Intersal, Inc. v. Wilson

Intersal, Inc. v. Wilson, 2023 NCBC 15. STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 15 CVS 9995 INTERSAL, INC., Plaintiff, v. D. REID WILSON, Secretary, North ORDER AND OPINION ON Carolina Department of Natural and Cultural Resources; NORTH CROSS-MOTIONS FOR CAROLINA DEPARTMENT OF SUMMARY JUDGMENT NATURAL AND CULTURAL RESOURCES; THE STATE OF NORTH CAROLINA; and FRIENDS OF QUEEN ANNE’S REVENGE, a Non-Profit Corporation, Defendants. I. INTRODUCTION 1. In 1996, after almost a decade of searching, Intersal, Inc. (“Intersal”), a marine research and recovery company, discovered the storied Queen Anne’s Revenge (“QAR”), flagship of the notorious pirate Blackbeard, off the coast of North Carolina. The vessel reportedly sank near Beaufort Inlet in 1718, and it has been the stuff of legend since. 2. Although no treasure chests of gold were found in the debris, historical relics have been recovered from the QAR, and the rights to make images, replicas, and narratives about the relics have amounted to another form of treasure. Persistent disputes over the division of these rights have led to this litigation.  3. Intersal and Defendants, including the North Carolina Department of Natural and Cultural Resources (“DNCR”), 1 present their claims to the Court on cross-motions for summary judgment, (the “Motions”) (ECF Nos. 153, 160). For the reasons stated below, the Court GRANTS in part and DENIES in part the Motions. Linck Harris Law Group, PLLC, by David H. Harris Jr. and Kilpatrick Townsend & Stockton, LLP by Dustin T. Greene, Richard J. Keshian, Elizabeth Winters and Kyleigh E. Feehs for Plaintiff Intersal, Inc. N.C. Department of Justice, by Michael Bulleri, Amar Majmundar, Brian D. Rabinovitz, Orlando L. Rodriguez and Charles G. Whitehead for Defendants D. Reid Wilson, et al. Earp, Judge. II. FACTUAL BACKGROUND 4. The Court does not make findings of fact when ruling on motions for summary judgment. “Rather, the Court summarizes the relevant evidence of record, noting both the facts that are disputed and those that are uncontested, to provide context for the claims and the Motions.” Aym Techs., LLC v. Rodgers, 2019 NCBC LEXIS 64, *2 (N.C. Super Ct. Oct. 16, 2019) (citing Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142 (1975)). The following background, describing the evidence and noting relevant disputes, is intended to provide context for the Court’s analysis and ruling. 5. Intersal is a Florida corporation registered to do business in North Carolina. (Third Am. Compl. ¶ 14, ECF No. 106.) 1 DNCR was formerly known as the North Carolina Department of Cultural Resources (“DCR”). The two names are used interchangeably in this Order and Opinion.  6. DNCR is an executive agency of the State of North Carolina. (Third Am. Compl. ¶ 16.) Defendant Wilson is the Secretary of DNCR. (Notice of Substitution of Def., ECF No. 149.) 7. In 1994, DNCR issued Permit No. 94 BUI 585 (the “QAR Permit”) to Intersal, authorizing Intersal to search for the QAR, which sank off the North Carolina coast in 1718. (Third Am. Compl. ¶ 21; Pl.’s Resp. Defs.’ Mot. Dismiss, Ex. 6 [“QAR Permit”], ECF No. 79.) 8. Shortly thereafter, DNCR issued Permit No. 94 BUI 584 to Intersal, authorizing Intersal to search for a second ship, the El Salvador, which also reportedly sank near Beaufort Inlet in 1750. (Third Am. Compl. ¶ 20; Defs.’ Mot. Summ. J., Ex. 25 [“El Salvador Permit”], ECF No. 159.25.) 9. The QAR Permit specified that Intersal would be entitled to 75% of “[a]ny [coins and precious metals] recovered during Phase Five [the salvage phase] of the project.” 2 (QAR Permit, at 2.) In contrast, the El Salvador Permit authorized only “site assessment activities,” (target relocation, limited recovery of artifacts, data analysis and reporting), as opposed to salvage activities. 3 (El Salvador Permit at 1.) In the event the El Salvador was located, “more extensive investigations” such as 2 The federal Abandoned Shipwreck Act of 1987, 43 U.S.C. § 2105(c), and State law, N.C.G.S. § 121-22, provide that a shipwreck recovered from the submerged lands of the State of North Carolina belongs to the State. However, the State is free to cede some or all of its ownership rights. 3 The 2013 El Salvador Permit allowed for the recovery of artifacts or other site materials on a limited basis for commercial salvage with DNCR approval. With that exception, all materials recovered were to remain the property of the State of North Carolina. (El Salvador Permit, at 2-3.) “large scale excavation and/or the recovery of an extensive number of artifacts” would require a separate agreement with the State. (El Salvador Permit at 4-5.) 