Blackbeard’s Ship Embarks for Supreme Court in Video Piracy Case

WASHINGTON — The nine black-robed justices of the U.S. Supreme Court will soon navigate the treacherous legal waters around a sailing ship made famous in the 18th century by the notorious English pirate known as Blackbeard.

The filmmaker, Frederick Allen, has appealed a lower court’s ruling that North Carolina could not be sued under federal law for allegedly infringing his copyrights on five videos and a photograph of salvage operation for the ship in the Atlantic Ocean off the coast of Beaufort, North Carolina.

Though states typically are shielded from lawsuits under the U.S. Constitution through a form of protection known as sovereign immunity, the case hinges on whether the shield applies to copyright infringement. In 1990, the U.S. Congress passed a law allowing states to be held liable for illegal copying.

Blackbeard, whose name was Edward Teach, ran aground the Queen Anne’s Revenge, his flagship, on a sandbar 58 years before the United States declared independence from Britain. By law, the ship and its artifacts are owned by the state.

A private salvage company located the wreck in 1996. Allen and his firm, Nautilus Productions, documented the efforts by divers and archaeologists to recover artifacts. Allen obtained federal copyright registrations on the videos and still images.

Allen and Nautilus sued North Carolina in federal court after state officials used some of the documentary materials on YouTube and a state agency website. The state also passed a law converting the materials into public records.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out the case last year, ruling that Congress exceeded its powers in passing the 1990 Copyright Remedy Clarification Act as an attempt to override state sovereign immunity in copyright disputes.

Appealing to the Supreme Court, Allen said states are flagrantly infringing authors’ copyrights and invoking sovereign immunity as a way to avoid paying damages.

If the 4th Circuit’s decision is not overturned, Allen said in a legal filing, “creators of original expression will be left without remedy when states trample their federal copyrights.”

North Carolina Attorney General Joshua Stein emphasized the shipwreck’s historical and archaeological value and told the justices that the 1990 law is unconstitutional.

Blackbeard prowled the shipping lanes off the Atlantic coast of North America and throughout the Caribbean before being slain – shot, stabbed and decapitated – in 1718 during an encounter with British naval forces at North Carolina’s Ocracoke Inlet.

The justices will hear the case in their next term, which begins in October.