Supreme Court to Review State’s Plundering of Pirate Ship Media Rights

June 7, 2019 Updated: June 7, 2019

WASHINGTON—The Supreme Court agreed this week to consider videographer Frederick Allen’s appeal of a circuit court ruling he claims unfairly deprived him of his intellectual property rights related to his coverage of the salvaging of a ship off the North Carolina coast that was owned by the pirate Blackbeard.

The Supreme Court granted Allen’s petition for certiorari on June 3. The case is expected to come before the court for oral arguments in the fall term.

Allen claims North Carolina published his material without permission, contrary to the federal Copyright Remedy Clarification Act (CRCA) which he says “reflects Congress’s unmistakable intent to protect federal copyrights against infringement by States.”

The statute, Allen says, specifically defines potential infringers of copyright to include “any State, any instrumentality of a State, and any officer of a State or instrumentality of a State acting in his or her official capacity,” and declares such persons and entities will be subject to copyright liability “in the same manner and to the same extent as any nongovernmental entity.”

Blackbeard, whose real name is thought to have been Edward Teach, was an English privateer and pirate who died in 1718. He converted a French ship into a 40-gun warship, the Queen Anne’s Revenge, and conducted raids along the coasts of Virginia and the Carolinas.

Ironically, English law, the forerunner to American law, recognized copyrights in 1710 during the reign of Queen Anne. The Statute of Anne was “the first statute to declare that the subject matter of copyright would be regulated by the government and the courts, rather than agreements between private parties,” according to IP Law Trends.

Blackbeard established his base in 1718 in a North Carolina inlet, forcibly collecting tolls from shipping in Pamlico Sound and making a prize-sharing pact with Charles Eden, governor of the North Carolina colony, according to Encylopaedia Britannica.

Blackbeard’s much-storied buried treasure—assuming it existed—has never been located.

But the wreck of the Queen Anne’s Revenge, Blackbeard’s flagship, was found near Beaufort, North Carolina, in 1996 by Intersal Inc., yielding hundreds of artifacts including cannons, a sword hilt, and navigational devices.

In 1998, Intersal signed a deal with North Carolina acknowledging the state’s ownership of the vessel and its artifacts, while giving salvage rights to the company. Intersal hired videographer Frederick Allen, and his production outfit, Nautilus Productions LLC, to document the salvage effort.

Allen registered 13 copyrights of video archives and still images he made during the project and sued the state in 2013 for publishing his work without asking. Allen claimed the state continued to violate his copyrights and sued in federal court in 2015.

Allen claimed a 2015 North Carolina statute making media depicting a shipwreck public record was enacted in bad faith. A U.S. District Court rejected the state’s motion to dismiss, finding the CRCA did not shield the state and individuals involved from liability. North Carolina appealed, telling the Richmond, Virginia-based 4th Circuit Court of Appeals that the CRCA hadn’t validly repealed the state’s immunity from suit under the 11th Amendment. The circuit court sided with the state.