Blackbeard abandoned his famed pirate vessel after it ran aground off the coast of North Carolina in 1718.
Three centuries later, the U.S. Supreme Court will decide if state officials pirated copyrighted material of its discovery.
Fayetteville videographer Rick Allen sued North Carolina officials in 2015 claiming they published his photos and videos of the Queen Anne’s Revenge shipwreck without his permission. The state said it was for the public good and claimed immunity.
Now justices are slated to hear oral arguments in the case on Tuesday.
Where did this start?
Edward Teach — also known as the pirate Blackbeard — is a storied legend on the coast of North Carolina.
According to historical record, he captured a French ship in 1717, stacked it with 40 guns and christened her Queen Anne’s Revenge . The vessel was Blackbeard’s flagship for only a short time before he wrecked her near modern day Beaufort in 1718, where it lay undetected until 1996.
Then things got harried.
The private research firm Intersal Inc. discovered the wreck and hired Allen’s company, Nautilus Productions LLC, to document its salvage, according to briefs filed at the Supreme Court.
Allen spent the next two decades recording and archiving pictures and video of the shipwreck and its artifacts, the brief states.
At one point, attorneys for Allen said the N.C. Department of Natural and Cultural Resources used some of that material and were forced to pay him a $15,000 settlement and agree “not to infringe the works in the future.”
But they did, he said.
“The state initially complied with the agreement by taking down its infringing uses, but then quickly resumed its infringement by again copying and publicly displaying Nautilus’s copyrighted videos and photographs online and in print,” Allen’s brief states.
His attorneys argued the state ignored his take-down notices and instead tried to “insulate itself from any liability” by crafting legislation that places material documenting “a derelict vessel or shipwreck or its contents, relics, artifacts, or historic material” in the public domain.
Then-Gov. Pat McCrory signed the bill into law in 2015, the Raleigh News & Observer reported.
Allen sued shortly thereafter, calling it “a case of modern day piracy on the Queen Anne’s Revenge.”
The videographer and state officials traded barbs as the lawsuit moved first through the district court, where a judge rejected the state’s immunity argument, and later to the appeals court.
Fourth Circuit judges reversed the lower court’s decision in 2018, the News & Observer reported, and the Supreme Court announced earlier this year that it would hear the case.
What are justices being asked to decide?
The issue of state sovereign immunity as it applies to the Copyright Remedy Clarification Act of 1990 is at the core of the dispute, SCOTUSBlog reported.
Under the 11th Amendment, states are immune from private litigation, according to Cornell Law School’s Legal Information Institute. But SCOTUSBlog reported Congress has the power to repeal that immunity in some cases.
One such instance is specifically outlined under the CRCA, which allows congress to walk back immunity when a state has been accused of copyright infringement, according to Above the Law.
Allen’s attorneys argued the CRCA is a valid exercise in the retraction of state sovereign immunity.
But officials in North Carolina disagreed.
Attorneys for the state have asked the Supreme Court to uphold the Fourth Circuit decision, saying the CRCA is unconstitutional and “not a valid exercise of Congressional authority,” Above the Law reported.
“State sovereign immunity is a core structural feature of the nation’s constitutional system,” state attorneys said in their brief. “Thus, only rarely can Congress authorize private lawsuits against states.”
Who else has weighed in?
More than a dozen other parties have submitted briefs for the justices to consider.
Thirty-one states — including Florida, Georgia, South Carolina and Tennessee — have backed North Carolina, arguing the Constitution favors “sovereign immunity of the states.”
“Reversal would work a serious and unwarranted shift in the balance between state and federal power that is critical to our constitutional regime,” the brief states.
Simone Rose, a law professor at Wake Forest University School of Law, also sided with the state. She said Allen’s perception of an “increasing phenomenon of states infringing copyrights” — a “menace,” as he called it — isn’t protected by copyright law.
But three other constitutional law scholars, two of whom are professors at Duke University, said “copyright is a strong candidate” for waiving immunity and argued Allen had shown both a statutory and constitutional violation of the law.
“That Congress was ahead of events in this instance surely does not render the act unconstitutional,” the brief states.