Blackbeard and the Modern Day Pirates Commons)
Blackbeard (Creative Commons)

Edward Teach was a notorious pirate, Blackbeard by nickname. Despite the “swashbuckling” image of pirates­ and the glorification of their exploits that has come down to us through years of story-telling, Blackbeard’s stock in trade was stealing what belonged to others—just like today’s modern copyright pirates. That is what makes the story of Blackbeard’s ship, Queen Anne’s Revenge, (QAR) and the film-maker who filmed the wreck and its recovery efforts, so topical—and ironic. It’s a fitting reminder having just marked World Intellectual Property Day, 2016 that vigilance to protect copyright is as important today as vigilance against Blackbeard’s raids was almost 300 years ago.

It all started back in 1996 when a company named Intersal, Inc., established a few years earlier to “increase knowledge and awareness of America’s rich maritime heritage by researching, locating and excavating valuable historic shipwrecks”, found the remains of Blackbeard’s ship off the North Carolina coast. It had sunk there in 1718 after a naval engagement. Shortly after discovering the wreck, the company signed a Memorandum of Agreement (“MOA”) with the North Carolina Department of Cultural Resources, which according to Intersal, granted the company, among other things, the “exclusive right…to produce, co-produce or commission a documentary film (or series of films) detailing the story of the research, search for, discovery, and salvage of QAR.” A film company, Nautilus Productions was engaged to be the official video crew to film the underwater salvage operation, and that footage was seen in over a dozen documentaries broadcast worldwide including by ABC, BBC, CNN, Discovery Channel, National Geographic, PBS, Smithsonian Channel and others. Nautilus Productions states that it is “the exclusive owner and licensor of footage from Blackbeard the Pirate’s flagship, Queen Anne’s Revenge”.

So far, so good. But then it appears things began to break down between the Department of Cultural Resources and Intersal, resulting in a dispute over the use of QAR images that was finally settled in 2013. Under the terms of that settlement agreement between the Department, Intersal and Nautilus, the film company and its owner, filmmaker Rick Allen, received $15,000 to settle alleged copyright infringement. But this was not the end of the dispute, and in July 2015 Intersal brought an $8 million lawsuit against the Department for contract violation. The state responded in August of last year by passing House Bill 184, known as “Blackbeard’s Law” which stated, among other things, that, “all photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record…(and) there shall be no limitation on the use of or no requirement to alter any such photograph, video recordings, or other documentary material, and any such provision in any agreement, permit, or license shall be void and unenforceable as a matter of public policy.” In plain language, the North Carolina legislature is claiming that if the subject matter of the work of a photographer, videographer or filmmaker happens to be derelict vessel or shipwreck under the jurisdiction of the State of North Carolina, all such work shall be in the public domain with no requirement to respect the author’s watermarks or other identifying marks of ownership. The legislation has the effect of nullifying any existing claims to copyright, or license agreements going forward.

As a result of this legislative sledgehammer, in December of last year Allen and Nautilus Productions brought suit against Governor Pat McCrory, the State of North Carolina and others alleging unconstitutional infringement of copyright, claiming that the legislation amounted to “modern day piracy”.

This case raises some interesting questions. Was the film footage shot without permission or did it impinge on the subject’s privacy? This does not appear to be the case. Did Rick Allen and Nautilus Productions shoot and produce the footage and does he claim the copyright on the images that he took? This does not seem to be in dispute. Therefore one wonders on what basis this very specific law can justifiably deprive a rights holder of his property, namely the rights to the film footage that he created, shot and produced–at considerable cost in time and money.

If the Blackbeard law—which is state legislation—can trump the rights of a copyright owner, what is to stop any subnational government from expropriating the copyright of a photographer, filmmaker or videographer (without any compensation by the way) just because it wants to control the distribution of the images owned or taken by that person or entity. Could New York pass a law requiring that all images of Niagara Falls be a public record, for example, or California pass a law denying copyright to anyone who took a photograph of the Golden Gate Bridge? This may seem fanciful but Blackbeard’s Law appears to this commentator be the thin edge of the wedge. Ultimately of course the court, in its wisdom, will decide the outcome of this case, and we will all know the acceptable parameters.

A few weeks ago, I wrote another blog about a filmmaker who was being sued by the Vancouver Aquarium for alleged copyright infringement for taking images from its website, without authorization, to include in his film (a film that was critical of the Aquarium). The Blackbeard case is the opposite situation, where a filmmaker is going to court to preserve his copyright in the face of alleged expropriation of his work by the state. Both cases demonstrate the importance and application of copyright principles in our daily lives. The work of copyright creators enriches us all; respect for copyright is the means to ensure that this creativity continues.

© Hugh Stephens 2016

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