NC Sets Sail for the Supreme Court: “Blackbeard’s Law” and Modern Day Piracy

By: Killoran Long

https://pixabay.com/photos/naval-battle-ship-sailing-vessel-3195409/ At the beginning of this year, a North Carolina videographer escalated a copyright fight with the State of North Carolina to the U.S. Supreme Court. Rick Allen, co-owner of Fayetteville based Nautilus Productions, LLC, is alleging the State of North Carolina and the N.C. Department of Natural and Cultural Resources are guilty of copyright infringement regarding images related to the recovery of the Queen Anne’s Revenge.

The Queen Anne’s Revenge (“QAR”) was Blackbeard’s flagship vessel and was commandeered and then used by the infamous English pirate to conduct his activities during the early 1700s. While Blackbeard operated from the eastern coast of the American colonies, down to the West Indies, he is particularly notorious throughout North Carolina history for his exploits along the coast. It was believed that Blackbeard ran the QAR aground off the coast of Beaufort, North Carolina in the summer of 1718, which was confirmed in 1996 when a private research firm found the wreckage.

Since the 1996 confirmation, Allen’s Nautilus Productions has spent almost two decades documenting the retrieval of Blackbeard’s QAR. Nautilus Productions’ website describes their role as “the exclusive owner and licensor of footage from […]the [QAR recovery]” and that the Nautilus Productions staff has been the “official video crew for the study and recovery of […] Blackbeard’s ship.”

In 2015, Nautilus Productions filed a Federal lawsuit in the U.S. District Court for the Eastern District of North Carolina against then-governor Pat McCrory, the State of North Carolina, and others. The initial lawsuit filed concerned the recently passed “Blackbeard’s Law” which makes public “all photographs, video records, or other documentary materials of a derelict vessel or shipwreck,” and “relics, artifacts or historic materials” in the custody of the State or a state agency. Nautilus Productions alleged in its suit that “Blackbeard’s Law” is unconstitutional legislation, that the defendants have infringed copyrights owned and licensed by Nautilus Productions, violated other federal laws, and engaged in unfair and deceptive trade practices”.

The District Court ruled in favor of Nautilus Productions in March 2017, with the State of North Carolina appealing a year later to the U.S. 4th Circuit Court of Appeals. North Carolina argued that the state has “qualified and legislative immunity and therefore cannot be sued by private parties for copyright infringement.” Allen and Nautilus Productions, however, maintain that they have the to sue under the Copyright Remedy Clarification Act of 1990, which amended Federal copyright law to provide “ any State, State instrumentality, or officer or employee of the State or State instrumentality is liable to the same extent as any nongovernmental entity for: (1) copyright infringement; (2) importation of phonorecord copies without the authority of the copyright owner; and (3) infringement of exclusive rights in mask works.” The 1990 Act also “[d]enies sovereign immunity to any State for such violations and provides the same remedies as are available against other private or public entities, including attorney’s fees.”

Unfortunately for Nautilus Productions, the Court of Appeals ruled in favor of the State, which led to Nautilus Productions filing a petition for a writ of certiorari with the U.S. Supreme Court in January 2019. Whether or not the Supreme Court takes up the case is still yet to be determined, however, a decision should be made this spring whether the highest court will tackle this modern-day piracy.

Killoran Long is a second-year law student at Wake Forest University School of Law and is the Business Law Program Fellow for the 2018-2019 school year. She is a graduate of the University of South Carolina where she earned her degree in Political Science. Before returning to law school, she spent over five years working in government relations in Washington. D.C.