Piratical N.C. Copyright Law Deep-Sixed by Blackbeard Videographer!
In a story line the infamous pirate himself would love, North Carolina has repealed its own “Blackbeard's Law.” The law, passed in 2015, had targeted famous underwater photographer Rick Allen and his footage of Blackbeard’s flagship, the Queen Anne’s Revenge by converting all photography and videos of shipwrecks that came into State hands into public records that the State could use without payment. The State apparently hopes this will end a lawsuit...but it won’t.
The backstory is almost as old as the law. In 2013, North Carolina’s Department of Natural and Cultural Resources violated copyrights owned by Allen and his company, Nautilus Productions—and paid $15,000 to settle their copyright infringement claim. Desperate to keep using Allen’s unique footage but unwilling to pay, the State passed “Blackbeard’s Law” and the State resumed its buccaneering ways. Nautilus and Allen answered with their own broadside: a lawsuit in federal court.
Finally, on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing Blackbeard's Law. The repeal came after 8 years of litigation, and is apparently triggered by the State’s realization that it had no legitimate defense to at least one of the federal court claims: that Blackbeard’s Law was a constitutionally prohibited “Bill of Attainder”—a bill that targets and harms an individual, without any due process at all. Since various State legislators had admitted to the motivation, it would have been hard to show otherwise.
The repeal was passed unanimously by the state legislature, and is being hailed as a victory not just for Allen and Nautilus, but for copyright owners nationwide.
“This isn’t the end of the road, by a long shot, but it’s a good start,” said Allen. He went on to explain: “The repeal of the law does nothing to negate the past and ongoing copyright violations, damages for those violations, or the eight years in which the state and its affiliates hid behind Blackbeard’s Law to justify their scandalous behavior.”
Allen pointed out that North Carolina didn’t just use Allen’s works without paying for them—it keeps defending its thefts by asserting that states are immune to copyright infringement lawsuits from creators like Allen and Nautilus. This is because states are considered “sovereign entities” under the law in some circumstances, which means that they can't be sued without their consent. But here's the kicker: North Carolina can sue its own citizens for copyright infringement! So, North Carolina asserts it can’t be sued for copyright infringement, but it can turn around and sue others for infringement.
This double standard is one that Allen and Nautilus’s lawsuit, Allen v. Cooper, continues to fight against. In addition to pointing out that Blackbeard’s Law is a Bill of Attainder, their lawsuit against North Carolina argues that the State effectively plundered Nautilus’ priceless footage of Blackbeard’s flagship, the Queen Anne’s Revenge, for its own use—a prohibited “Taking” of his property in violation of the Constitution, and that the State's “sovereign immunity” defense is a violation of the 5th and 14th Amendment.
The fight goes on: “We will continue to hold N.C. accountable for its behavior just as N.C. and the Attorney General’s office prosecute anyone who engages in the theft of North Carolina property,” said Allen.
For nearly two decades, Nautilus Productions was the official video crew for the Blackbeard’s Queen Anne’s Revenge Shipwreck Project. Nautilus Productions documented archaeological activities and the recovery of artifacts from Blackbeard’s infamous shipwreck at zero cost to the taxpayers of North Carolina. Nautilus’ footage of Blackbeard’s shipwreck has aired worldwide on the BBC, the History Channel, the Discovery Channel, National Geographic and many more.
The shipwreck was discovered in 1996 by Intersal, Inc. which has filed a separate breach of contract lawsuit in North Carolina’s Business Court. The State of North Carolina and its Department of Natural and Cultural Resources are defendants in that lawsuit. That trial date is set for February 19, 2024.
Nautilus Productions LLC is represented by Susan Freya Olive, solive@oliveandolive.com - (919) 683-5514 and David McKenzie, DMcKenzie@oliveandolive.com - (919) 683-5514 of Olive and Olive, P.A., Joe Poe, joe@poelaw.com - (919) 810-0311, of the Poe Law Firm, PLLC, and Adam Adler, aadler@reichmanjorgensen.com - (650) 623-1480, of Reichman Jorgensen Lehman & Feldberg LLP.
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