SCOTUS will take on copyright case about Blackbeard’s pirate ship

The U.S. Supreme Court is bringing a North Carolina copyright case on deck in October to settle a dispute about footage of the Blackbeard pirate ship, Queen Anne’s Revenge, which ran aground in Beaufort in 1718 and was discovered in 1996.

Rick Allen’s Nautilus Productions sued the state of North Carolina for posting its photos and videos of the ship online without permission. The video production company was documenting the salvaging of the shipwreck and Allen had registered the work with the U.S. Copyright Office. At the center of the dispute is whether federal law protects the copyrighted work from infringement and whether states are immune from certain copyright infringement claims under the 11th amendment to the Constitution.

The state initially paid Nautilus a $15,000 settlement in 2013 and agreed not to use the copyrighted material going forward, but eventually began using it again and subsequently passed “Blackbeard’s Law” which converted the work to public record, according to the court documents.

A lower court sided with North Carolina that it was protected from certain private copyright infringement claims under the 11th amendment.

The U.S. Supreme Court petition sheds light on what was described as a frequent problem before Congress passed the Copyright Clarification Remedy Act (CRCA): “states had been flagrantly copying works and threatening to copy others, claiming sovereign immunity as a defense.”

“Those most vulnerable to state copyright infringement are small businesses,” the petition states. “Because small businesses lack the resources necessary to fight state actors effectively and typically need promise of recompense for past infringement before initiating litigation, they currently find themselves largely helpless in the face of state infringement. Absent adequate remedies, authors, performers, composers, and producers will lose their incentive to create, at the expense of the economy and the arts.”

The document argues that the North Carolina infringement at issue “is but the protruding tip of a much larger iceberg of state infringement nationwide” and it presents the best vehicle for the high court to make a definitive decision about the questions before it.

“Not only has the State here infringed Nautilus’s copyrights in the Works, but it frontally attacked the federal copyrights by effectively dragging the Works into the public, unprotected domain under auspices of state law; the upshot very clearly and designedly eviscerates federal copyrights. Such conduct by States profoundly imperils federal protections that are meant to be uniform nationwide and epitomizes what Congress sought to protect against when enacting the CRCA.”