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15 August 2019CopyrightSarah Morgan

Fleet of copyright groups support pirate ship photographer before SCOTUS

Pirate ship photographer Frederick Allen has received a welcome boost in his lawsuit before the US Supreme Court, with the filing of numerous amicus briefs from copyright groups.

This week, more than a dozen groups including The Copyright Alliance and non-profit the Washington Legal Foundation filed briefs in support of the photographer, who has urged the US’s highest court to revive the Copyright Remedy Clarification Act of 1990 (CRCA) and its abrogation of state immunity.

‘Blackbeard’s Law’

Photographer and videographer Allen owns and commercialises copyrights in videos and still images of the wreck and salvage efforts of Queen Anne’s Revenge, Blackbeard’s flagship which ran aground in North Caroline in 1718. The wreck was discovered in 1996.

In October 2013, North Carolina and its Department of Natural and Cultural Resources uploaded and posted some of Allen’s work online. A settlement agreement between the parties provided that the state wouldn’t infringe the works going forward.

But, the state then passed Blackbeard’s Law, a statute which made public “all photographs, video records, or other documentary materials of a derelict vessel or shipwreck”.

Allen and his co-owned company Nautilus Productions sued the state in the US District Court for the Eastern District of North Carolina for copyright infringement.

North Carolina moved to dismiss the claim, on the ground that the Eleventh Amendment’s provision of state sovereign immunity shields it from federal court lawsuits.

The district court sided with Allen, holding that the CRCA validly abrogated the state’s sovereign immunity.

However, North Carolina appealed against the decision and the US Court of Appeals for the Fourth Circuit reversed the lower court’s ruling, concluding that the 1990 act didn’t validly abrogate immunity.

This time, Allen appealed against the decision in January this year, filing a petition for certiorari at the Supreme Court.

“Absent this court’s review, hard, careful work by the legislature will be thwarted and creators of original expression will be left without remedy when states trample their federal copyrights,” said the brief.

Five months later, the Supreme Court granted the petition, agreeing to address whether copyright owners can sue states for infringement under the 1990 act.

Blood, sweat and tears

In a joint brief, the Copyright Alliance, an organisation representing more than 1.8 million creators and 13000 organisations, and business federation the US Chamber of Commerce opined that the US needs a copyright system that allows a creator to seek redress in court, regardless of who perpetrates the infringement.

“Congress recognised that allowing states to infringe copyrights with impunity undermines the basic objectives of copyright law,” said the brief.

The associations added that “ill-considered lower court rulings” have effectively nullified the CRCA by lower courts, and has resulted in an escalation of copyright infringement by state actors.

“Roughly a decade after the CRCA’s enactment, Congress heard extensive testimony reporting many instances of egregious copyright abuse by states. And a recent compilation identified more than 150 copyright cases filed against states since the year 2000,” the brief added.

In a separate brief, the Washington Legal Foundation claimed: “States increasingly claim the right to infringe copyrights with impunity, relying on this court’s erratic sovereign immunity jurisprudence to avoid all accountability.”

The foundation warned that allowing states to flout federal copyright law would “erode the incentive for authors to put their blood, sweat and tears into creating original works”.

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More on this story

Copyright
6 November 2019   The US Supreme Court has been urged to give copyright owners the right to sue state institutions for unlicensed use of their work.
Copyright
23 March 2020   The US Supreme Court has declared that state institutions can’t be sued for copyright infringement, in a case stemming from the use of videos and images featuring the wreck of Blackbeard’s ship, Queen Anne’s Revenge.