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State Not Liable for Using Film of Sunken Pirate Ship

By William Vogeler, Esq. on July 19, 2018 | Last updated on March 21, 2019

A federal appeals court rejected a filmmaker's complaint that North Carolina pirated his footage of Blackbeard's sunken ship.

In Allen v. Cooper, the U.S. Fourth Circuit Court of Appeals said the state was immune from liability for using the film of Queen Anne's Revenge. It ran aground in 1718 near Beaufort, North Carolina, where the plaintiff's crew filmed the underwater wreckage.

The state used some images of the pirate ship for tourism and educational purposes, a fair use under copyright law. Besides, not even Blackbeard's ghost claimed it.

Shot Five Times

Navy sailors shot the notorious pirate five times, stabbed him 20 times, and then cut off his head just to make sure he was dead. But that's another story.

In the Fourth Circuit case, Frederick Allen and Nautilus Productions documented the salvage of Blackbeard's ship with 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."

In 2013, he discovered North Carolina was using some of his footage in online promotional materials. He sued, and a trial judge ruled in his favor.

However, the appeals court said the state's action was "quintessentially legislative in nature and falls squarely within the scope of legislative immunity."

Ship Going Down

At oral arguments, the plaintiffs appeared to be going down with the pirate ship. Immunity was already on the table.

Judge Paul Niemeyer didn't seem sympathetic. He found no evidence that the state lost its immunity, and he didn't think much of Blackbeard either.

"Is North Carolina proud of Blackbeard?" the judge asked. "He was one of the worst of all, wasn't he?"

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