Videographer maintains state infringed on copyright

A cannon retrieved by state underwater archaeologists from the Queen Anne’s Revenge shipwreck in Beaufort inlet is hoisted aboard a research vessel during a previous dive expedition. A videographer has filed an appeal to the U.S. Supreme Court regarding a lower federal court’s decision that favored the State of North Carolina over alleged copyright infringement of the state’s use of his videos and photos from dive expeditions and research. (Cheryl Burke photo)

BEAUFORT — A videographer accusing the N.C. Department of Natural and Cultural Resources and the State of North Carolina of copyright infringement regarding images related to the Queen Anne’s Revenge has filed an appeal with the U.S. Supreme Court to reverse a lower court’s July 2018 decision that favored the state.

“After the (U.S.) 4th Circuit (Court of Appeals) ruling we engaged Quinn Emanuel (Quinn, Emanuel Urquhart & Sullivan, LLP of Los Angeles) to lead our appeal to the U.S. Supreme Court. Hopefully we’ll find out in March/April if the Supreme Court will take the case,” videographer Rick Allen, co-owner of Nautilus Productions, LLC, based in Fayetteville, stated in an email to the News-Times Friday.

In response, Michele Walker, public information officer for the department, stated Friday in an email to the News-Times that “… it is our policy not to comment on ongoing litigation.”

It’s been a long battle between Mr. Allen and the state regarding the use of video footage and images he captured during state dive expeditions and research on the Queen Anne’s Revenge shipwreck, flagship of the notorious pirate Blackbeard. The wreck was discovered in Beaufort Inlet by Intersal Inc., a maritime research company based in Boca Raton, Fla., in November 1996.

Intersal has also been involved in a lengthy lawsuit against the state regarding the use of its images. Intersal appealed an unfavorable ruling by a lower state court to the N.C. Supreme Court.

After Intersal discovered the QAR, the rights to the shipwreck, sunk June 10, 1718, were turned over to the state, and state underwater archaeologists and researchers have conducted many expeditions, retrieving thousands of artifacts. Many are on display at the N.C. Maritime Museum in Beaufort.

Nautilus Productions worked with the state and Intersal to document dive expeditions, and some of the company’s footage was used by the DNCR in tourism, promotional and educational materials.

As for the most recent actions regarding Mr. Allen’s allegations of copyright infringement, the U.S. 4th Circuit Court of Appeals ruled last July in favor of the State of North Carolina, reversing a previous decision made by a district court finding that the DNCR and officials infringed on his copyright.

The state maintains it had fair-use rights of the materials, but Mr. Allen filed a suit in 2015, claiming use of the materials violated federal copyright law.

He also claims a law adopted in 2015 by the General Assembly, and signed by former Gov. Pat McCrory, which states North Carolina has sovereign immunity related to use of his materials, is unconstitutional and is robbing him of income.

The legislation, known as “Blackbeard’s law,” states that “all photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck,” and “relics, artifacts or historic materials” in the custody of a state agency, shall be public record.

After a U.S. District Court ruled in March 2017 in favor of Nautilus, the state appealed in March 2018 to a federal court, maintaining it has qualified and legislative immunity and therefore cannot be sued by private parties for copyright infringement.

Mr. Allen insists he has a right to sue the state under the Copyright Remedy Clarification Act of 1990. He has sued the state, the DNCR, the governor in his official capacity and a number of department officials in their individual and official capacities.

However, the state, in court documents, has cited numerous previous cases where the courts found the clarification act was invalid, stating it is superseded by Article 1 of the U.S. Constitution, which prevents states from being the subject of lawsuits.

The state also maintains it did not use the copyrighted works for profit.

Contact Cheryl Burke at 252-726-7081, ext. 255; email Cheryl@thenewstimes.com; or follow on Twitter @cherylccnt.

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