10. The El Salvador Permit limited Intersal’s activities to one year, but it could be renewed annually, “subject to any changes in the permit terms [DNCR] deems appropriate, providing [Intersal] has satisfactorily met all the terms and conditions of this permit.” Moreover, the Permit stated that it “in no way constitute[d] a guarantee by [DNCR], as the permitting agency, that future Permits [would] be automatically granted to [Intersal].” (El Salvador Permit at 1-2.) 11. The El Salvador Permit required Intersal to demonstrate to the satisfaction of DNCR that it had “provided for facilities within the State of North Carolina, sufficient in size, security, equipment, staffing, and supplies” to perform conservation and analytical work on the artifacts before it could undertake recovery efforts. (El Salvador Permit at 3). 12. On 21 November 1996, operating under the authority of its permits, Intersal discovered the QAR near Beaufort Inlet, just over a mile off Bogue Banks, North Carolina. (Third Am. Compl. ¶ 22.) 13. On 1 September 1998, Intersal, DNCR, and a non-party, the Maritime Research Institute (“MRI”), entered into an agreement regarding the QAR and any resulting projects (the “1998 Agreement”). (Third Am Compl. ¶ 24, Ex. 1, pp. 11-25.) As a result of the 1998 Agreement, Intersal relinquished its right to receive 75% of the coins and precious metals recovered from the QAR in exchange for promotion opportunities arising from the QAR “Project,” 4 as well as for assurances from DNCR that the El Salvador Permit would be renewed except for just cause. 5 (Third Am. Compl. ¶ 24, Ex. 1, pp. 11-25.) The 1998 Agreement 14. The 1998 Agreement described Intersal and DNCR as partners “to research, survey, search, recover, preserve, protect, conserve, curate, and promote the [QAR artifact] collection for the life of this Agreement.” (1998 Agreement at 2.) It provided in relevant part: 14. Subject to their rights under this Agreement, Intersal and MRI hereby assign to the Department, and the Department hereby accepts, on behalf of the People of North Carolina, the interests of Intersal and MRI in the title and ownership of QAR and its artifacts. **** 16. . . . Intersal shall have the exclusive right to make and market all commercial narrative (written, film, CD Rom, and/or video) accounts of project related activities undertaken by the Parties[.] 17. All Parties agree to cooperate in the making of a non commercial (sic) educational video and/or film documentary, or series of such documentaries . . . and there is no distribution or dissemination for sale of the said educational documentary without Intersal’s written permission[.] **** 4 The term “Project” is defined in the 1998 Agreement to mean “all survey, documentation, recovery, preservation, conservation, interpretation and exhibition activities related to any portion of the shipwreck of QAR or its artifacts.” (1998 Agreement ¶ 11.) 5 The 1998 Agreement provided that other artifacts, such as the vessel structure, ship’s fittings, weapons, personal effects, and non-precious cargo would be sent to a suitable facility, possibly in the Beaufort area, where the material could be curated for scientific study and public display. Intersal agreed to forego any right to receive the coins and precious metals recovered “in order that all QAR artifacts remain as one intact collection and in order to permit the Department to determine the ultimate disposition of the artifacts.” (1998 Agreement at 2.)  33. Subject to the provisions of Article 3 of Chapter 121 of the General Statutes of North Carolina and subchapter .04R of Title 7 of the North Carolina Administrative Code, the Department agrees to recognize Intersal’s and MRI’s efforts and participation in the QAR project as sufficient to satisfy any performance requirements associated with annual renewal of Intersal’s permits for . . . El Salvador . . . , and for the life of this Agreement, renewal of said permit[ ] cannot be denied without just cause. (1998 Agreement ¶¶ 14, 16, 17, 33.) 15. Almost fifteen years passed. While Intersal and the State undoubtedly hoped that the 1998 Agreement would keep them anchored, their relationship went off course. Multiple disputes regarding the 1998 Agreement arose, and both sides held their ground. Consequently, on 26 July 2013, Intersal filed a Petition for a Contested Case with the Office of Administrative Hearings (“OAH”), Intersal v. N.C. Dep’t of Cultural Resources, 13 DCR 15732 (the “Petition”). (Br. Supp. Pl’s Mot. Partial Summ. J., Ex 5, ECF No. 154.5.) 