SCOTUS considers ‘Blackbeard’s Law’ in shipwreck copyright suit
The US Supreme Court has been urged to give copyright owners the right to sue state institutions for unlicensed use of their work.
The country’s highest court yesterday, November 5 heard oral arguments in Allen v Cooper, a dispute between a pirate ship photographer and the state of North Carolina over photographs and videos of the wreck of Blackbeard’s ship.
Photographer and videographer Rick Allen owns the copyright for his efforts to document the wreck of Queen Anne’s Revenge, which the infamous pirate ran aground in North Carolina in 1718.
The dispute before the Supreme Court arose after North Carolina’s Department of Natural and Cultural Resources uploaded a selection of Allen’s work online in 2013.
The parties initially agreed a settlement under which the state would not use Allen’s work in future. But that was before North Carolina passed what is now known as “Blackbeard’s Law”, which made all documentary material of the wreck public property in 2015.
Allen’s company Nautilus Productions claims that the state passed the law to “justify its misuse” and allow it to repeat the infringement going forward.
The photographer was initially successful in suing the state for copyright infringement at the US District Court for the Eastern District of North Carolina.
But North Carolina was victorious on appeal to the US Court of Appeals for the Fourth Circuit, which held that the state was immune under the doctrine of state sovereign immunity.
Allen had argued that the Copyright Remedy Clarification Act of 1990 (CRCA) waived the state’s right to immunity in the case of copyright infringement suits.
The ‘Intellectual Property Clause’
But the Fourth Circuit, in a reversal of the district court’s finding, said the CRCA did not permit Congress to use article 1, section 8, clause 8 of the US Constitution to abrogate, or waive, state sovereign immunity.
This clause, known as the ‘Intellectual Property Clause’, gives Congress the power to: “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
Allen argues that the “securing...exclusive right” wording of the clause means that the states waived their immunity from copyright infringement.
The photographer has also argued that section five of the Fourteenth Amendment to the constitution “specifically authorises Congress to protect property rights from state deprivation”.
Speaking to WIPR, James Lovsin, partner at McDonnell Boehnen Hulbert & Berghoff, said there was a “strong chance” that the Supreme Court could rule in Allen’s favour under the Fourteenth Amendment.
“This would be a narrower ground than deciding abrogation under [the IP clause],” Lovsin said.
A ruling in favour of Allen could be a boon to copyright owners, he said, noting that “the possibility of infringement suits may increase rights owner’s ability to license their works”.
The Supreme Court yesterday heard arguments after Allen successfully petitioned for certiorari.
As previously reported by WIPR, Allen has attracted the support of copyright owner groups, such as the Copyright Alliance, in the form of amicus briefs.
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