Blackbeard Ship Video Copyright Row Over Goes to High Court (1)

The Supreme Court will hear a videographer’s appeal of a ruling involving Blackbeard’s pirate ship, one he said could allow states to infringe copyright with impunity.

Videographer Rick Allen sued North Carolina for posting his company’s underwater footage of the Queen Anne’s Revenge in violation of his contract with the state. But the U.S. Court of Appeals for the Fourth Circuit, joining other circuits, said Supreme Court precedent invalidates a 1990 federal law that said states can be sued for copyright infringement.

The case gives the high court a chance to weigh the 11th Amendment, which protects states’ sovereignty, against Congress’ constitutional authority. Article I grants Congress power to protect intellectual property and the 14th Amendment lets it legislate against due process violations by states.

More broadly, the case could become a battle over whether Congress’ enumerated Article I powers inherently override state sovereign immunity. Allen argued in his Supreme Court petition that states waived sovereign immunity over intellectual property rights when they ratified the Constitution, which says Congress can grant patents and copyrights.

The case involves the contours of constitutional protection of intellectual property rights, according to George Mason University intellectual property law professor Adam Mossoff.

Salvaging a Case

Salvage company Intersal Inc. discovered the ship in 1996 off the North Carolina coast and hired Allen’s company, Nautilus Productions LLC, to document the wreck and salvage effort. Allen spent more than a decade accumulating footage and images. In 2013 he objected to North Carolina posting some of his work online in.

The state and Allen entered into an agreement dividing his work into commercial and non-commercial work, but Allen said the state continued to infringe by posting work designated as commercial. North Carolina also passed a law in 2015 that made shipwreck footage in the state’s custody public record.

Allen sued in 2015, and a court rejected the state’s motion to dismiss, saying states could be sued for copyright infringement under the Copyright Remedy Clarification Act of 1990. The Fourth Circuit reversed, finding the CRCA unconstitutional under the 11th Amendment. It cited the Supreme Court’s 1996 ruling in Seminole Tribe v. Florida, which said Congress couldn’t rely on Article I powers to abrogate state sovereignty.

The Fourth Circuit also cited the high court’s 1999 ruling in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank. In that decision, the justices applied Seminole Tribe to invalidate the patent version of the CRCA. Florida Prepaid also had restated precedent that using the 14th Amendment to abrogate state immunity requires a pervasive problem and narrowly tailored solution. The Fourth Circuit found that Congress demonstrated neither.

Allen argued in his petition that the Supreme Court “recognized it had gone too far” in 2006 in Central Virginia Community College v. Katz, which said Congress could rely on Article I to abrogate states’ immunity in some bankruptcy cases. He reiterated his argument that the 14th Amendment separately gave Congress authority to pass the CRCA, and that the patent law struck down in Florida Prepaid rested on a slimmer record of state infringement than the CRCA.

North Carolina reiterated the Fourth Circuit’s finding that “Katz was not intended to overrule Seminole Tribe” and came in a “distinguishable context that was unique to the bankruptcy clause” of Article I. Allen said North Carolina “offers no explanation” why the bankruptcy clause is “unique.” He said no court has evaluated the intellectual property clause the way Katz analyzed the history of it.

What’s Next

Ralph Oman, the Register of Copyrights when the CRCA was written, said in a high court brief that he cited substantial evidence of states’ copyright violations while reporting to Congress about the proposed law’s constitutionality.

A trio of scholars argued in their own brief that the history of the Constitution’s drafting supported the argument that states waived immunity in the intellectual property clause.

Paul Justin Heald, a copyright professor at the University of Illinois, said he was surprised cert was granted on what he thought “was a pretty settled issue.” The U.S. government expressly stopped defending the CRCA’s constitutionality in 1999, shortly after Florida Prepaid. Heald said trying to separate the patent and copyright laws would have to be “pretty technical, and kind of picky.”

The justices could go a number of directions with the case, according to Michael L. Wells, a University of Georgia law professor who has written about property and due process. Wells said they may want to take up the question of whether intellectual property should be treated like any other property Congress has the power to protect under the 14th Amendment, and what the criteria would be for doing so.

Wells noted that Justices Clarence Thomas and John G. Roberts Jr. dissented in Katz, suggesting they remain behind Seminole Tribe‘s strong stance on the 11th Amendment. He said conservative Justices Neil M. Gorsuch and Brett M. Kavanaugh could be wild cards.