16. OAH ordered mediation in the matter, which resulted in a new agreement executed by Intersal and DNCR on 24 October 2013. 6 (Third Am. Compl., Ex. 1 [ “2013 Agreement”], ECF No. 159.1.) The 2013 Agreement 17. Among other things, the 2013 Agreement required Intersal to dismiss the Petition. (2013 Agreement ¶ 25.) Additionally, the parties expressly agreed that the 2013 Agreement superseded the 1998 Agreement. (2013 Agreement ¶ 1.) 6 Nautilus Productions, LLC (“Nautilus”) and its President, Rick Allen, are also parties to the 2013 Agreement. Nautilus was Intersal’s “QAR Video Designee” under the 1998 Agreement. (Third Am. Compl. ¶ 29.)  18. The 2013 Agreement again made clear that Intersal relinquished its right to share in any coins and precious metals recovered from the QAR site in exchange for a more streamlined renewal process for its El Salvador Permit and the rights to certain promotion opportunities with respect to the QAR Project. As for the latter, the 2013 Agreement contained requirements for the production and use of digital images and other media, and it established a means for Intersal to publish its terms of use to third parties before they were given access to the QAR Project. 19. Relevant paragraphs of the 2013 Agreement provided: 3. El Salvador Permit. In consideration for Intersal’s significant contributions toward the discovery of the QAR and continued cooperation and participation in the recovery, conservation, and promotion of the QAR, DCR agrees to continue to issue to Intersal an exploration and recovery permit for the shipwreck El Salvador. . . . DCR agrees to issue the permit through the year in which the QAR archaeology recovery phase is declared complete so long as the requirements contained in the permit are fulfilled. Subject to the provisions of Article 3 of Chapter 121 of the North Carolina General Statutes entitled, “Salvage of Abandoned Shipwrecks and Other Underwater Archaeological Sites,” and the North Carolina Administrative Code, DCR agrees to recognize Intersal’s efforts and participation in the QAR project as sufficient to satisfy any performance requirements associated with annual renewal of Intersal’s permit for the El Salvador[.] **** 9. Replicas to be Used in Exhibits, Scientific Study, or Educational Tools. Understanding that there may be times when original artifacts cannot be used, DCR may make, or have made, molds or otherwise reproduce, or have reproduced, any QAR artifacts of its choosing for use in museums or traveling exhibits, as educational props in its exhibits, museums, or laboratories, as scientific tools, or for scientific study. These replicas shall not be sold. **** 14. Commercial Documentaries. Intersal, through Nautilus, has documented approximately fifteen (15) years of underwater and other activities related to the QAR project. . . . Intersal shall have the exclusive right to produce a documentary film about the QAR project for licensing and sale. Intersal may partner with DCR if it chooses to do so[.] 15. Other Commercial Narrative. DCR and Intersal agree to collaborate in making other commercial narrative, such as, but not limited to, books and e-books, mini- and full-length documentaries, and video games. Any profit-sharing agreements shall be based on the amount of work contributed by each entity. If DCR and Intersal cannot reach an agreement on the sharing and production of any such commercial ventures that they propose to undertake, DCR and Intersal will refer the issues to a mutually selected, neutral arbitrator for binding arbitration, with arbitration to be concluded within three (3) months of selection of the neutral arbitrator. 16. Media and Access Passes. a. Procedure 1) DCR agrees to establish and maintain access to a website for the issuance of Media and Access Passes to QAR-project related artifacts and activities. 2) DCR shall manage the issuance of Media and Access passes after receiving access requests from third parties via the website. 3) The website shall be the primary means of access for requests, and shall include, at a minimum: (a) An Intersal terms of use agreement, to be electronically submitted; (b) The QAR media fact sheet; and (c) Links to DCR, Intersal, and Nautilus Productions websites. 4) Upon electronic submission of requests and terms of use, if applicable, electronic notice shall be sent to DCR and Intersal or its designee showing acceptance or nonacceptance of the terms of use.  5) Intersal shall bear the sole responsibility for managing and enforcing its terms of use. 6) For requests for access that are not received through the website, DCR shall provide the requestor with substantially the same information contained on the website. b. Non-commercial Media. 