Politics & Government

How Blackbeard’s ship and a diver with an ‘iron hand’ ended up at the Supreme Court

In January 2011, Rick Allen lost his left arm below the elbow and suffered second- and third-degree burns after a scuba tank exploded and caught fire in his garage. He spent three months in the hospital, two of them in a medically induced coma.

But 10 months after the accident, Allen — the owner of Fayetteville-based Nautilus Productions — was back in the water, diving on the pirate Blackbeard’s ship.

The Queen Anne’s Revenge shipwrecked in 1718 near modern-day Beaufort. Allen has made more than 200 dives and put in more than 200 hours photographing and shooting video of the shipwreck.

On Tuesday, Allen was at the U.S. Supreme Court as his lawyers argued that Allen and Nautilus Productions should be able to sue the state of North Carolina for copyright infringement.

“It’s a wonderful irony because you’ve got one of the most famous pirates in history, Blackbeard,” Allen said outside the court. “We’re fighting a case over video piracy, and I also have an iron hand. How are you going to top that?”

The arguments before the court centered on the issue of state sovereign immunity, which means states cannot be made to pay damages for violations of federal law. There are several limited exceptions, and Allen’s lawyer Derek Shaffer argued that the 1990 Copyright Remedy Clarification Act created an opening.

“When states infringe the exclusive federal rights that Congress is charged with securing, Congress can make states pay for doing so,” Shaffer said to open his remarks before the court.

Allen’s Nautilus Productions, which dived at the site from 1997 to 2015, registered its work with the U.S. Copyright Office. But North Carolina used some of the copyrighted images in 2013, leading to a $15,000 settlement between the company and the state and an agreement not to infringe on the copyright again.

But the state did, using images and video on the Department of Natural and Cultural Resources website and in a newsletter. Ryan Park, deputy solicitor general of North Carolina, argued that the uses could reasonably be allowed under the agreement, were not willful violations of copyright law and were of an educational nature.

The photos did not contain the agreed-upon watermarks or timestamps, according to the court arguments.

“It would be intentional if the state had not explicitly bargained for a provision that says we can use Mr. Allen’s images for non-commercial purposes,” Park said, acknowledging “perhaps an aggressive reading of fair use.”

He said state sovereign immunity could be removed only if due process rights were violated — and they haven’t been in this case.

Some of the justices seemed concerned about the possible implications of allowing states to violate copyright law without any ability of the right holder to sue.

Justice Stephen Breyer, a liberal member of the court, asked what could stop California from showing first-run movies, such as Marvel movies, on a state website and charging money if states could not be held to account for violating copyright law. Justice Ruth Bader Ginsburg, another member of the court’s liberal bloc, asked why states could enforce copyright law on copyrights it holds, but not be held to the same standard.

“There’s something unseemly about a state saying, yes, we can hold copyrights and we can can hold infringers to account to us, but we can infringe to our heart’s content and be immune from any compensatory damages,” Ginsburg said.

Park, in his first argument before the court, argued that there are ways to deal with copyright violations other than allowing states to be sued. He said that the Department of Natural and Cultural Resources operates on a “shoestring budget” and the ability to recover the 40% of the Queen Anne’s Revenge that remains submerged could be imperiled if the state had to pay a large settlement.

He cited large damage awards given out by juries across the country.

“The important issue from a state’s perspective is ensuring that the state is able to continue its important work recovering the Queen Anne’s Revenge shipwreck,” Park said after court.

If the Supreme Court rules in Allen’s favor and allows states to be sued for copyright violations, then Allen is likely to be back in court asking for damages.

“If all goes well, we’ll probably be at this a while longer,” said Allen, who filed his first case in 2013. “If I win, this is going to make a big difference for an awful lot of people, like other artists, other composers, writers, software developers. We don’t have a way to handle copyright infringement by states right now. If I do well, then we will all have a way to address that in the courts.”

Allen said the shipwreck is only 24 to 28 feet under water, depending on the tide. But it remains buried under 4 to 6 feet of sand, and the visibility in that area is very low. He said there’s a lot of currents coming in and out of the area, which is likely why Blackbeard ran aground on a sandbar.

Outside of the court, Allen’s niece, Christina Burnham, held a large pirate flag in support of her uncle.

“I don’t think anybody really expects that they’re going to be going to the Supreme Court, much less arguing over a pirate ship and pirating video and one of the most infamous pirates of all time,” Allen said.

In 2015, North Carolina passed “Blackbeard’s Law,” which redefined the images and video as public record and said the state no longer had to abide by the agreement. Though the law was not a central part of the case, it came up several times during arguments.

“What do I do with the Blackbeard law? It is deeply troubling. It’s a state saying even if I’m infringing, you can’t get anything,” Justice Sonya Sotomayor said. “What remedies do they have under federal law for a state doing something like that?”

Park said he agreed it was “a strange law.”

The case could have far-ranging implications beyond copyright law if the court finds that Congress can eliminate state sovereign immunity in other areas, thus allowing states to be held accountable for violations of federal law.

For more state government news, listen to Domecast, the politics podcast from The News & Observer and the NC Insider. You can find it on Megaphone, Apple Podcasts, iHeartRadio, Stitcher or wherever you get your podcasts.

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Brian Murphy covers North Carolina’s congressional delegation and state issues from Washington, D.C., for The News & Observer, The Charlotte Observer and The Herald-Sun. He grew up in Cary and graduated from UNC-Chapel Hill. He previously worked for news organizations in Georgia, Idaho and Virginia. Reach him at 202.383.6089 or bmurphy@mcclatchydc.com.
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