It’s not often when an individual suffers a crushing loss at the Supreme Court — a unanimous one, too — only to then recover legal footing in the same case. But Wednesday brought such a development for Rick Allen and his Nautilus Productions. All thanks to the Fifth Amendment.

Allen has been in court with North Carolina for years after the state took his footage of an 18th century ship led by the notorious pirate Blackbeard. First, officials in the state’s culture agency posted images of a salvage operation on its website. Later, came video. And then eventually, after the dispute had slipped into court, state lawmakers passed a statute treating all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record.”

Maybe outrageous, perhaps consequential, but in March 2020, justices led by Elena Kagan came to the conclusion that states are immune from copyright suits in federal court. In ruling against Allen, the high court examined the 11th Amendment to the U.S. Constitution, where federal courts are prohibited from entertaining lawsuits from citizens against states, plus efforts by Congress to abrogate such immunity in the intellectual property context. Allen’s setback came despite Justice Stephen Breyer’s musing at the oral hearing that a state might decide to post Marvel movies online and charge $5.

So Allen’s case against North Carolina got remanded — where he pushed U.S. District Court Judge Terrence Boyle to reconsider a prior ruling that disallowed a claim based on the Takings Clause of the Fifth Amendment. That’s the part where citizens can’t be deprived of property without just compensation.

Previously, the judge had ruled a Takings Clause claim was also barred by the 11th Amendment but not anymore.

What’s changed?

A different Supreme Court decision, specifically the one in 2019, Knick v. Township of Scott, Pennsylvania. This case dealt with a town’s ordinance that cemeteries had to remain open to visitors during the day, and a woman’s challenge when she was told that her small family graveyard on a 90-acre property was violating the ordinance. Long story short, the Supreme Court’s conservative justices decided the woman didn’t first have to seek compensation in a state court; she could pursue a Takings Clause claim.

And now too can Allen, after Boyle decides to apply Knick here.

“Structurally, the Takings Clause would be stripped of much of its meaning if the government could simply bar suits for just compensation,” writes Boyle in his latest ruling (read here). “State governments could take property whenever they wanted without providing any compensation unless they chose to waive their immunity. Additionally, applying state sovereign immunity to the federal Constitution voids the Constitution’s purpose of protecting the enumerated rights regardless of the State’s political whims.”

Allen is now celebrating the decision and highlighting what it means to other creators. He says, “We look forward to continuing our fight to protect the intellectual property rights of all writers, musicians, filmmakers, software developers and other creators against misuse by North Carolina and other state entities. Under current U.S. law states and state entities can sue others for copyright infringement and damages. However, U.S. citizens and corporations are legally barred from suing states or state entities for those very same copyright infringements or for damages!”

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