Fourth Circuit Rules North Carolina Immune from Filmmaker’s Lawsuit

RICHMOND (CN) – The Fourth Circuit held Tuesday that North Carolina is immune from being sued by a filmmaker who accused the state of using his copyrighted images of Blackbeard’s pirate ship while it was being salvaged off the Carolina coast.

In its ruling, the three-judge panel said the state defendants in the underlying lawsuit are protected by legislative immunity from being sued by filmmaker Frederick Allen and his film company, Nautilus Productions LLC, over the state’s use of video and photographs he captured of the wreck of the Queen Anne’s Revenge.

In 1717, Edward Teach, better known as Blackbeard, stole a French merchant ship and renamed it Queen Anne’s Revenge. A year later that ship ran aground off the coast of Beaufort, North Carolina, where it remains to this day as a tourist attraction, educational tool and point of pride for the Tar Heel State.

In 1996, a salvage company called Intersal discovered the remains and in 1998 they entered into a contract with the state to document and salvage the ship. According to the contract, the state owned the ship’s remains and the goods inside while the company got a portion of the money made from selling media of the ship.

Intersal hired Allen and Nautilus Productions to do the documentation of the salvage where he collected “a substantial archive of video and still images showing the underwater shipwreck and the efforts of teams of divers and archaeologists to recover various artifacts from it.”

Allen filed thirteen separate copyrights on the footage with the U.S. Copyright Office.

In 2013, Allen said, he discovered the state using some of his ship footage in online promotional materials without asking for his consent. He filed suit and found support for his argument at the lower court, but, in a 35-page opinion published Wednesday, the 4th Circuit reversed that decision.

Writing for the panel, U.S. Circuit Judge Paul Neimeyer said “the North Carolina officials were sued in their individual capacities for conspiring to convert [Allen’s] copyrighted works into public documents … but the only actual conduct alleged in furtherance of the … conspiracy is quintessentially legislative in nature and falls squarely within the scope of legislative immunity.”

While Allen had argued the law was passed specifically to rebuke his suit, Neimeyer quoted Fourth Circuit precedent: “legislative immunity is a shield that protects despicable motives as much as it protects pure ones.”

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