Copyright row over Blackbeard’s Pirate Ship goes to U.S. Supreme Court

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Our Trainee, Danielle Bragg, takes a look at the copyright dispute.

The wreckage was discovered in 1996 and a company called Nautilus Productions was hired to document its recovery.  Nautilus, run by Frederick Allen, had ensured that the footage of the salvage operation was protected by copyright.  In 2013, a copyright dispute arose against the State of North Carolina’s Department of Natural and Cultural Resources (the “State”) after they began posting the images online.  This action was settled out of court for $15,000 and neither side admitted wrongdoing.

However, following this, documentary materials were uploaded to YouTube and a state agency website and a photo was used in a newsletter.  In 2015, the State enacted a statute, known as “Blackbeard’s Law”, in order that the salvage effort could be converted to public record.  Nautilus argued the 2015 law should be declared unconstitutional.

Nautilus and Allen sued the State under the Copyright Remedy Clarification Act 1990, which allows private parties to sue states for violations of federal copyright law. The lower court initially found North Carolina could be sued under the 1990 Act.

The State appealed, claiming immunity from prosecution under the 11th Amendment of the Constitution, through a form of protection known as sovereign immunity.  The 4th U.S. Circuit Court of Appeals, based in Virginia, ruled last year that the State and its officials were immune from such claims.  It found that Congress exceeded its powers in passing the 1990 Act, as an attempt to override state sovereign immunity in copyright disputes.  The case will now be heard by the Supreme Court.

In his petition to the Supreme Court, Allen argues that state waived sovereign immunity over intellectual property rights when they ratified the Constitution, which says Congress can grant patents and copyrights. Allen said states are flagrantly infringing authors’ copyrights and invoking sovereign immunity as a way to avoid paying damages. If the 4th Circuit’s decision is not overturned, Allen said in a legal filing, “creators of original expression will be left without remedy when states trample their federal copyrights.”