NC Governor McCrory Faces Federal Lawsuit Over “Blackbeard’s Law” & Copyright Infringement
On December 1, 2015, the videographers who have spent almost two decades documenting the retrieval of Blackbeard’s pirate ship, the Queen Anne’s Revenge (QAR) filed a Federal Lawsuit against Gov. Pat McCrory, the State of North Carolina, and others, in the U.S. District Court for the Eastern District of North Carolina. The lawsuit filed by Nautilus Productions, LLC and its owner Rick Allen alleges that the recently passed “Blackbeard’s Law” is unconstitutional, and that the defendants have infringed copyrights owned and licensed by Allen and Nautilus, violated other federal laws, and engaged in unfair and deceptive trade practices. Defendants in addition to the Governor and the State include employees of the North Carolina Department of Natural and Cultural Resources (NCDNCR), and the Friends of Queen Anne’s Revenge nonprofit in Beaufort, NC. The plaintiffs include; Susan Kluttz, Karin Cochran, Kevin Cherry, Cary Cox, Stephen Claggett and John “Billy Ray” Morris.
Modern Day Piracy On The Queen Anne’s Revenge
This is not the first time the State has been in trouble over the project. Earlier allegations of copyright infringement resulted in a 2013 Settlement Agreement, and payment of $15,000 to Nautilus and Allen as compensation for copyright infringement. Then, in August of 2015, Blackbeard’s Law was passed, stating that videos, photos and other documentary work in the State’s possession are now “public documents” and that there are no restrictions on their use. It also said that any agreement to the contrary would be invalid.
Allen immediately noted the problem and documented new copyright infringements which occurred after the 2013 Settlement Agreement. He was also aware of another lawsuit filed by the shipwreck’s discoverer, Intersal, Inc. that alleged violations of the Settlement Agreement. “The State of North Carolina passed Blackbeard’s Law to justify the further illegal taking of my intellectual property and abrogate the 2013 Settlement Agreement.”
Senator Norman Sanderson, who pushed the proposal into another bill pending before the Senate in July of 2015, admitted in July that he and Senator Jim Davis introduced the bill at the request of the Department of Natural and Cultural Resources, and said, “I’m sure it was brought forth because of the lawsuit.”
On August 18, 2015 NC Governor Pat McCrory signed HB 184 (Section 121-25 (b)), into law (SL 2015-218), asserting State control over “All photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record pursuant to G.S. 132-1. There shall be no limitation on the use of or no requirement to alter any such photograph, video recordings, or other documentary material, and any such provision in any agreement, permit, or license shall be void and unenforceable as a matter of public policy.” Just weeks after that signing, NC DNCR posted videos and images that illegally incorporated Nautilus’ digital media and violated Nautilus Productions’ registered copyrights and intellectual property rights on its State Government Social Media Archive.
“It is outrageous that the agency charged with promoting the arts in North Carolina does so through the misuse of its citizen’s property. Blackbeard’s Law affects every artist, writer, photographer, producer, historian and donor in N.C. and sets a dangerous precedent for N.C. government overreach,” said Allen.
Since 1998 Nautilus Productions has been the official video crew for the Blackbeard’s Queen Anne’s Revenge Shipwreck Project. During that time Nautilus Productions has documented on video archaeological activities and the recovery of artifacts from Blackbeard’s infamous shipwreck for the benefit of, and at zero cost to, the taxpayers of North Carolina. According to State Archaeologist Steve Claggett, Rick Allen of Nautilus Productions “has worked energetically and enthusiastically in conditions that often are unfavorable, uncomfortable, and challenging for diving, filming, or anything else. Rick is totally professional and a great companion for our research crews, visitors, and media representatives. When viewers see underwater footage of the Blackbeard shipwreck site on local TV, or in documentaries by UNC-TV, the BBC, History Channel, Discovery Channel, or others, that footage was shot by Rick Allen.” This footage has been provided to scientists, researchers and the NC Maritime Museum for its Queen Anne’s Revenge exhibit at no cost to NC taxpayers. Literally hundreds of media outlets and broadcasters have incorporated Nautilus’ footage in news stories, videos and documentaries seen around the globe, again at zero cost to NC taxpayers.
UPDATE: On March 14, 2016 the Friends of Queen Anne’s Revenge nonprofit in Beaufort, NC registered it’s destruction filing with the North Carolina Secretary of State and was officially dissolved. Another lawsuit against North Carolina, filed by Intersal, Inc. which found the Queen Anne’s Revenge, is pending in state business court.
UPDATE: On July 14, 2016 Gov. Pat McCrory signed into law H1030, in which the North Carolina Legislature amended “Blackbeard’s Law” to read, “All photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record pursuant to Chapter 132 of the General Statutes.” The change dropped the “no limitation on the use of or no requirement to alter any such photograph, video recordings, or other documentary material, and any such provision in any agreement, permit, or license shall be void and unenforceable as a matter of public policy” section of the law.
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
“Intellectual property is the gold of the digital age.” – Omar Sobrino
Lawsuit/Amended Complaint – Amended Complaint, 5:15-cv-627
2013 Settlement Agreement – Mediated Settlement Agreement Signed w/1998 Memorandum of Agreement
NC Legislature Links – HB184 (NCLeg page – S.L. 2015-218) & H1030 (NCLeg page – S.L. 2016-94)
Queen Anne’s Revenge Fact Sheet – NCDNCR
US Government Copyright Basics – PDF download
Videographer sues NC over rights to Blackbeard shipwreck footage – News & Observer
Fayetteville company sues state, officials over Blackbeard shipwreck videos and photos – Fayetteville Observer
Friends group calls it quits on fundraising – Carteret County News-Times
QAR videographer files federal case – Carteret County News-Times
Blackbeard and the Modern Day Pirates – Hugh Stephens Blog
State Said to Plunder Blackbeard Wreck Pix – Courthouse News
US State Changes Law To Steal Pirate Video – Commsrisk
‘Blackbeard’s Law’ to clarify public access to shipwreck photos, video – Fayetteville Observer
Controversy over Blackbeard’s Queen Anne’s Revenge continues – Public Radio East
Battle Over Shipwreck Photos Brews in N.C. – Courthouse News
NC Lawmakers enter legal battle over Blackbeard’s ship – Asheville Citizen-Times
Usurpation of Personal and Intellectual Property Rights – Gary Gentile
Land Brigands – Thatcher: The unauthorized biography of Blackbeard the pirate
Common Cents, March 2016, Mark Loundy – National Press Photographers Association
Videographer sues NC over rights to Blackbeard shipwreck footage – Scholarship Easy
U.S. Copyright Law Makes It Illegal To Remove A Watermark – Photo Attorney
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