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Blackbeard Pirate Ship Video Case Tests Copyright Law (Correct)

Nov. 5, 2019, 9:45 AMUpdated: Nov. 5, 2019, 8:47 PM

A battle over who owns video footage of Blackbeard’s sunken pirate ship will revolve around novel constitutional questions during a U.S. Supreme Court oral argument.

Videographer Rick Allen claims the state of North Carolina used footage of the Queen Anne’s Revenge without his consent, but an appellate court ruled that the state has sovereign immunity from copyright infringement lawsuits. Allen and his supporters argue that multiple parts of the Constitution overrule states’ immunity rights.

The justices Nov. 5 will have to balance Congress’ Article I copyright authority, the 14th Amendment’s due process clause, and the 11th Amendment’s sovereign immunity language, in deciding the case.

“This case is filled with constitutional issues that haven’t been addressed before,” Scott Hastings, a constitutional law attorney at Locke Lord LLP in Dallas, said. Hastings wrote a friend-of-the-court brief supporting Allen.

‘Never Addressed’

Allen objected to North Carolina making more than a decade of his work available online in 2013. The state and Allen had reached an agreement separating commercial and noncommercial footage, but Allen said the state again posted commercial work. The state then passed a law in 2015 putting any shipwreck footage it had in the public domain, prompting Allen to sue.

The U.S. Court of Appeals for the Fourth Circuit ordered the district court to dismiss the case. The appeals court cited the Supreme Court’s 1996 ruling in Seminole Tribe v. Florida, which said Congress couldn’t rely on Article I powers to overcome state sovereignty.

Allen argued that the Supreme Court’s 2006 ruling in Central Virginia Community College v. Katz walked back its Seminole Tribe holding. The high court, in that bankruptcy case, said Article I did give Congress the power to overcome state immunity.

Allen also argued that the Fourth Circuit was wrong to strike down as unconstitutional the 1990 Copyrights Remedies Clarification Act (CRCA), which allowed states to be sued for copyright infringement. He said Congress passed the law specifically to address the problem of states infringing with impunity, and said the 14th Amendment gave it the authority to do so.

The record of states infringing copyrights separates the CRCA from the high court’s 1999 ruling in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which struck the patent version of the act as unconstitutional in light of Seminole Tribe and was also cited by the Fourth Circuit, Allen said.

“Sitting here now, I’m skeptical that the court would find abrogation under Article I,” James Lovsin, an intellectual property attorney at McDonnell Boehnen Hulbert & Berghoff LLP, said. “I think that’s less likely than the 14th Amendment right, because of the court’s precedents in Seminole Tribe and Florida Prepaid.”

Hastings said he thinks both of Allen’s theories have merit. He also said that under a third theory involving the 14th Amendment, the justices could find North Carolina’s actions violated the 14th Amendment in this particular case rather than finding Congress could impose the CRCA. In any case, the case will break new ground, he said.

“The relationship between sovereign immunity and copyright is something the Supreme Court has never addressed,” Hastings said.

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com