A Copyright Issues Regarding the Rights to Blackbeard’s Sunken Treasure

Publication Date: 2019/06/28 9:30 am

Everyone has heard of Blackbeard's Sunken Treasure but not everyone knows the true story. Blackbeard was one of the most terrifying and notorious pirates in history and his actions in 1717 set in motion a chain of events that led to a recent copyright case. Blackbeard captured a French ship, the Queen Anne's Revenge, and added 40 cannons to turn it into his warship (in a fateful twist, the precursor to our Copyright Act was the English law named the Statute of Anne). After accidentally grounding the ship in Beaufort Inlet, North Carolina a year later, Blackbeard abandoned the ship, leaving it to its suken fate. Just five months later Blackbeard met his own end at the hands of the Royal Navy of Virginia, but both Blackbeard and his pirate ship are still making waves centuries later.

Private Flag

Rediscovering the Queen Anne's Revenge

In 1996, the remains of Blackbeard's warship were discovered off the coast of North Carolina. The state started a process of recovering the artifacts from the ship, documenting items and preserving what they found. The ship has a lot to offer historians, as there are still many artifacts which are intact and salvageable. While the ship is the property of the state, a company called Nautilus Productions was allowed to document the decades-long salvage operation. Nautilus took photos and videos to record the process, obtaining copyrights to their works along the way.

The First Copyright Suit

The North Carolina Department of Natural and Cultural Resources (the department overseeing the salvage operation of the ship) printed one of the copyrighted photos on its website in 2013. Nautilus asserted their copyright rights against the department claiming that it was not authorized to use Nautilus' photos/videos. Ultimately, Nautilus and the department resolved the dispute by way of agreeing to a settlement with neither party admitting wrongdoing.

State Legislative Response

The 11th Amendment of the Constitution, as interpreted by the United States Supreme Court, provides states with immunity against lawsuits by its citizens in federal courts and in their own courts for violations of federal law. There are some very limited exceptions to this immunity. Because copyright infringement cases can only be brought in federal courts, states would be protected against copyright infringement lawsuits. However, the federal legislature determined that the rights to one's copyrights are more important than the sovereign immunity of the states when it enacted the Copyright Remedy Clarification Act ("CRCA"). The CRCA provided an exception to the state's sovereign immunity to allow citizens to assert copyright infringement claims against the state. There were similar statutes for trademarks and patents, too.

It is the CRCA which allowed Nautilus to bring its first action for copyright infringement against North Carolina. However, in response to this Action, North Carolina enacted a law in 2015 that made shipwreck recordings (photographs and videos) part of the public record if the materials were in the state's custody. Unsurprisingly, Nautilus was not amused and sued to have the North Carolina law declared unconstitutional. This prompted North Carolina to claim that the CRCA is unconstitutional. The appellate court agreed with North Carolina and declared the CRCA unconstitutional which meant that North Carolina was immune from Nautilus' lawsuit. The Supreme Court decided to hear this case to determine once and for all whether the CRCA is constitutional.

The Copyright Remedy Clarification Act

The real goal of the act seems to have been to abrogate the sovereign immunity of states with regard to copyright infringement. As an attempt at changing the way copyright claims can be enforced, the Copyright Remedy Clarification Act has been controversial. The Constitution favors copyright holders and gives them protection even against government entities. Indeed, there would not be much point in artists creating works if it was easy for others to use them without permission. Indeed, one of the fundamental premises of intellectual property laws is to encourage creativity and inventorship.
Several courts have declared the Copyright Remedy Clarification Act to be unconstitutional, including the Court of Appeal hearing Nautilus’ case. This finding is consistent with prior Supreme Court cases holding that similar legislation abrogating state immunity against trademark and patent lawsuits was unconstitutional. Given the Supreme Court’s rulings that the similar intellectual property statutes abrogating sovereign immunity where unconstitutional, the CRCA is likely sunk-as was the Queen Anne. Copyright protections for legal rights to images are as important to protect as any other creations, and the North Carolina government knew or should have known where the images came from. The 11th Amendment to the United States Constitution specifically gives states immunity from lawsuits by its citizens in federal courts--meaning states have immunity against Copyright litigation. State immunity is vital to protect the system, but protecting asset ownership is vital to protect the individual. The United States’ system is a delicate balance of rights, which can easily be seen in situations like this where all of the rights involved are important and require protection. The Supreme Court will have to consider and weigh these competing rights against one another in determining the constitutionality of the CRCA.


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