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Arrr! Pirate Blackbeard lawsuit with NC ties bound for US Supreme Court

In 1718, the notorious pirate Blackbeard ran aground off the coast of Beaufort, abandoning his flagship Queen Anne’s Revenge to legend and the murky deep.

But in the 23 years since its discovery, the precious artifact has done more than stoke North Carolina’s pirate mania. It has also sparked a federal lawsuit over pictures and video footage taken of the fabled ship’s recovery and posted on the Internet.

This week, that case wound its way into the U.S. Supreme Court, where the justices will decide whether North Carolina’s government conspired to take those images without compensating the videographer or had the right to circulate them for the public good.

“We are obviously gratified that the United States Supreme Court has agreed to hear our case,” said Fayetteville videographer Rick Allen. “We look forward to making our case to the Supreme Court as to why it was within Congress’s constitutional authority to hold states liable for their acts of copyright infringement.”

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Blackbeard, played by Carl Cannon of Beaufort, and his nemesis, Lt. Robert Maynard, played by John Collamore of Virginia Martha Quillin The News & Observer

Perhaps the world’s best-known pirate, Edward Teach ranks among North Carolina’s most storied outlaws, claimed by coastal communities from Bath to Ocracoke. Better known as Blackbeard, he captured a French vessel in the early 18th century and christened it the Queen Anne’s Revenge, outfitting it with 40 guns. But his piracy career ended soon after, captured and killed by the British at Ocracoke Island.

Allen brought the case in 2015 on behalf of his Nautilus Productions, arguing that various state officials and the nonprofit Friends of the Queen Anne’s Revenge conspired to steal copyrighted video and photographs. For nearly 20 years, Allen noted in his lawsuit, Nautilus has documented the recovery of underwater artifacts, making live educational webcasts and videos for public display.

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A fully restored cannonball taken from the Queen Anne’s Revenge is shown at a conservation lab in Greenville. Some artifacts can take years to clean and restore. The archaeologists who have brought up literally tons artifacts from Blackbeard’s flagship are opening up the warehouses and conservation labs where the artifacts are being treated, examined and preserved to the public for guided tours. The tours are slated to start Tuesday. N&O file photo cseward@newsobserver.com

In 2013, the suit said, the state Department of Natural and Cultural Resources uploaded some of that copyrighted video without Nautilus consent, which brought on a settlement agreement. In it, the state paid Nautilus $15,000 and was allowed to keep some watermarked and time-stamped materials for research purposes only, including more than 80 hours of video footage, according to the lawsuit.

Allen alleges five instances where that footage was uploaded to YouTube and another time when it got posted on the department’s webpage.

“Plaintiffs issued takedown notices in an effort to ameliorate the damage from these unauthorized infringements,” the suit said. “Defendants, concerned about their own liability ... developed a plan to steal plaintiffs’ copyright assets.”

State officials then created and lobbied for a new statute stating “photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record.” Then-Gov. Pat McCrory signed it into law in 2015.

Last year, attorneys for North Carolina argued Allen’s case should be dismissed because the state is immune from such complaints and that it posted small snippets of Blackbeard’s wrecked ship for the sake of the public good. A lower court rejected the state’s immunity argument, but the U.S. Court of Appeals reversed that decision in July.

“Accordingly,” the court wrote, “we conclude that Allen and Nautilus’s copyright claims against the North Carolina officials in their individual capacities are precluded by qualified immunity.”

The Supreme Court marks the case’s rise to the nation’s highest legal authority. A spokeswoman for N.C. Attorney General Josh Stein said his office looks forward to defending the state.

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Josh Shaffer covers Wake County and federal courts. He has been a reporter for The News & Observer since 2004 and previously wrote a column about unusual people and places.
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