This brings a whole new meaning to the idea of internet piracy… On Monday, the U.S. Supreme Court announced it would take up the case Frederick Allen v. Roy Cooper, a copyright case involving the unearthed wreckage of “Queen Anne’s Revenge,” the pirate ship sailed by the infamous pirate Edward Teach, better known as “Blackbeard.”
“The instant dispute arises from the discovery of Blackbeard’s flagship, Queen Anne’s Revenge, which ran aground at Beaufort, North Carolina in 1718,” the Supreme Court petition reads. “The shipwreck was discovered in November 1996 by Intersal, Inc., a private research and salvage firm, which retained petitioners Frederick Allen and his company Nautilus Productions, LLC (collectively, ‘Nautilus’) to document salvage of the ship.”
“Through this arrangement, Allen and his company have been serving as the videographer and production company filming the shipwreck for nearly two decades, resulting in their creation of original videos and still images of the wreck and salvage efforts,” the brief continued. “Allen registered with the U.S. Copyright Office copyrights for the Works, which are licensed to and commercialized by Nautilus Productions.”
Before October 2013, the State of North Carolina and its Department of Natural and Cultural Resources (DNCR) copied and displayed Nautilus’s pictures of Queen Anne’s Revenge online without its permission. That month, North Carolina, the DNCR, and others entered into a settlement agreement, paying Nautilus $15,000 for prior infringements and agreeing not to display the works without Nautilus’s permission again.
North Carolina then passed H.B. 184, “Blackbeard’s Law,” which aimed to convert the pictures into “public record” materials that the state could use “without any ostensible consequence or remedy.” Nautilus sued the state in December 2015.
The 4th Circuit Court of Appeals ruled in favor of North Carolina, arguing that when the U.S. Congress passed the Copyright Remedy Clarification Act (CRCA) of 1990, it violated the Constitution. Lawyers for Nautilus argued that the CRCA reflected “Congress’s unmistakeable intent to protect federal copyrights against infringement by States.” Furthermore, they argued that the Intellectual Property Clause of the Constitution specifically authorizes Congress to “promote the Progress of Science and useful Arts, by security for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The CRCA specifically amended the Copyright Act to strip “any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity” of Eleventh Amendment immunity for copyright infringement.
The Eleventh Amendment clarifies that individuals who live in other states can still sue the government of a different state and that federal courts do not have the authority to hear cases brought by private citizens against states. The Supreme Court has ruled that Congress can abrogate state immunity when using its authority under the Bankruptcy Clause or Section 5 of the Fourteenth Amendment. Nautilus’ counsel argued that Congress was within these rights when passing the CRCA.
The Supreme Court does not often take up cases involving pirate ships like Queen Anne’s Revenge. However, this case also involves significant constitutional issues regarding states and copyright law. Thanks to these thorny legal issues, the Supreme Court will get to argue about Queen Anne’s Revenge and Blackbeard. Who said legal battles couldn’t be fun?
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.