⚓ North Carolina Law Claims Shipwreck Images, Video & Documentary Materials In Its Custody Are NC Property
On August 18, 2015 NC Governor Pat McCrory signed HB 184 (Section 121-25 (b)), into law (SL 2015-218). “Blackbeard’s Law,” originally proposed by the North Carolina Department of Natural and Cultural Resources (NCDNCR), makes;
“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.”
The passage of “Blackbeard’s Law” prompted a federal lawsuit against the Governor and the State include employees of the North Carolina Department of Natural and Cultural Resources (NCDNCR), the Friends of Queen Anne’s Revenge nonprofit in Beaufort, North Carolina and Susan Kluttz, Karin Cochran, Kevin Cherry, Cary Cox, Stephen Claggett and John “Billy Ray” Morris.
In July of 2016 the North Carolina Legislature, in H1030, 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.
References
NC Legislature Links – HB184 (NCLeg page – S.L. 2015-218) & H1030 (NCLeg page – S.L. 2016-94)
Modern Day Piracy on the Queen Anne’s Revenge
On December 1, 2015, Nautilus Productions, which has spent almost two decades documenting the retrieval of Blackbeard’s pirate flagship, the Queen Anne’s Revenge, filed a Federal lawsuit against Gov. Pat McCrory, the State of North Carolina, the Friends of Queen Anne’s Revenge nonprofit, and others, in the U.S. District Court for the Eastern District of North Carolina over Blackbeard’s Law and copyright infringement. A hearing date is pending in the United States Court of Appeals for the Fourth Circuit. A separate lawsuit against the state of North Carolina, filed by Intersal, Inc., which found the Queen Anne’s Revenge, continues in State business court.
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.
UPDATE: On March 23, 2017 U.S. District Court Judge Terrence W. Boyle rules the lawsuit for copyright infringement and for a declaration of the statute’s invalidity will move forward in Federal court.
UPDATE: April 21, 2017 – The State of North Carolina, Kevin Cherry, Stephen R. Claggett, Karin Cochran, Roy A. Cooper, Cary Cox, Susan Wear Kluttz, John W. Morris & North Carolina Department of Natural and Cultural Resources file an interlocutory appeal of Judge Boyle’s decision. Nautilus files a cross appeal. A hearing date is set for March 20, 2018 in the United States Court of Appeals for the Fourth Circuit.
UPDATE: July 11, 2018 – 4th Circuit issues an unfavorable ruling in case and declines petition for en banc appeal. Nautilus adds Quinn, Emanuel, Urquhart & Sullivan, LLP to its legal team in preparation for petition of a writ of certiorari with the Supreme Court of the United States.
UPDATE: January 4, 2019 – Nautilus Productions LLC files a Petition for Writ of Certiorari with the Supreme Court of the United States.
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
Copyright Alliance – The Copyright Alliance is the unified voice of the copyright community, representing the interests of thousands of individuals and organizations across the spectrum of copyright disciplines.
DOCUMENTS
Lawsuit – Amended Complaint, Judge’s Order on Motion To Dismiss, Nautilus Cross Appeal, Nautilus Reply Brief, 4th Circuit Opinion, Petition for Rehearing En Banc, Allen v. Cooper_Petition for Certiorari (No. 18-877)
Amicus Curiae – Copyright Alliance, Register of Copyrights, Copyright Comment Letters, Nimmer, Oman, Young & Bynum
NCDOJ Copyright Opinion – Attorney General Josh Stein, 1993
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)
NCDNCR – Queen Anne’s Revenge Fact Sheet
Friends of Queen Anne’s Revenge (FoQAR) nonprofit – Articles of Dissolution, State Filings, 2013 NCDNCR FOQAR MOA, 2013 NCDNCR FOQAR Revised MOA, 2015 NCDNCR FOQAR MOA
US Government Copyright Basics – PDF download, Copyright Remedy Clarification Act, Copyright Remedy Clarification Act (CRCA)
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Press
Videographer sues NC over rights to Blackbeard shipwreck footage – News & Observer
Photographer suing state over Blackbeard footage – WRAL-TV
Fayetteville company sues state in dispute about Blackbeard’s pirate ship – Fayetteville Observer
State Said to Plunder Blackbeard Wreck Pix – Courthouse News
Treasure hunter that found Blackbeard’s pirate ship sues state for $8.2M – Fayetteville Observer
Blackbeard’s Law would clarify control of media rights to shipwrecks – News & Record
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
Blackbeard and the Modern Day Pirates – Hugh Stephens Blog
Usurpation of Personal and Intellectual Property Rights – Gary Gentile
U.S. Copyright Law Makes It Illegal To Remove A Watermark – Photo Attorney