1) All non-commercial digital media, regardless of producing entity, shall bear a time code stamp, and watermark (or bug) of Nautilus and/or DCR, as well as a link to DCR, Intersal, and Nautilus websites, to be clearly and visibly displayed at the bottom of any web page on which the digital media is being displayed. 2) DCR agrees to display non-commercial digital media only on DCR’s website. c. Termination. This Media and Access Pass section shall terminate after the 5th anniversary of the signing of this Agreement. After five (5) years, DCR and Intersal may agree to extend this provision by mutual written consent. 17. Public Records. Nothing in this Agreement shall prevent DCR from making records available to the public pursuant to North Carolina General Statutes Chapters 121 and 132, or any other applicable State or federal law or rule related to the inspection of public records. 18. Records Management. During the recovery phase of the QAR project, DCR and Intersal agree to make available to each other records created or collected in relation to the QAR project. . . . Within one (1) year after the completion of the recovery phase, Intersal shall allow DCR to accession duplicate or original records that were created or collected by Intersal during the project. . . . These materials shall become public records curated by DCR. All digital media provided by Intersal under the terms of this paragraph shall include a time code stamp and watermarks (or bugs)[.] (2013 Agreement, ¶¶ 3, 6, 9, 14, 15, 16(a), 16(b), 17, 18.)  20. Unfortunately, any harmony achieved by the 2013 Agreement did not last, and it was not long before disagreements again arose between Intersal and DNCR. The claims in this action turn on whether Defendants have breached Intersal’s rights as specified in the 2013 Agreement. Events Giving Rise to Alleged Breaches of 2013 Agreement 21. On 28 October 2013, less than a week after the 2013 Agreement was executed, DNCR participated with the United States Coast Guard in raising five cannons from the seabed at the QAR site. (Third Am. Compl. ¶ 35A.) Although certain members of the media were informed of the event, Intersal alleges that it was not informed. Intersal further alleges that, as a result, it was denied an opportunity to video the event for a planned documentary film pursuant to Paragraph 14 of the 2013 Agreement, as well as the chance to collaborate with DNCR to use the footage for other “commercial narratives” pursuant to Paragraph 15 of the same agreement. 22. In addition, as discussed below, Intersal contends that because it was unaware of the event before DNCR allowed third parties to access the site, it lost the opportunity to impose a terms of use agreement that would have governed the ability of the third parties to take and use photographs and video of the site. Intersal complains that DNCR’s inaction resulted in the U.S. Coast Guard taking and publishing footage of the event on the internet. (Third Am. Compl. ¶ 35A, ECF No. 107; see also Pl.’s Br. Supp. Mot. Partial Summ. J., Ex. 1 [“Meyer Dep.”] 177:11-25, ECF No. 154.1; Coast Guard images, ECF No. 154.17.)  23. A month later, on 9 December 2013, Intersal submitted its terms of use agreement to DNCR for posting on the website the parties had agreed would be used to issue media and access passes. DNCR questioned the submission and proposed that representatives from both Intersal and DNCR meet to discuss the terms in mid- January 2014. (Pl.’s Mot. Partial Summ. J., Ex. 44, ECF No. 154.44.) On 13 January 2014, DNCR e-mailed Intersal to arrange the meeting. (Pl.’s Mot. Partial Summ. J., Ex. 45, ECF No. 154.45.) About a week later, Intersal responded, agreeing to meet and requesting that DNCR provide their proposed revisions to the terms beforehand. (Pl.’s Mot. Partial Summ. J., Ex. 45.) In reply, DNCR sent Intersal a proposed fact sheet, but it did not propose any revisions to the terms of use agreement that Intersal provided. (Pl.’s Mot. Partial. Summ. J., Ex. 46, ECF No. 154.46.) 24. When the terms of use agreement was still not in place by 9 June 2014, Intersal submitted a second version to DNCR. Intersal represented that the language of this version was taken “verbatim” from the State’s Division of Tourism, Film and Sports Development website, changing only the names. (Pl.’s Mot. Partial Summ. J., Ex. 47, ECF No. 154.47.) But DNCR did not post or disseminate the terms of use agreement because it did not agree with the content. (Pl.’s Mot. Partial Summ. J., Ex. 51 [“Masters’ Dep.”] at 116:12-13, ECF No. 154.51; Defs.’ Mot. Summ. J., Ex. 14, ECF No. 159.14.) Indeed, to date DNCR has not posted an Intersal terms of use agreement pursuant to Paragraph 16(a)(3)(a) of the 2013 Agreement.  25. In the days following the QAR cannon-raising event, DNCR provided media outlets a Flickr 7 link for use to access un-watermarked images of the event. (ECF No. 154.14; ECF No. 154.15; Pl.’s Br. Supp. Mot. Partial Summ. J., Ex. 7 [“Cox Dep.”] 32:15-33:20, 38:2-41:21, ECF No. 154.7; Meyer Dep. 174:7-177:10.) 26. Both before and after the 2013 Agreement, Defendants posted QAR digital media to websites other than DNCR’s own website. Much of the digital media was posted and continues to be displayed without watermarks, time code stamps, or website links. (ECF Nos. 154.21, 154.25, 154.27-.33.) 27. For example, in October 2014, DNCR provided images of the cannon raising event to then-Governor Pat McCrory’s office via email, (ECF No. 154.23), and the Governor’s office posted the images on its Facebook page, (ECF No. 154.22). 28. In January 2014, both the Smithsonian and National Geographic España magazines published QAR digital media supplied by DNCR in response to a public records request. Intersal complains that it was not afforded an opportunity to collaborate with the State on this “commercial narrative” in violation of paragraph 15 of the 1998 Agreement. (Third Am. Compl. ¶ 35B; Pl.’s Br. Supp. Mot. Summ. J. Ex. 14, ECF Nos. 154.14-15.) 29. On two days in September 2015, Defendants allowed the nonprofit Friends of the Queen Anne’s Revenge (“FoQAR”) and a radio show host and crew to dive the site and collect footage of the QAR. Because there was no agreement on Intersal’s terms, however, DNCR did not provide a terms of use agreement to FoQAR 7 Flickr is an online photo management and sharing application. See www.flickr.com (last visited 23 February 2023). or to the radio host and crew. Intersal complains that it was not invited to collaborate with DNCR on this event. (Third Am. Compl. ¶ 35G.) On 28 October 2015, FoQAR allegedly posted video footage from this dive to Facebook without watermarks, time code stamps, or website links. (Third Am. Compl. ¶ 35H.) 30. Images of the QAR Project, including photographs of recovered cannons, were published on YouTube on 22 January 2019, (ECF No. 154.20). The record does not indicate who produced or posted the photographs. At least two photographs of QAR cannons that appear to have been produced by the U.S. Coast Guard are available for the public to purchase from third parties online, without compensating either the State or Intersal. (ECF No. 154.19.) 31. Defendants have charged admission to State facilities where they have displayed a traveling exhibit of QAR Project artifacts. Intersal complains that Defendants have done so without collaborating or sharing profits with Intersal. (Third Am. Compl. ¶ 35J; Pl.’s Br. Resp. Defs.’ Mot. Summ. J. 8-9.) Defendants respond that these exhibitions are not “commercial narratives” from which they have profited and that Intersal is not entitled to any portion of their museum admission fees. (Defs.’ Answer to Pl.’s Third Am. Compl. ¶ 35J, Defs.’ Br. Supp. Mot. Summ. J. 6.) 32. In 2018, authors Mark Wilde-Ramsing and Linda Carnes-McNaughton published Blackbeard’s Sunken Prize, a book about the QAR that contains images of recovered QAR artifacts. (Pl.’s Mot. Partial Summ. J., Ex. 61, ECF No. 154.61.) Wilde-Ramsing is the former State Deputy Archeologist for DNCR. (Pl.’s Mot. Partial Summ. J., Ex. 34 [“Wilde-Ramsing Dep.”] at 8:3-5, ECF No. 154.34.) 33. The authors initially reached out to two publishing companies, but after meeting with DNCR, the authors chose UNC Press, a State entity, to publish the book. (Pl.’s Mot. Partial Summ. J., Exs. 40, 41, 62, 63, ECF Nos. 154.40, 154.41, 154.62, 154.63; Wilde-Ramsing Dep. 58:3-59:9.) 34. Wilde-Ramsing and Carnes-McNaughton received an advance to write the book, (Wilde-Ramsing Dep. at 74:6-12), and they had an agreement with the publisher to receive royalties from sales of the book, as well as a share of net proceeds from the sale or licensing of subsidiary rights. (Pl.s’ Mot. Partial Summ. J., Ex. 65 at 4-5, ECF No. 154.65.) 35. Intersal observes that the book is commercially available. It contends that although Defendants collaborated with the book’s authors, Defendants did not collaborate or share profits with Intersal with respect to this “commercial narrative.” 