U.S.
Supreme Court Leaves Copyright Holders Without Remedy!
March 23, 2020: After
North Carolina passed Blackbeard's Law & was sued for copyright
infringement the United States Supreme Court, in a unanimous decision,
has affirmed a lower court’s ruling that Nautilus Productions cannot
pursue its lawsuit against the state. Justice Kagan wrote for the Court that the Court’s 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College
Savings Bank, which invalidated the federal statute that sought to hold
States monetarily liable for patent infringement, “all but prewrote” this
decision by the Court. In a separate concurrence, Justice Clarence Thomas
questioned “whether copyrights are property within the original meaning of the
Fourteenth Amendment’s Due Process Clause.” Justice Breyer, joined by
Justice Ginsburg, lamented that “something is amiss” in the Court’s prior
precedents, while nonetheless agreeing that they control and therefore
concurring in the judgment.
Nautilus, the official videographer
of Blackbeard’s pirate ship the Queen Anne’s Revenge, brought
suit at the end of 2015 alleging the defendants made illegal copies of
Nautilus’s videography, and then persuaded the legislature to pass an
extraordinary law - now known as “Blackbeard’s Law” - in an attempt to justify pirating decades of work
created by Nautilus.
Nautilus owner, Rick Allen, stated,
“Today, under this Supreme Court ruling, writers, software developers,
composers, film-makers and other creators, just like me, cannot avail
themselves of the protection Congress gave them from copyright infringement by
states. We are saddened by the court’s decision. The state of North
Carolina routinely and vigorously enforces its own copyrights, yet
simultaneously hides behind sovereign immunity when it violates the
intellectual property rights of its own citizens. The Constitution and Congress
of the United States of America call for a different result. The Constitution
expressly grants copyright holders ‘the exclusive right to their respective
writings and discoveries,’ and Congress expressly provided for States to be
liable when they infringe those exclusive rights.”
“Going
forward Nautilus will be evaluating all of its options.” said Allen.
This lawsuit arises out of the
retrieval of Blackbeard’s pirate ship. According to the complaint filed in the case, the defendants were not content to use the
videography as agreed and began making unauthorized copies, covering up their
misconduct and passing and amending legislation to protect their copyright
infringements. Defendants in addition to the Governor and the State include
employees of the Department of Natural and Cultural Resources, and the Friends
of Queen Anne’s Revenge non-profit. The Friends of Queen Anne’s Revenge dissolved their corporation after
the lawsuit was filed and are being defended by their insurance carrier.
Since 1998, Nautilus Productions has
been the official video crew for the Blackbeard’s Queen Anne’s Revenge
Shipwreck Project. Nautilus Productions has spent almost 20 years diving on the
pirate shipwreck in dangerous conditions and documented archaeological
activities and the recovery of artifacts from Blackbeard’s infamous shipwreck
for the benefit of, and at zero cost to, the taxpayers of North Carolina.
The shipwreck was discovered in 1996
by Intersal Inc.,
which has filed a separate lawsuit against North Carolina and the Friends of
Queen Anne’s Revenge that continues in state business court.
Nautilus Productions LLC
is represented by Derek Shaffer and Todd Anten of Quinn Emanuel, Susan Freya Olive and David
McKenzie of Olive and Olive, P.A.
and Joe Poe of the Poe Law Firm, PLLC.
