State lawmakers have repealed “Blackbeard’s Law,” a measure passed in 2015 that Fayetteville underwater photographer Rick Allen believes was an attempt to stop him from suing the state for using his videos and photographs of the notorious pirate’s shipwreck without compensation.
Under Blacksbeard’s Law, the state designated all photography and videos of shipwrecks — including Allen’s footage of Blackbeard’s flagship, the Queen Anne’s Revenge — as public records that the state could use without payment.
Intersal Inc., a private company that had operated under a permit from the state Department of Natural and Cultural Resources, discovered Blackbeard’s shipwreck in 1996 in 28 feet of water near Beaufort Inlet along the North Carolina coast. Allen’s Nautilus Productions received the exclusive right to video and photograph the 305-year-old shipwreck and the recovery of its artifacts.
Allen said Gov. Roy Cooper signed a bill into law on June 30 that, in part, repealed Blackbeard’s Law. He said the state legislature unanimously approved the repeal.
Allen is married to Cindy Burnham, a freelance photographer for CityView.
In 2013, the Department of Natural and Cultural Resources acknowledged that it had violated copyrights owned by Allen and his company and paid $15,000 to settle Allen’s copyright infringement claim. Two years later, the state legislature passed Blackbeard’s Law, and Allen filed suit against it in federal court.
In 2020, the case made its way to the U.S. Supreme Court, which ruled that state governments are immune from copyright laws under constitutionally guaranteed sovereign immunity. That legal doctrine says that governments cannot be sued without their consent.
Allen earlier this year filed an amended complaint in U.S. District Court. He said the state is expected to respond to the complaint on Thursday.
Allen said he believes the legislature’s unanimous dismissal of Blackbeard’s Law is an attempt to thwart his lawsuit. But that won’t happen, he said.
“It doesn’t change the situation at all,” Allen said on Tuesday. “I think it just makes our case stronger because it proves that they used Blackbeard’s Law to get around copyright law.
“So yeah, we’re definitely going to fight. You know, if I steal your car and ride around in it for eight years, in fact, I still stole your car. That’s the problem.”
In his amended complaint, Allen alleges that the state declared eminent domain and violated his Fifth and 14th amendment rights to due process as well as failed to compensate him after taking his property.
Allen said he has been paying for his eight-year legal battle out of his own pocket. If he wins his amended complaint, he said, the state will be required to pay his legal fees.
Allen said a successful resolution of the case could have far-reaching effects.
“It’s really important for all creators, you know — artists, writers, musicians, software developers,” he said. “This is important to all of us. And we’re in a great position to fight that fight because, you know, the behavior of the state of North Carolina has been so egregious.”
Allen said the case could be drawn out for years more.
“This isn’t the end of the road, by a long shot, but it’s a good start,” Allen said in a news release. “The repeal of the law does nothing to negate the past and ongoing copyright violations, damages for those violations, or the eight years in which the state and its affiliates hid behind Blackbeard’s Law to justify their scandalous behavior.”
Nautilus Productions’ footage of Blackbeard’s shipwreck has aired on the BBC, the History Channel, Discovery Channel, National Geographic and other major media outlets.
Intersal, the company that discovered the shipwreck, has filed a separate breach-of-contract lawsuit against the state and its Department of Natural and Cultural Resources. That trial date is set for Feb. 19.
Blackbeard’s Law was approved on Aug. 18, 2015. Three weeks later, Allen said, the state posted five videos containing his copyrighted footage of the shipwreck on its website.
Allen filed suit on Dec. 1, 2015. Since then, Allen said, he has documented nearly two dozen new or ongoing copyright infringements.
Greg Barnes is an investigative reporter for CityView. He can be reached at email@example.com.