North Carolina U.S. District Judge Terrence Boyle unsheathed his legal cutlass and slashed into some longstanding jurisprudence on 11th Amendment sovereign immunity in a swashbuckling order involving a copyright squabble over shipwreck photos of the Queen Anne’s Revenge.
The case centers on Frederick Allen, owner of Nautilus Productions, the exclusive underwater photographer of Blackbeard’s ship, which is near the Beaufort inlet. He received a $15,000 settlement from the state in 2014 after the Department of Natural and Cultural Resources posted Allen’s footage online without his consent.
But he alleges that the state continued to use his videos and photos of the shipwreck after the settlement. Then the scurvy dogs passed an amendment to an existing statute that converted his copyrighted work to public record, he claims.
After Allen sued, the state claimed sovereign immunity and Boyle reluctantly ruled — after an eight-page attack on 11th Amendment case law dating back to the late 1800s — that he was “constrained under the absolute hierarchical system of courts in the federal judiciary, to hold that the defense of sovereign immunity is available to the states in federal court in a case arising under this Court’s federal question jurisdiction.”
Boyle stressed that “under a proper understanding of the Eleventh Amendment, defendants [the state] would have no basis upon which to raise a defense of sovereign immunity in petitioning for a dismissal of this action.”
While he dismissed Allen’s state law causes of action, he found that the federal copyright claims could not be tossed on state immunity grounds, which keeps the case afloat. He also wrote that Allen’s argument was sufficient at this point to allow the court to “draw a reasonable inference that [the amended state law] is invalid as it purports to regulate a matter in the express domain of federal law.”
Could yet another state law be taking a long walk off a short plank, joining more than a half dozen other ill-fated statutes — from redistricting and voter ID changes to laws that undercut the governor’s powers — that have sunk in the dark waters of invalidation?
Davy Jones’ locker is waiting.