin to “a 15” on a scale of 1 to 10. “It was that intense,” he said. “I could feel it. Best way I can describe it: You turn on your toaster oven and stick your hand in and hold it there to that moment where you can’t stand it anymore and have to pull it out. That’s what it felt like – at that point.”

Among the lucky things that occurred that night in his favor, a Life Flight helicopter was able to land about a mile away in front of the Seventy-First High School campus off Raeford Road. The ambulance drive would be a brief one. The fire department, too, was in the surrounding vicinity.
Allen, a half-glass-full sort of guy, tried to maintain a positive outlook amidst a dire situation.

“There was something really interesting that happened while I was laying in the front yard. There was a fire department right up the road,” he said. “So when I hear sirens, I know they’re coming, and help will be on its way. I hear the sirens. That means the first responders are coming.

They’ll get here, they’ll triage me, they’ll put me in an ambulance. That’s the next thing. And I’m going to end up in the hospital. I remember when the first responder arrived, he was asking me what had happened and all that. I could hear in his voice he was very upset. “Apparently, I looked pretty bad,” Allen continued, as Thatcher found a new place close by to plop down. “I was black from head to toe and pretty much hairless, from what I understand.”

Allen’s arm was largely gone, he had a gash in his side, second- and third-degree burns covered more than 20 percent of his body, and the remainder of his body was covered in flash burns.

“And so somewhere in there – and I always describe it this way because that’s the way it happened – it’s like a film strip,” Allen remembered. “And this picture starts over here on the right. And this thought just kind of comes by the front of my brain and goes, ‘You know. You can let go. And it will all be OK.’ Then off it goes to the left.

“It was just this thought.

“My next thought was, ‘Oh, hell, no. It’s not my day to die.’ ” As for Burnham, she ended up needing a dozen stitches across her nose and eyes, and there was glass on her chest and in her feet.

“It felt like it took forever,” Rick Allen said. “But it was only a few minutes.”

Just as it does in their daily lives, humor would play a key role in Rick’s recovery. “You go through life laughing or crying,” he said. “I choose laughing. Humor is hugely important.” Because he wanted his wife to know he was OK that fateful night, Allen came up with a story that he knew would get back to her and give the hope that she so needed regarding her badly injured man.

Allen asked an emergency medical technician who was tending to him that night, “'Well, look. Am I going to be able to play piano with just one hand?" “He said, ‘I don’t know, sir. We’ll see about all that.’ “I went, ‘Cool, ‘cause I couldn’t play with two.’"

A little over six hours later, surgeons wheeled Allen out of the N.C. Jaycee Burn Center in Chapel Hill. They called Burnham to his side before inducing a coma.

Cindy Burnham with her husband Rick Allen at the North Carolina Jaycee Burn Center at UNC Hospitals in Chapel Hill. He had burns on 20 percent of his body, and his left forearm had to be amputated. Janurary 5, 2011.

She grabbed his good hand and said, “Rick, it’s only a flesh wound.” “He laughed and his little thumb starts going like this,” she said, wiggling her thumb around. “So I knew I could walk away. His brain was still working.” He doesn’t remember any of it.

Three days later, the story with the EMT was relayed to Burnham, and she knew for certain that her soulmate was bracing for the fight of his life. He would spend two months in the drug-induced coma. During his long recovery, Allen underwent about a dozen surgical procedures. “I was more angry than depressed,” he said. “Just frustrating when I couldn’t do something, or it was challenging because it was hard to do and it was something I had done before. I’ve always been positive about things. I like challenges, and this is certainly a challenge.”

Support was forthcoming, from family, friends, media members from the competing newspaper and broadcast journalism worlds, the Fayetteville community. That made it easier. Allen drew energy from them as he persevered, eager to grasp some sense of normalcy.

“Almost to a person, they didn’t treat me any different. After the accident or before,” he said. “If anything, they gave me a harder time than before. And I’ve heard every onearmed joke that there is known to man.”

Allen has a prosthetic that he wears daily on a limited basis. It’s uncomfortable to him.

“It’s an ongoing process. There are reminders every day. It just becomes a part of your life,” he said of living without a limb. “You’re never going to be back where you were before. You’re going to get close. Everything changes to some degree. I was a really good videographer. But that takes two hands. I can still do it, but if I have a project, I have someone else shoot.”

As he put it with a little laugh, “I’m in the scratch-and-dent department.”

It would be a year before Allen weaned himself off the drugs he took for pain. And it would be 2013 before he would get up in the morning and, as he said, “start to feel human.”

Rick Allen videotapes a 9 foot female sandtiger shark on the wreck Caribsea in 100' of water off the coast of North Carolina.

Like a shark in the ocean blue, Allen has adapted, which has helped him survive and thrive in his daily life.

“It has definitely hurt,” he said of his video production company. “There are jobs I won’t take.”

Last year, the National Geographic Channel aired underwater footage that Allen filmed from the wreckage of Blackbeard’s Queen Anne’s Revenge on the television program “Drain the Oceans.” Next summer, he said, Nautilus Productions is providing footage during Shark Week on The Discovery Channel.

Lawyer Derek Shaffer, left, and underwater videographer Rick Allen, of Fayetteville, speak outside the U.S. Supreme Court in Washington after oral arguments in his bid to revive a copyright lawsuit involving images of Blackbeard’s wrecked ship November 5, 2019.[/caption]

As for his pending Supreme Court lawsuit against the state of North Carolina, he said, “I’ve always been an advocate for photographers and videographers for protecting their work and copyrighting their work. I’ve been doing that for 20 years, anyway. And then I get in a copyright battle with the state of North Carolina and that ended up in United States Supreme Court, and it continues now.

The Supreme Court ruled against Allen's case in which he sued North Carolina for publishing his videos and a photo of the Blackbeard shipwreck. A motion for reconsideration has been filed.

“That’s kind of my No. 1 job – advocating for other artists, writers, composers and software developers, musicians, videographers just like me. Because right now states can infringe on their intellectual property pretty much without consequence.”

In March 2020, the Supreme Court ruled against Allen based on precedence and said that states do have sovereign immunity in copyright and cannot be sued for copyright damages.

“The only relief that’s left is injunctive relief, which is after the fact. The damage is done,” Allen said. “So in a weird twist of the American legal system, we have filed a motion for reconsideration.

“Because the United States Constitution guarantees me exclusive rights to my writings and discoveries. It’s called the copyright clause. But I have a constitutional right with no remedy right now.”

A motion for reconsideration has been filed, essentially asking that Allen has had his constitutional rights violated as a result of the ruling and that he needs relief.

“So we will see what Judge (Terrence) Boyle decides to do,” he said. “I will say in the next few months he will probably rule. That has consumed a great deal of my time and interest since 2013.”

He estimated that he has spent “in excess of $350,000. When the case went to court, North Carolina asserted that it was protected by sovereign immunity. U.S. District Court Judge Boyle rejected that claim. Before the litigation reached a decision on whether North Carolina violated Allen’s copyright, the state appealed. The 4th Circuit Court of Appeals unanimously overturned Boyle, so Allen appealed to the Supreme Court.

Currently, Allen serves as vice chair on the board of The Arts Council of Fayetteville/Cumberland County. He said he finds it a pleasure to serve because “The Arts Council makes Fayetteville and Cumberland County such a better place to live.”

Because of COVID-19, he was unable to dive as often as he wanted over the summer.

He looks forward to returning to the ocean this summer. Returning to the undersea world of his beloved sharks and sunken shipwrecks.
“I’ve been in the water all my life. I’m more comfortable in the water than I am on land,” he said. “I have phantom pain all the time. When I dive, I don’t have it.”