The Curse of Blackbeard: Controversy Over Copyrights Nearly 300 Years Later

On Tuesday, November 5, 2019, the Supreme Court of the United States heard the case of Allen v. Cooper. The case stems from Frederick Allen, a filmmaker and exclusive photographer for the Queen Anne’s Revenge shipwreck.

The Queen Anne’s Revenge is a ship that Blackbeard captured in 1717, but was later run into Beaufort Inlet, North Carolina in 1718.  Now, nearly 300 years later, Blackbeard’s ship caused contention on land just outside of its reach.

Mr. Allen’s dispute started in 2013 when he found out that the State of North Carolina was utilizing his (as well as his company Nautilus Productions) photographs without his consent.After a much-heated debate, the two parties settled, which required the State of North Carolina to compensate Mr. Allen with $15,000 and required the photographs to be taken down.

Shortly thereafter, the State of North Carolina posted videos and photographs from a recent recovery expedition, despite the work product being protected as per Mr. Allen’s copyright protections with the U.S. Copyright Office.   

As a result, Mr. Allen was forced to file suit again. This time, in an effort to negate Mr. Allen’s argument, the State of North Carolina passed §121-25(b) – dubbed “Blackbeard’s Law” – which treats all photographs, video recordings and other documentary material of a derelict vessel or shipwreck or its contents as “public record.” 

Despite the State of North Carolina establishing §121-25(b), the Eastern District of North Carolina found for Mr. Allen and determined he, “Was entitled to sue the State of North Carolina for allegedly infringing upon his copyrights.”  At which point, the case was then appealed, from which the United States Fourth Circuit Court of Appeals reversed the lower court’s decision. The Fourth Circuit’s basis stemmed from its determination that, “Congress exceeded its powers in passing the 1990 Copyright Remedy Clarification Act as an attempt to override state sovereign immunity in copyright disputes.”  

On appeal to the Supreme Court, Mr. Allen said, “States are flagrantly infringing upon the copyrights of authors and invoking sovereign immunity as a way to avoid paying damages.”  As a result,  the Supreme Court was left wrestling with the question of “…whether it could-and should-do anything in the face of state governments infringing the copyrights of authors.” 

During the hearing, Justices fought back in forth over whether this was or was not a serious constitutional problem.  Some Justices referenced their confusion with Mr. Allen’s claim. Justice Alito was among the above-mentioned group, who stated, “You tell us in your brief that when Congress enacted the CRCA it had 16 examples over the previous decade of reported state infringement in 13 states. Is that enough to identify a serious constitutional problem?”

Other Justices such as Kavanaugh and Sotomayor found the issue to be troubling – specifically, thinking about how state government copyright infringement can run rampant with a ruling in favor of North Carolina.  

A ruling in the case is due by the end of June. 


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