Nearly 300 years ago, the infamous Pirate Blackbeard's flagship, the Queen Anne's Revenge (QAR), sank off the coast of North Carolina near Beaufort Inlet. A private salvage firm, Intersal, found a cluster of cannons and other artifacts in late 1996 on the seabed near the inlet. State archeologists later confirmed it was the wreckage of the QAR. What appears to be an unprecedented legal battle over who owns the copyright to a treasure trove of video footage and photographs documenting the recovery of the QAR over nearly 20 years is underway.
Since 1998, Photographer Rick Allen, owner of Nautilus Productions LLC, and other videographers have been battling strong currents and poor visibility 28 feet down to document the recovery of the ship's remains. Allen's work has appeared on television networks, including ABC and CBS, and in documentaries on the shipwreck by the BBC and Discovery Channel. In addition, the video and still images were made available to scientists and the citizens of North Carolina at no cost to the taxpayer, as Allen repeatedly points out.
In 2013, Allen accused the state of copyright infringement for uploading his video to the internet without his permission and allowing third parties to duplicate the copyrighted material without consent. The state and Department of Natural and Cultural Resources (DNCR) signed a settlement later that year with Allen and Intersal that included a $15,000 cash payment to Nautilus Productions for copyright infringement. The state also agreed to return all video, still images, and other media that did not have a time code stamp or watermark, but that was not the end of it.
In December 2015, Allen and Nautilus Productions filed suit in federal court against the state of North Carolina, Governor Pat McCrory, the Department of Natural and Cultural Resources and some of its top officers, seeking unspecified damages, punitive damages, and more for copyright infringement in what the lawsuit alleges was “a conspiracy to steal copyrights and misuse copyrighted photographs and video.” The lawsuit also accuses the state of unfair and deceptive trade practices.
Through his lawsuit, Allen is asking the court to declare a 2015 North Carolina law, HB 184 (called “Blackbeard's Law” by some) unconstitutional and seeks an injunction prohibiting enforcement of the law. It declares photos, video, and other media of a derelict vessel or shipwreck in the custody of a state agency public record without limitation. Allen argues that makes all his work documenting the QAR available to anyone without compensation, in violation of federal and international copyright law. North Carolina owns the QAR because the wreck lies in state waters within three miles from shore.
North Carolina is facing a separate multi-million dollar lawsuit filed by Intersal for breach of contract over the sharing of proceeds and rights to media and artifacts from the shipwreck and copyright infringement. In his lawsuit, Allen claims the state is already using "Blackbeard's Law" as a defense against the Intersal lawsuit. The state isn't talking about these lawsuits publicly. But since Allen filed his suit, a nonprofit set up to raise funds for the state's QAR project, Friends of the Queen Anne's Revenge, which is also named in the lawsuits, filed for dissolution in March. Allen filed an amended complaint in March, adding some 80 additional alleged violations of copyright infringement. Allen's only comment on the case remains: "the same copyright law applies to Disney that applies to Nautilus Productions. Either there is federal legal protection for intellectual property rights or there isn't."
You can read Rick Allen's amended lawsuit here.
Images used with permission of Cindy Burnham.
Good for him, I hope he takes them to the cleaners.
First, it was NC stupid bathroom policy, now the state legislature seems to enact laws to circumvent their previous copyright failure in order to serve only themselves and possibly undermine the federal law of copyright ownership. I hope the state government loses BIG TIME in this to set a precedent.
So the State and politicians are thieves? What else is new?
Hope the court nails them to the wall and gives the full $150,000 per image for copyright violations.
It seems like this is yet another case of people needing an education in copyright....
Unfortunately it seems that photographers and videographers are the ones that are having to provide that lesson each time.