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Blackbeard’s revenge: State sovereign immunity ends long running copyright battle

The US Court of Appeals for the Fourth Circuit reversed a 2021 district court ruling and vacated a subsequent 2024 ruling in a decade-long legal battle over copyright infringement claims related to the pirate Blackbeard’s Queen Anne’s Revenge shipwreck, concluding the claims were barred under state sovereign immunity. Allen v. Stein, Case No. 24-1954 (4th Cir. Jan. 23, 2026) (Niemeyer, King, Harris, JJ.)

Background

The dispute stems from Frederick Allen and Nautilus Productions’ allegations that the state of North Carolina and its officials infringed on Allen’s copyrights for photographs and videos of the shipwreck recovery project.

Allen initially filed suit in 2015, alleging that North Carolina officials infringed his copyrights by using his footage without authorization and enacting legislation (dubbed “Blackbeard’s Law”) that designated such materials as public records. The district court largely dismissed Allen’s claims in 2017 on sovereign immunity grounds, but the Fourth Circuit reversed the district court’s ruling on the validity of the Copyright Remedy Clarification Act (CRCA) in 2018, concluding that Congress had not validly abrogated state sovereign immunity for copyright claims. The Supreme Court affirmed that decision in Allen v. Cooper (2020), confirming that states are immune from copyright infringement suits under the CRCA.

Despite the Supreme Court’s ruling, Allen sought to reopen the case in 2021, relying on Federal Rule of Civil Procedure 60(b)(6) and introducing a new constitutional theory based on United States v. Georgia (2006). The district court allowed Allen to amend his complaint and proceed with his claims under the “Georgia theory,” which argues for case-by-case abrogation of state sovereign immunity for conduct that violates the Fourteenth Amendment. In 2024, the district court denied North Carolina’s sovereign immunity defense for Allen’s copyright infringement claims under this theory, allowing the case to proceed. North Carolina appealed.

Fourth Circuit decision

The Fourth Circuit reversed the 2021 district court decision and vacated the 2024 ruling, finding that the district court abused its discretion in reopening the litigation. The Fourth Circuit explained that Rule 60(b)(6) was the only applicable procedural mechanism for reconsideration because the case had been fully resolved in 2020 following the Supreme Court’s decision and Allen’s voluntary dismissal of the remaining defendant. The Court emphasized that Rule 60(b)(6) requires “extraordinary circumstances,” which were not present in this case. Allen’s failure to raise the Georgia theory earlier in the litigation did not meet this standard.

The Fourth Circuit also criticized the district court’s reliance on Rule 54(b), which applies to interlocutory orders, rather than Rule 60(b), which governs final judgments. The Court noted that the district court’s 2021 decision was based on erroneous legal premises and failed to properly evaluate the timeliness, merits, and prejudice factors required under Rule 60(b).

Pendent appellate jurisdiction

A key aspect of the Fourth Circuit’s decision was its exercise of pendent appellate jurisdiction to review the 2021 district court ruling, even though it was not directly appealable. The Fourth Circuit determined that the 2021 decision was “inextricably intertwined” with the appealable 2024 ruling on sovereign immunity because the [...]

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All’s Well That Edwell: Two Markets Can Be Substantially Different if Defined Narrowly Enough

Despite evidence of actual confusion and seemingly similar services, the US Court of Appeals for the Tenth Circuit upheld a district court’s noninfringement finding concerning two nearly identical education-related marks because the parties targeted different goods and marketing channels. M Welles & Assocs., Inc. v. Edwell, Inc., Case No. 22-1248 (10th Cir. May 31, 2023) (Ebel, Bacharach, JJ.) (Tymkovich, J., dissenting). In his dissent, Judge Tymkovich criticized the lower court for characterizing the scope of the parties’ services too narrowly and observed that “[a]ny court can find some differences between businesses and markets at a particular level of generality.”

M Welles & Associates provides classes, seminars and certification workshops in the project management space under the brand name EDWEL (derived from “education done well”). The classes are designed for professionals in a variety of industries, including information technology, healthcare, education and the military. Welles primarily advertises its services via social media, Google and email, and further owns a variety of domain names incorporating both EDWEL and EDWELL. The defendant, Edwell, is a nonprofit organization that provides mental health coaching services to schoolteachers using the domain name Edwell.org and the brand name EDWELL (derived from “to be an educator and to be well”). Edwell operates by partnering with schools to provide its services and currently has partnerships with 10 K-12 public schools. Edwell does not target institutions of higher learning and does not offer services to corporations.

Welles first learned of Edwell’s services when it received a call from a potential customer asking about classes at Denver North High School—classes that were in fact offered by Edwell, not Welles. Welles sent a cease-and-desist notice to Edwell, which rebranded to “Educator Wellness Project” for a short time before reverting back to EDWELL. Welles then sued Edwell for trademark infringement, and the district court found that there was no likelihood of confusion. Welles appealed.

Welles raised three arguments on appeal:

The magistrate judge used the wrong legal standard in assessing likelihood of confusion.
The Tenth Circuit should adopt a presumption of confusion.
The magistrate judge clearly erred in the analysis of Edwell’s intent, the similarity of the parties’ services and marketing, the degree of purchaser care and actual confusion.

Welles also moved to supplement the appellate record with new evidence of actual confusion that occurred after the trial.

Supplementation

The Tenth Circuit first addressed Welles’s motion, finding that there was no legitimate basis for supplementing the record. Fed. R. of Civ. P. 10(e) permits a court to modify the appellate record “only to the extent necessary to ‘truly disclose what occurred in the district court.’” Because the new evidence of actual confusion was not before the district court, the Tenth Circuit concluded that Rule 10(e) would not permit it to be added to the record. The Court further reasoned that the rare exception to Rule 10, which permits the court to supplement the record to correct misrepresentations, demonstrate mootness, or raise an issue for the first time on appeal, did not [...]

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