8 36. Defendants respond that they did not provide any funding for Blackbeard’s Sunken Prize, (Wilde-Ramsing Dep. at 65:8-66:25), did not write any content for the book, (Wilde-Ramsing Dep at 59:15-59:20), and did not help pick any 8 Intersal argues that this failure was intentional. In support of its allegation, Intersal provides evidence that Wilde-Ramsing initially proposed the book to DNCR in early 2015 and described the book as “targeted for general audiences.” (Pl’s Mot. Partial Summ. J., Ex. 61, ECF No. 154.61.) However, the description was later changed to “an educational book targeting the general audiences” in a proposal sent by the authors to DNCR, in anticipation of a meeting about the book that was to take place on 26 February 2015. (Pl.’s Mot. Partial Summ. J., Ex. 62, ECF No. 154.62.) The agenda for the meeting included a discussion of the “[d]efinition of ‘commercial narrative’ [1998 & 2013 MOA with Intersal and MRI].” (Pl’s Mot. Partial Summ. J., Ex. 62.) of the images used in the book, (Wilde-Ramsing Dep. at 60:12-60:17). However, DNCR “suggest[ed] that UNC Press might be a good publisher,” (Wilde-Ramsing Dep. at 58:3-59:23), and DNCR informed Wilde-Ramsing that unwatermarked digital images of the QAR were available through a public records request. (Wilde-Ramsing Dep. at 59:23-60:2, 61:11-17.) 37. Finally, in June 2013, FoQAR contracted with Think Out Loud Productions (a/k/a Shark Brothers), a commercial documentary maker, to make a multi-part documentary series about the QAR. On the same date that it executed the agreement with Think Out Loud Productions, FoQAR also executed an agreement with DNCR assigning all rights in the documentary series to DNCR and giving DNCR the “exclusive right to broadcast and distribute” the series. (Pl.’s Mot. Partial Summ. J., Exs. 52-53, ECF Nos. 154.52, 154.53.) 38. The parties dispute how far production of the documentary series had progressed at the time the 2013 Agreement was reached, but they agree that the series had not been completed. They further agree that this series is not mentioned in the 2013 Agreement. 9 (Pl.’s Mot. Partial Summ. J., Ex. 54, ECF No. 154.54) (email from October 2014 sent to DNCR employee Claggett from Think Out Loud Productions regarding “approval for the Blackbeard and Queen Anne’s Revenge documentary”); (Pl.’s Mot. Partial Summ. J., Ex. 55, ECF No. 154.55) (November 2014 9 DNCR contends that the agreement between Think Out Loud Productions and FoQAR specifies that all filming (“field production”) would be completed by June 2013, well before the 2013 Agreement was executed. (Pl.’s Mot. Partial Summ. J., Ex. 52 at 2.) DNCR contends that any activity on the project that occurred after the 2013 Agreement was limited to post- production work. (Defs.’ Br. Resp. Pl.’s Mot. Partial Summ. J. 38.) emails between Claggett and Think Out Loud Productions regarding the same); (Pl.’s Mot. Partial Summ. J., Ex. 9 [“Claggett Dep."], at 63:10-64:5, ECF No. 154.9.) 39. Moreover, the parties dispute whether the documentary series is a commercial narrative requiring DNCR to collaborate with Intersal pursuant to Paragraph 15 of the 2013 Agreement. There is some evidence that the series was intended to be used for educational purposes but that it was never used that way. (Pl.’s Mot. Partial Summ. J. at 28-29, Ex. 57 [“Morris Dep.”] at 39:7-23, 57:9-58:5, ECF No. 154.57.) 40. Portions of the series containing DCR’s watermark (but without time- code stamps or links to DCR, Intersal, and Nautilus websites) were later posted on YouTube rather than to DCR’s own website. 10 Intersal contends that even if this content is considered “non-commercial,” posting the video in this manner violated Paragraph 16(b) of the 2013 Agreement. Intersal further argues that the series constitutes a documentary film produced in violation of the exclusive right it was afforded by Paragraph 14 of the 2013 Agreement. Renewal of the El Salvador Permit 41. In early November 2015, Intersal sought renewal of its El Salvador Permit. (Third Am. Compl. ¶ 40.) After some administrative wrangling, 11 on 1 10 Episodes of the multi-part documentary series are still available on YouTube. See e.g., Documentary Episode 7 of 7: Blackbeard and the Queen Anne’s Revenge – Shark Brothers Multimedia, https://www.youtube.com/watch?v=QGFsd_UvAjQ. 11 On 3 November 2015, Intersal received a Notice of Termination of Permit. The reason given for termination was Intersal’s failure to submit a request for renewal prior to expiration of the existing permit. (Third Am. Compl. ¶ 40; Br. Response Defs.’ Mot. Summ. J., Ex. 13, December 2015, Intersal received a Notice of Termination of Permit for the following reasons: (1) “Intersal failed to fulfill the requirements set forth in [the permit]; and (2) Issuance of further renewal permits is no longer deemed to be in the best interest of the State.” (Defs.’ Mot. Summ. J., Ex. 22, ECF No. 159.22.) 42. Intersal contends that, by denying the permit, the State breached its promise in the 2013 Agreement to waive the performance requirements associated with annual renewal. (Br. Response Defs.’ Mot. Summ. J., Ex. 14 [“Claggett Dep.”] at 152:14-153:3, ECF No. 173.14) (agreeing that the “real basis [for denying the permit] was [Intersal’s] failure to make substantial progress towards finding the El Salvador.”) 43. In addition, although the State had been aware for years that the Kingdom of Spain claimed to own the El Salvador, it is undisputed that in November 2015, DNCR’s counsel contacted Spain to determine that country’s position regarding renewal of the permit. In response, on 30 November 2015, Spain’s counsel sent a letter to DNCR restating Spain’s position that it claimed ownership of the El Salvador. (Pl.s’ Br. Resp. Defs.’ Mot. Summ. J., Ex. 16 [“Howell Dep.”] at 20:17-23, ECF No. 173.16; Ex. 14 [“Claggett Dep.”] at 170:1-7.) Intersal contends that DNCR purposefully solicited a statement from the Kingdom of Spain as a pretext to support DNCR’s conclusion that renewal of Intersal’s permit was not in the State’s best interest. (Third Am. Compl. ¶¶ 42, 47 n.14.) ECF No. 173.13.) However, after Intersal notified DNCR that it had submitted a request before the deadline, DCR withdrew its denial. (Pl.s’ Br. Resp. Defs.’ Mot. Summ. J. 23.)  44. After the El Salvador Permit was terminated, Intersal filed a Petition for a Contested Case with the OAH. (Pl.’s Br. Supp. Mot. Partial Summ. J., Ex. 5, ECF No. 154.5.) On 27 May 2016, Intersal’s case was dismissed, and Intersal appealed to the Superior Court of Wake County. (Third Am. Compl. ¶ 49; Defs’ Br. Supp. Mot. Dismiss and Mot. Strike Pl.’s Second Am. Compl., Ex. A, ECF No. 57.) On 7 November 2016, citing N.C.G.S. § 121-25(a), the Court issued a decision upholding termination of the El Salvador Permit because it was not in the “best interest of the State.” (Intersal, Inc. v. N.C. Dep’t of Cult’l Resources, 16 CVS 8149; Defs’ Br. Supp. Mot. Dismiss and Mot. Strike Pl.’s Second Am. Compl., Ex. B.) III. PROCEDURAL BACKGROUND 45. Intersal initiated this action on 27 July 2015. (Compl. and Mot. for Rule 65 Relief, ECF No. 1.) On 10 September 2015, the case was designated a mandatory complex business case, (Designation Order, ECF No. 5). 46. On 20 February 2017, this Court granted Intersal’s Amended Motion for Leave to File Second Amended Complaint, (ECF No. 43). The Second Amended Complaint asserted breach of contract claims against Defendants under both the 1998 and 2013 Agreements. (Second Am. Compl., ECF No. 44.) 47. Thereafter, on 30 March 2017, Defendants moved to dismiss the Second Amended Complaint. (Answer, Defenses, and Mot. Dismiss Pl.’s Second Am. Compl., and Mot. Strike, ECF No. 85.) After considering the motion, on 13 October 2017, Business Court Judge Gregory P. McGuire dismissed with prejudice: (1) Intersal’s breach of contract claims under the 1998 Agreement, and (2) Intersal’s breach of contract claims under the 2013 Agreement resulting from DNCR’s refusal to renew the El Salvador Permit. The Court dismissed without prejudice Intersal’s breach of contract claim for alleged violations of Intersal’s digital media and promotion opportunity rights in the 2013 Agreement. Intersal, Inc. v. Hamilton, 2017 NCBC LEXIS 97, at *37-38 (N.C. Super. Ct. Oct. 12, 2017). 48. On 1 June 2018, Intersal filed a petition for writ of certiorari to the Supreme Court of North Carolina seeking review of Judge McGuire’s decision. 12 The Supreme Court allowed the petition on 5 December 2019. Intersal v. Hamilton, 373 N.C. 89, 97 (2019). 49. Subsequently, on 1 November 2019, the Supreme Court issued a decision determining that this Court: (1) properly dismissed Intersal’s breach of contract claims arising from the 1998 Agreement; (2) erred when it dismissed Intersal’s breach of contract claim with respect to its digital media rights and promotion opportunities for lack of subject matter jurisdiction (failure to exhaust administrative remedies); and (3) erred by dismissing on res judicata grounds Intersal’s breach of contract claim against the Defendants arising from Defendants’ failure to renew Intersal’s El Salvador Permit. Id. at 110-111. The case was remanded to this Court for further proceedings. 