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Blackbeard's Law

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On August 18, 2015, then North Carolina Governor Pat McCrory (R) signed "Blackbeard's Law," N.C. General Statute §121-25(b), into law. The statute stated that, "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 the 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."[1] The statute was inserted into another bill by Representatives Norman Sanderson (R - Pamlico) and Jim Davis (R - Macon) at the request of the North Carolina Department of Natural and Cultural Resources (NCDNCR).[2] One year later, the North Carolina Legislature amended the statute 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."[3] The moniker "Blackbeard's Law" refers to the pirate Blackbeard and was first penned by reporter Paul Woolverton of the Fayetteville Observer.[4]

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In 2013 and 2015, the state government of North Carolina uploaded Nautilus Productions videos of the wreck of the Queen Anne's Revenge to YouTube and the NC State Government Website Archives & Access Program Social Media Archive without permission. Before posting the videos detailed in the litigation, the North Carolina Legislature passed "Blackbeard's Law", N.C. General Statute §121-25(b).[5] As a result, on December 1, 2015, Nautilus, which had documented the shipwreck recovery for nearly two decades, filed suit in federal court against North Carolina, NCDNCR and the Friends of Queen Anne's Revenge non-profit over copyright violations and the passage of "Blackbeard's Law" by the North Carolina legislature.[6][7][8]

On November 5, 2019, the U.S. Supreme Court heard oral arguments in Allen v. Cooper.[9][10][11][12] During oral arguments, Justice Sonia Sotomayor opined that, "the Blackbeard law does trouble [her] deeply."[13]

On March 23, 2020, the Supreme Court ruled in favor of North Carolina and struck down the Copyright Remedy Clarification Act, which Congress passed in 1989 to attempt to curb such infringements of copyright by states.[14][15][16]

As a result of the ruling, Nautilus filed a motion for reconsideration in the United States District Court for the Eastern District of North Carolina.[17] On August 18, 2021, Judge Terrence Boyle granted the motion for reconsideration which North Carolina promptly appealed to the United States Court of Appeals for the Fourth Circuit.[18] The 4th Circuit denied the state's motion on October 14, 2022.[19] Nautilus then filed their second amended complaint on February 8, 2023, alleging Fifth and Fourteenth Amendment violations of Nautilus' constitutional rights, additional copyright violations, and claiming that North Carolina's "Blackbeard's Law" represents a Bill of Attainder.[20][21]

In a press release Nautilus noted that, "North Carolina...and state entities can sue others for copyright infringement and damages. However, U.S. citizens and corporations are legally barred from suing states or state entities for those very same copyright infringements or for damages!”[22] Eight years after the law's passage, on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing Blackbeard's Law.[23]

References

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  1. ^ "An act to allow the department of cultural resources, office of archives and history, to use the net proceeds of the sale of artifacts for maintenance or conservation of other artifacts; to clarify the process for transferring title of unclaimed or undocumented property loaned to museums and historical repositories to those museums and historical repositories; to set a time limitation on confidentiality of records; to clarify that photographs and video recordings of derelict vessels or shipwrecks are public records when in the custody of North Carolina agencies; and to provide that certain merchandise credits are not deemed abandoned property" (PDF). ncleg.gov. North Carolina. Retrieved 3 June 2023.
  2. ^ Moritz, John (29 July 2015). "Lawmakers enter legal battle over Blackbeard's ship". Citizen Times. Associated Press. Retrieved 3 June 2023.
  3. ^ "AN ACT TO MODIFY THE CURRENT OPERATIONS AND CAPITAL IMPROVEMENTS APPROPRIATIONS ACT OF 2015 AND TO MAKE OTHER CHANGES IN THE BUDGET OPERATIONS OF THE STATE" (PDF). ncleg.gov. North Carolina. Retrieved 3 June 2023.
  4. ^ Woolverton, Paul (28 July 2015). "Blackbeard's Law would clarify control of media rights to shipwrecks". The Fayetteville Observer. Retrieved 3 June 2023.
  5. ^ "§ 121-25. License to conduct exploration, recovery or salvage operations" (PDF). ncleg.gov. North Carolina. Retrieved 25 May 2023.
  6. ^ "Allen v Cooper, et al". Supreme Court of the United States. Retrieved 22 June 2019.
  7. ^ Gresko, Jessica (3 June 2019). "High court will hear copyright dispute involving pirate ship". Associated Press. Retrieved 22 June 2019.
  8. ^ Woolverton, Paul (2 November 2019). "Pirate ship lawsuit from Fayetteville goes to Supreme Court on Tuesday". Fayetteville Observer. Retrieved 2 November 2019.
  9. ^ Murphy, Brian (5 November 2019). "How Blackbeard's ship and a diver with an 'iron hand' ended up at the Supreme Court". Charlotte Observer. Retrieved 16 November 2019.
  10. ^ Wolf, Richard (5 November 2019). "Aarrr, matey! Supreme Court justices frown on state's public display of pirate ship's salvage operation". USA Today. Retrieved 27 December 2019.
  11. ^ Livni, Ephrat (5 November 2019). "A Supreme Court piracy case involving Blackbeard proves truth is stranger than fiction". Quartz. Retrieved 27 December 2019.
  12. ^ Woolverton, Paul (5 November 2019). "Supreme Court justices skeptical in Blackbeard pirate ship case from Fayetteville". Fayetteville Observer. Retrieved 27 December 2019.
  13. ^ "Allen v. Cooper". Oyez.org. Oyez. Retrieved 3 June 2023.
  14. ^ "N.C. Gen Stat §121-25" (PDF). NCleg.gov. North Carolina. Retrieved 19 June 2020.
  15. ^ Adler, Adam (29 March 2020). "Blackbeard Just Broke Copyright Law, and Now States Are the Pirates". The Escapist. Retrieved 19 June 2020.
  16. ^ Allen v. Cooper, Text.
  17. ^ McKlveen, Gina (28 October 2022). "A North Carolina Filmmaker Continues to Challenge State Sovereign Immunity". Institute of Art & Law. Retrieved 24 March 2023.
  18. ^ "Reconsideration Granted" (PDF). Nautilus Productions. Retrieved 5 April 2023.
  19. ^ "4th Circuit Recon" (PDF). Nautilus Productions. Retrieved 5 April 2023.
  20. ^ "PLAINTIFFS' SECOND AMENDED COMPLAINT" (PDF). IPWatchdog. Retrieved 24 March 2023.
  21. ^ Barnes, Greg (14 February 2023). "Fayetteville's Blackbeard shipwreck filmmaker fires back in new court case". CityView. Retrieved 24 March 2023.
  22. ^ "Blackbeard Copyright Case Gets Second Chance in Federal Court". PRLOG. Nautilus Productions. Retrieved 27 October 2023.
  23. ^ "AN ACT TO MAKE VARIOUS CHANGES TO THE STATUTES GOVERNING THE DEPARTMENT OF NATURAL AND CULTURAL RESOURCES, AS RECOMMENDED BY THE DEPARTMENT" (PDF). ncleg.gov. North Carolina. Retrieved 21 July 2023.
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