BEAUFORT — The U.S. Supreme Court has agreed to hear an appeal by a videographer accusing the N.C. Department of Natural and Cultural Resources and the state of North Carolina of copyright infringement regarding images of the Queen Anne’s Revenge.
Rick Allen, co-owner of Nautilus Productions LLC, based in Fayetteville, filed an appeal with the U.S. Supreme Court in January to reverse a lower court’s decision in July 2018 that favored the state. In an email to the News-Times, Mr. Allen said he was notified Monday the court will hear his case.
Oral arguments, which are yet to be scheduled, will be held in Washington, D.C. Nautilus Productions LLC is represented by Derek Shaffer and Todd Anten of Quinn Emanuel, Susan Freya Olive and David McKenzie of Olive and Olive, P.A. and Joe Poe of the Poe Law Firm, PLLC.
“We are obviously gratified that the United States Supreme Court has agreed to hear our case,” Mr. Allen said. “The Constitution of the United States of America expressly empowers Congress to grant copyright holders ‘the exclusive right to their respective writings and discoveries.’ We look forward to making our case to the Supreme Court as to why it was within Congress’s constitutional authority to hold states liable for their acts of copyright infringement.”
In response, Public Information Officer Michele Walker with the N.C. DNCR stated in an email, “No comment on ongoing litigation.”
Nautilus Productions LLC and Mr. Allen originally filed the lawsuit, Allen v. Cooper, Dec. 1, 2015, in federal court. Mr. Allen contended North Carolina pirated footage he had taken of Blackbeard’s flagship, the Queen Anne’s Revenge. Then, the state passed “Blackbeard’s Law” to justify their actions, according to Mr. Allen.
“The issue is 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,” Mr. Allen said. “North Carolina maintains that sovereign immunity prevents it from being held liable for damages, as other copyright infringers would be.”
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 QAR shipwreck, discovered by Intersal Inc., a maritime research company based in Boca Raton, Fla., in November 1996 in Beaufort Inlet.
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, which heard the appeal in May.
A decision regarding the Intersal appeal is pending. The state of North Carolina, the DNCR and the Friends of Queen Anne’s Revenge nonprofit, which dissolved its corporation after the lawsuit was filed, are also defendants in that lawsuit.
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.
Regarding Mr. Allen’s claims of copyright infringement, the U.S. 4th Circuit Court of Appeals ruled in July 2018 in favor of the state, reversing a previous decision made by a district court finding 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 the 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 “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 of 2018 to the 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.