12 On 9 November 2017, Intersal filed a Notice of Appeal to the North Carolina Court of Appeals which, by statute, was the incorrect judicial body to hear the appeal. (Notice of Appeal, ECF No. 86. See N.C.G.S. § 7A–27(a)(2).) As a result, on 10 April 2018, Defendants filed a Motion to Dismiss Intersal’s Appeal, (ECF No. 90), which this Court granted, and the original appeal was dismissed on 3 May 2018, (Order Granting Defs.’ Mot. Dismiss Appeal, ECF No. 96). The Supreme Court of North Carolina heard the case after issuing a writ of certiorari.  50. On 31 January 2020, Intersal filed its Third Amended Complaint to reflect the Supreme Court’s ruling. (Third Am. Compl., ECF No. 106.) Defendants responded with defenses challenging, among other things, the enforceability of the 2013 Agreement. (Defs.’ Answer to Pl.’s Third Am. Compl., ECF No. 107.) 51. All discovery is now complete, and before the Court are the parties’ cross-motions for summary judgment. Intersal has affirmatively moved for partial summary judgment, seeking (1) to establish as a matter of law that Defendants’ second and ninth affirmative defenses are barred by the law of the case doctrine, judicial estoppel, and quasi-estoppel, and (2) a declaratory judgment that Defendants have breached Paragraphs 14, 15, and 16 of the 2013 Agreement (“Intersal’s Motion”). (Pl.’s Mot. Partial Summ. J., ECF No. 153.) Conversely, Defendants move for summary judgment in their favor on both of Intersal’s claims for breach of contract (“Defendants’ Motion”; together, the “Motions”). (Defs.’ Mot. Summ. J., ECF No. 160.) 52. With the benefit of full briefing and a hearing on 6 January 2022 during which all parties were heard through counsel, the cross-motions are now ripe for determination. 53. The Court, having considered the Motions, the briefs filed by the parties, the arguments of counsel, and other relevant matters of record, concludes that the Motions shall be GRANTED in part and DENIED in part as specified below. IV. LEGAL STANDARD 54. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56(c). “An issue is ‘genuine’ if it can be proven by substantial evidence and a fact is ‘material’ if it would constitute or irrevocably establish any material element of a claim or a defense.” Lowe v. Bradford, 305 N.C. 366, 369 (1982). 55. In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party, taking its evidence as true and drawing inferences in its favor. See, e.g., In re Will of Jones, 362 N.C. 569, 573 (2008). 56. Affirmative summary judgment on a party’s own claims for relief carries a greater burden. Brooks v. Mount Airy Rainbow Farms Ctr., Inc., 48 N.C. App. 726, 728 (1980). The moving party “must show that there are no genuine issues of fact, that there are no gaps in his proof, that no inferences inconsistent with his recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury.” Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 721 (1985). Therefore, it is “rarely . . . proper to enter summary judgment in favor of the party having the burden of proof.” Blackwell v. Massey, 69 N.C. App. 240, 243 (1984); see Banc of Am. Merch. Servs., LLC v. Arby’s Rest. Grp., Inc., 2021 NCBC LEXIS 61, at *10-11 (N.C. Super. Ct. June 30, 2021). 57. In any case, when ruling on a motion for summary judgment, a trial court may not resolve issues of fact but must deny the motion if there is any genuine issue of material fact. Singleton v. Stewart, 280 N.C. 460, 464 (1972).  V. ANALYSIS A. Enforceability of the 2013 Agreement 58. Defendants argue that Intersal’s two claims for breach of contract fail because there is no contract. Without a meeting of the minds on all material terms, Defendants contend that the 2013 Agreement is unenforceable. (Defs.’ Br. Supp. Mot. Summ. J. 9, 19-23, ECF No. 161.) 59. Citing the law of the case doctrine and principles of estoppel, Intersal responds that whether the 2013 Agreement is enforceable is a question that has already been raised and answered on appeal. Intersal contends that Defendants endorsed the enforceability of the 2013 Agreement in their arguments to the Supreme Court, and that the Supreme Court, relying on that endorsement, has determined that the 2013 Agreement is valid and enforceable. Intersal contends that this issue has been finally decided and that no new evidence has been unearthed in discovery that could serve as the basis for Defendants to resurrect their enforceability challenge. (Pl.’s Br. Resp. Defs.’ Mot. Summ. J. 1-4, ECF 174.) 60. The law of the case doctrine provides that “when an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case . . . in subsequent proceedings in the trial court.” Bank of Am., N.