ALLEN v. COOPER

Nos. 17-1522, 17-1602.

895 F.3d 337 (2018)

Frederick L. ALLEN; Nautilus Productions, LLC, Plaintiffs-Appellees, v. Roy A. COOPER, III, as Governor of North Carolina; Susi H. Hamilton, Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; Susan Wear Kluttz, former Secretary of the North Carolina Department of Natural and Cultural Resources, individually; D. Reid Wilson, Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, in his official capacity; Karin Cochran, former Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually; Kevin Cherry, Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; G. Neel Lattimore, Director of Communications of the North Carolina Department of Natural and Cultural Resources, in his official capacity; Catherine A. Oliva, Director of Marketing of the North Carolina Department of Natural and Cultural Resources, in her official capacity; Cary Cox, former Assistant Secretary, Marketing and Communications of the North Carolina Department of Natural and Cultural Resources, individually; Stephen R. Claggett, a/k/a Steve Claggett, State Archaeologist, individually and in his official capacity; John W. Morris, a/k/a Billy Ray Morris, Deputy State Archaeologist-Underwater and Director of the Underwater Archaeology Branch of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; North Carolina Department of Natural and Cultural Resources; State of North Carolina, Defendants-Appellants, and Friends of Queen Anne's Revenge, a Non-profit Corporation, Defendant. The Copyright Alliance; Ralph Oman, Amici Supporting Appellees. Frederick L. Allen; Nautilus Productions, LLC, Plaintiffs-Cross-Appellants, v. Roy A. Cooper, III, as Governor of North Carolina; Susi H. Hamilton, Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; Susan Wear Kluttz, former Secretary of the North Carolina Department of Natural and Cultural Resources, individually; D. Reid Wilson, Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, in his official capacity; Karin Cochran, former Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually; Kevin Cherry, Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; G. Neel Lattimore, Director of Communications of the North Carolina Department of Natural and Cultural Resources, in his official capacity; Catherine A. Oliva, Director of Marketing of the North Carolina Department of Natural and Cultural Resources, in her official capacity; Cary Cox, former Assistant Secretary, Marketing and Communications of the North Carolina Department of Natural and Cultural Resources, individually; Stephen R. Claggett, a/k/a Steve Claggett, State Archaeologist, individually and in his official capacity; John W. Morris, a/k/a Billy Ray Morris, Deputy State Archaeologist-Underwater and Director of the Underwater Archaeology Branch of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; North Carolina Department of Natural and Cultural Resources; State of North Carolina, Defendants-Cross-Appellees, and Friends of Queen Anne's Revenge, a Non-profit Corporation, Defendant.

United States Court of Appeals, Fourth Circuit.

Decided: July 10, 2018.


Attorney(s) appearing for the Case

ARGUED: Ryan Y. Park , NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees. Susan Freya Olive , OLIVE & OLIVE, P.A., Durham, North Carolina, for Appellees/Cross-Appellants. Andrew Michael Gass , LATHAM & WATKINS LLP, San Francisco, California, for Amicus Ralph Oman. ON BRIEF: Josh Stein , Attorney General, Matthew W. Sawchak , Solicitor General, Amar Majmundar , Senior Deputy Attorney General, Olga E. Vysotskaya de Brito , Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees. G. Jona Poe, Jr. , POE LAW FIRM, PLLC, Durham, North Carolina; David L. McKenzie , OLIVE & OLIVE, P.A., Durham, North Carolina, for Appellees/Cross-Appellants. Kelly M. Klaus , MUNGER, TOLLES & OLSON LLP, San Francisco, California, for Amicus Copyright Alliance. Perry J. Viscounty , Allison S. Blanco , Costa Mesa, California, Jennifer L. Berry , San Diego, California, Patrick K. O'Brien , LATHAM & WATKINS LLP, San Francisco, California, for Amicus Ralph Oman.

Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Brinkema joined.


Frederick Allen, a videographer, and Nautilus Productions, LLC, Allen's video production company, commenced this action, which, at its core, alleges that North Carolina, its agencies, and its officials (collectively, "North Carolina") violated Allen's copyrights by publishing video footage and a still photograph that Allen...

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