Scuttling Blackbeard’s Law

Blackbeard’s Law, a controversial North Carolina law that, functionally, placed videos and images taken of North Carolina shipwrecks in the public domain, has been repealed.

According to a news release by photographer Rick Allen and film company Nautilus Productions, who are actively engaged in litigation with the state, the repeal was signed by Governor Roy Cooper on June 30th, 2023 after it was passed unanimously by the state legislature.

The move ends an eight-year run with the law in effect. That run has largely been punctuated by long-running litigation between the Allen and Nautilus against the state. As I discussed in November 2019, at issue between the sides is footage captured by Allen of the shipwreck of the Queen Anne’s Revenge, the ship most connected with the pirate Edward “Blackbeard” Teach, and alleged infringement by the state of that footage.

Though the repeal of the law is an important step, and a potentially significant win for copyright holders, it doesn’t bring an end to the litigation that sparked it. The decade long case has largely hinged on other constitutional issues, most prominently the idea of sovereign immunity.

As such, the case is continuing, but rightsholders still have some reasons to celebrate. 

Background of the Case

The background of the case began in 1996 when Intersal, a private salvage company, located the wreckage of the Queen Anne’s Revenge in North Carolina waters.

Intersal reached an agreement with the state to photos and videos of the wreckage and brought in Nautilus and Allen into produce the actual content. 

However, the relationship between the state and Nautilus/Allen began to sour in 2013. That’s when they allege that the state was illegally using video and photos taken by them from the wreck. Initially, the state paid some $15,000 for the infringement, which included the use of the content on various state-owned websites.

But the infringement continued after the settlement and, in 2015, the state passed a law dubbed “Blackbeard’s Law”, which made all photographs or videos taken of shipwrecks in North Carolina waters custody of the state, functionally placing them in the public domain.

This prompted a lawsuit by Allen and Nautilus, alleging copyright infringement. 

However, North Carolina’s argument was relatively simple. Under the principle of sovereign immunity, they cannot be sued in a federal courtroom without their consent. Since copyright cases can only be heard in federal courts, there’s simply no way for them to be held liable. 

To that end, the case was a challenge of the Copyright Remedy Clarification Act (CRCA), a 1990 act that attempted to strip sovereign immunity on matters related to copyright infringement. The plaintiffs argued the law meant the state could be held liable, while the state said the law was too broad and unconstitutional.

The lower court agreed with the plaintiffs, but that decision was overturned by the Fourth Circuit Court of Appeals, prompting the Supreme Court challenge. 

In March 2020, the Supreme Court ruled on the case, finding unanimously that the CRCA was unconstitutional. It was a major defeat for both Allen and Nautilus. 

However, the case actually survived, An August 2020 court decision that the Supreme Court had not weighed in whether North Carolina’s actions violated the takings clause of the 5th Amendment, which prevents states from seizing property without compensation. 

That part of the dispute is ongoing. 

In the midst of that ongoing litigation, the government of North Carolina quietly  made the decision to repeal Blackbeard’s Law. According to Allen, the move was caused by a realization that there was no legitimate defense for the law. 

Specifically, he claims the law was a constitutionally prohibited “Bill of Attainder”, which is a bill that harms an individual without due process. 

As such, the state opted to repeal the law rather than attempt to defend it.

But while the law’s repeal may be insignificant in the legal history of this particular case, it’s still a victory worth noting as it is one that could impact other rightsholders.

Why it Could Be Important

The combination of sovereign immunity and copyright is, to put it modestly, a toxic one.

As Allen points out, states currently have the right to sue individuals and companies for copyright infringement, as the state of Georgia did to over its annotated legal code, but there is no clear way for them to be sued for the same action.

However, Blackbeard’s Law also pointed to another potential pain point for creators and rightsholders: States stripping creators of their rights.

Sure, Blackbeard’s law is extremely niche. It only impacted a very small percentage of the work filmed in the state and, quite clearly, was targeted at one wreck and at one set of plaintiffs.

But imagine if states took that logic to the next step and began claiming ownership of all content filmed in state parks, in state buildings, on state university campuses?

While there are a myriad of reasons, both legal and practical, states could not and would not do that, if North Carolina’s law went unchallenged, it could embolden other states to similarly protect other landmarks.

To many, it was equally unthinkable that a state would sue for copyright infringement over its annotated legal code, but Georgia did and took that case to the Supreme Court. 

The intersection of state’s rights and copyright is already deeply complicated territory and, as unlikely as it was to survive any serious challenge, Blackbeard’s Law added more fuel to the fire and more layers to the confusion.

Having it gone eliminates the question and lets everyone resume focusing on the still murky constitutional issues that exist in this space.

Bottom Line

Some will note that laws restricting photography and videography in certain locations are common. For example, in France, taking photos of the Eiffel Tower at night is legally fraught due to the lack of “freedom of panorama” law. Other monuments, including many in the United States, are similarly protected

What was different about North Carolina is that the Eiffel Tower and other attractions are areas where the rights of a photographer run into the right of another creator or copyright holder. 

In North Carolina, there was no copyright to Blackbeard’s Ship, the state was simply trying to take ownership of the works captured that featured it solely because it was in North Carolina waters.

This was a significant rights grab, and the fact that it has been quietly done away with should discourage other states from following suit. 

So, even though the larger issues in the case are still being debated and discussed, there’s at least one victory that can be celebrated. 

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