Blackbeard is Back: Will he make it to the Supreme Court?

Credit: Wikimedia Commons

Next month will mark three years since I started writing this blog. I have enjoyed researching interesting and sometimes arcane international copyright topics, and I hope you have enjoyed reading them. When I first embarked on this project, I wanted to write on copyright issues from the perspective of an interested and reasonably well-informed layman (or should I say “layperson”?). There are lots of really good legal blogs on copyright, put out by individual and collective legal practitioners and associations. I rely on them for guidance in many instances, although I try not to go too far into legal issues because, as a non-lawyer, I don’t feel qualified to do so. As we all know, copyright is complex (which is what makes it so interesting to me), with no “one size fits all” doctrine or interpretation. While 176 countries have signed the Berne Convention and have accepted its minimum standards, the application of copyright law varies widely. Between two close neighbours, like Canada and the US for example, the differences can be quite striking.

I have been gratified that a number of people have reached out to me about my blogs, and a few have even suggested that I might be interested in writing on issues of direct interest to them. One of them was David Slater, the wildlife photographer made famous by the “Monkey Selfie” case. I have written a couple of blogs on this seemingly never-ending saga (here, and here). Another was Rick Allen, a filmmaker who alerted me to his struggles with the State of North Carolina’s Department of Natural and Cultural Resources over the copyright in his film video of the wreck of Edward Teach’s (aka Blackbeard the Pirate) flagship Queen Anne’s Revenge, sunk off the North Carolina coast in 1718. The story is recounted in detail in my blog of April 28, 2016 but here is a quick summary.

About twenty years ago Intersal Inc., a company formed to locate and excavate historic wrecks, located the remains of Queen Anne’s Revenge. The company signed an agreement with the State of North Carolina allowing it, among other things, to produce a documentary film for broadcast only in North Carolina detailing the story of the research and salvage of the ship. Rick Allen’s company, Nautilus Productions, was engaged as the official video crew and the footage was widely broadcast on commercial networks, licensed by Nautilus. Subsequently there was a dispute between Nautilus and the State over the use of the footage. A settlement agreement was reached by which North Carolina paid Allen to settle alleged copyright infringements, and promised to cease such activity. The State did cease infringement but in 2015 it sought to indemnify itself by passing legislation, known colloquially as “Blackbeard’s Law”, requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record. After the passage of “Blackbeard’s Law” the State resumed infringement both online and in print and Allen issued takedown notices that were ignored. In other words, North Carolina passed targeted legislation invalidating Allen’s copyright and depriving him of licensing opportunities in order to suit itself. Not surprisingly, Allen sued.

North Carolina argued that it had state sovereign immunity under the Eleventh Amendment of the US Constitution and could not be sued for its actions. While there is no doubt that US states have sovereign immunity in most matters as a result of this Amendment, there is the competing requirement under Article 1 of the US Constitution that grants authors and inventors for a limited term the exclusive right of protection for “their respective Writings and Discoveries”. In accordance with Article 1, Congress also enacted, in 1990, the Copyright Remedy Clarification Act (CRCA) which, according to the blog IP Law Trends, provides that States and state officers;

shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under other doctrine of sovereign immunity, from suit in Federal court by any person . . . for a violation of any of the exclusive rights of a copyright owner provided by [federal law].”

We have the classic case of the irresistible force meeting the immovable object. Which will prevail?

After a lower court found for Allen by allowing his suit–the Copyright Alliance submitted an Amicus brief supporting him–the North Carolina appealed and the case went to the US Court of Appeals for the Fourth Circuit. According to lawyer Brian Esler, writing in IP Law Trends,

“The Fourth Circuit …found that Congress itself was the outlaw in passing a statute purporting to abrogate the State’s sovereign immunity because ‘Congress cannot rely on the enumerated power in Article I over copyright to compel a State to litigate copyright cases in a federal court.’ In doing so, the Fourth Circuit joined a growing list of federal courts that have held the Copyright Remedy Clarification Act to be unconstitutional.”

That sounds pretty definitive, but there is always the nuclear option of appealing to the US Supreme Court. That is what Allen has decided to do. In a petition filed on January 4, 2019, the Court is asked to decide, “Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act… in providing remedies for authors of original expression whose federal copyrights are infringed by states”.

The petition notes that prior to the passage of the CRCA there was flagrant copying of works by states and that there have been a number of recent cases. The petition goes on to state that;

“unless this petition is granted the CRCA will be rendered a dead letter by default, without Congress or aggrieved copyright holders ever getting their due”.

Moreover, “North Carolina’s infringement at issue is but the protruding tip of a much larger iceberg of state infringement nationwide”.

Will all this be enough to convince the US Supreme Court to accept the case? This is not the first time that the CRCA has been ruled by courts to be outside Congress’ authority to enact, and state institutions like universities not infrequently employ the sovereign immunity defence in copyright infringement cases, but the behaviour by North Carolina is particularly egregious. The state passed specific legislation to enable itself to abrogate a contract and avoid paying a licensing fee, and then invoked the Eleventh Amendment to argue that it could not be sued. One hopes that the SCOTUS will accept the petition (i.e. grant certiorari) and consider the question. More than that, one would hope that the Court will deliver justice for copyright holders who have repeatedly seen their work appropriated without payment by state authorities, using state sovereign immunity as the pretext, in contravention of the expressed will of Congress.

© Hugh Stephens, 2109. All Rights Reserved.

Update: On June 3, 2019, the US Supreme Court agreed to hear the case, beginning in October. Blackbeard’s legacy lives on!




Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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