A North Carolina Filmmaker Continues to Challenge State Sovereign Immunity
Posted on: October 28, 2022 by Gina McKIveen
For nearly two decades, Rick Allen, an experienced underwater videographer and professional photographer, documented the retrieval and recovery process of an 18th century pirate shipwreck off the coast of North Carolina. A dispute over the copyright in the works produced between Allen and the State of North Carolina (the “State”) is now approaching its tenth year.
A brief history
In 1718, well before the United States was its own nation with a Declaration of Independence and Constitution, off the coast of North Carolina a pirate called Blackbeard was aboard his prized ship, Queen Anne’s Revenge, when it crashed into a sandbar and sank to the bottom of the Atlantic Ocean. Although Blackbeard and his shipmates were unharmed, the nearly 40 cannons as well as other weaponry and personal items on board were buried underwater with the ship.
In 1996, the now infamous Queen Anne’s Revenge was discovered, exactly where the ship sank close to 300 years prior, off the shore from Beaufort, North Carolina by Intersal, Inc., a marine salvage company. While the State became the owner of the shipwreck according to federal law 43 U.S.C. §2105(c), which transfers ownership of any abandoned shipwreck embedded in the submerged lands to the state where the shipwreck is located, the government contracted with Intersal to conduct the recovery process. In turn, Intersal enlisted Allen, who is a North Carolina native, to join them on their dives and record the recovery. The contractual agreement between Intersal and Rick Allen allowed him to retain copyright over the works. Using the footage captured though his camera lens, Allen eventually created videos and images that traced the retrieval of these 18th century remains from sea to shore. More than 300,000 artifacts were uncovered during that time through a sometimes dangerous and often difficult retrieval process.
The legal case
In the early 2010s, Allen discovered that the State had uploaded some of the videos and images he captured during those shipwreck dives to its website without his consent. Upon this discovery, in 2013, Allen brought a copyright infringement claim against the State for violation of his exclusive rights, as well as a second claim for unconstitutional taking, which will be discussed later. These claims were never litigated. Instead, the parties entered into a settlement agreement in which they outlined their respective rights to the materials, and the State agreed to pay Allen $15,000.
The copyright infringement claim
Shortly thereafter, the State again posted five of Allen’s videos on its website and used one of his photos in a newsletter. Then, in 2015, the State legislature passed “Blackbeard’s Law” (SL2015-218 § 121-25(b)), which stated that “all photographs, video recordings, or other documentary materials of a derelict vessel…shall be a public record” and “any agreement, permit, or license shall be void and unenforceable as a matter of public policy.”
Allen responded by filing a copyright infringement claim against the State in a United States District Court, seeking a declaratory judgment that Blackbeard’s Law is an unconstitutional taking and violates his due process rights under the Constitution. Less than a year later, the State amended Blackbeard’s Law, dropping the clause which made “any agreement…void and unenforceable as a matter of public policy.” The State also moved to dismiss Allen’s claims, invoking its state sovereign immunity defense under the Eleventh Amendment, which prohibits federal courts from hearing cases brought by individuals against nonconsenting States. Allen countered this argument by stating that Congress had abrogated state sovereign immunity in the context of copyright infringement claims through the Copyright Remedy Clarification Act (“CRCA”), which establishes that, in respect of such claims, a State “shall not be immune, under the Eleventh Amendment or any other doctrine of sovereign immunity, from suit in Federal court” and it will be liable “in the same manner and to the same extent as” a private party. On this basis, Allen argued that the case should proceed. The District Court agreed, considering that the abrogation of state immunity in this instance was constitutional in accordance with the rights of Congress under § 5 of the Fourteenth Amendment. This section permits Congress to enact legislation to prevent states from depriving any person of life, liberty, or property, without due process of law, amongst other matters (the ‘due process’ clause).
The State appealed to the Court of Appeals for the Fourth Circuit, which overturned the District Court ruling. The Court of Appeals disagreed with the lower court’s interpretation that the CRCA allowed for the abrogation of state sovereign immunity in this case, arguing that such abrogation was not “congruent and proportional” in the circumstances.
Allen then petitioned the Supreme Court for certiorari. This was granted because the Fourth Circuit decision had invalidated the constitutionality of a federal statute (i.e. the CRCA). Justice Kagan, delivering the opinion for the Supreme Court, set out the two conditions which must be met in order for a federal court to hear a case against a nonconsenting State: (1) when Congress has enacted “unequivocal statutory language” abrogating state sovereign immunity, and (2) when Congress has the authority through some constitutional provision to encroach on state sovereign immunity. While the Court found the first condition was unquestionably met, the second condition required further examination.
Allen contended that Congress was provided with such authority either through Article 1 of the US Constitution, empowering Congress to grant copyright protection, or § 5 of the Fourteenth Amendment, authorizing Congress to enforce ‘due process’. All nine Supreme Court Justices unanimously affirmed the Fourth Circuit’s finding that state sovereign immunity was not abrogated by either provision.
As regards the first, that the Court concluded that “the power to ‘secure’ an intellectual property owner’s ‘exclusive right’ under Article I stops when it runs into sovereign immunity”. In other words, that Article cannot be used to “circumvent” the limitations that the Eleventh Amendment (on state sovereign immunity) places on federal jurisdiction over copyright cases.
On the second point, whilst § 5 of the Fourteenth Amendment was acknowledged to give Congress some authority to encroach on state sovereign immunity, that authority cannot be without limitations: There “must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” In applying the ‘congruence and proportionality’ assessment, the Court found that at the time Congress passed the CRCA there was not a significant history and pattern of state copyright infringement, noting merely 12 instances (as identified by a 1988 report by the Copyright Office on the effects of the Eleventh Amendment on copyright enforcement). The Court also reasoned that to satisfy the proportionality test and to “come within the reach” of the Fourteenth Amendment, infringements must be ‘intentional’. Merely negligent acts do not meet this threshold. Since only two of the 12 instances of state copyright infringement used to substantiate the CRCA were intentional, when the Court applied the congruence and proportionality test it found that the requirements had not been met for the Fourteenth Amendment (§ 5) to be engaged.
The unconstitutional takings claim
Following the Court’s unanimous decision against him on the copyright infringement front, the filmmaker refocused his efforts on the second of his two initial claims, namely that for unconstitutional taking. Allen argued that the State’s intentional taking of his property, even after receiving repeated express notices, without compensation violated the CRCA and the Fifth Amendment, which prohibits governments from taking private property without just compensation. Conversely, the State maintained that state sovereign immunity bars ‘takings’ claims against states in federal court.
The United States District Court had initially ruled that the then-prevailing law did not support Allen’s claims. However, the position of the law has changed since, thanks to a Supreme Court decision in Knick v. Township of Scott [139 S.Ct. 2162 (2019). In the current understanding, the Eleventh Amendment no longer bars a ‘takings’ claim against the state, which paved the way for Allen to file a motion for reconsideration at the United States District Court.
In light of this change in case law, the District Court Judge granted Allen’s motion for reconsideration on his takings claim in 2021. The State has once again appealed to the Fourth Circuit, but that court has also rejected the motion to dismiss the case. Whilst a ruling on the actual merits of the case is yet to be achieved, uncertainty remains as to whether the issue of abrogating state sovereign immunity will be resolved by Congress or Courts. Something only time will tell.
Image credit: @Qualiesin, via Wikimedia Commons CC BY-SA 4.0