U.S. Supreme Court justices struggled to navigate between the rights of states and individuals on Tuesday as they heard a documentary filmmaker’s bid to revive his lawsuit against North Carolina officials he has accused of unlawfully pirating his footage of notorious English pirate Blackbeard’s wrecked ship.
The justices heard arguments in filmmaker Frederick Allen’s appeal of a lower court’s ruling that North Carolina could not be sued under federal law for allegedly infringing his copyrights on five videos and a photo of the salvage operation for the Queen Anne’s Revenge, the ship that went down in 1718.
The justices sought to balance the rights of individuals to protect their creations through copyrights with the fact that states typically are shielded under the U.S. Constitution from lawsuits seeking damages through a form of protection known as sovereign immunity.
The case hinges on whether that shield applies to copyright infringement. In 1990, Congress passed a law allowing states to be held liable for illegal copying.
Blackbeard, whose name was Edward Teach, prowled the shipping lanes off the Atlantic coast of North America and throughout the Caribbean before being slain – shot, stabbed and decapitated – during an encounter with British naval forces at North Carolina’s Ocracoke Inlet.
Blackbeard ran the Queen Anne’s Revenge, his flagship, aground on a sandbar 58 years before the United States declared independence from Britain. By law, the ship and its artifacts are owned by the state.
A private salvage company located the wreck in 1996. Allen and his firm, Nautilus Productions, documented the efforts by divers and archaeologists to recover artifacts off the coast of Beaufort, North Carolina. Allen obtained federal copyright registrations on the videos and still images.
Allen and Nautilus sued North Carolina in federal court in 2015 after state officials used some of the videos on YouTube and a photo in a newsletter. The state also passed a law converting the materials into public records.
The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out the case last year, ruling that Congress exceeded its powers in passing the 1990 Copyright Remedy Clarification Act as an attempt to override state sovereign immunity in copyright disputes.
Appealing to the Supreme Court, Allen said states are flagrantly infringing on the copyrights of authors and invoking sovereign immunity as a way to avoid paying damages. But several justices appeared skeptical that there is evidence of widespread infringement by states. A study around the time the law was passed documented 16 violations over the prior decade.
“That wouldn’t strike me as a major national problem,” liberal Justice Elena Kagan said.
Liberal Justice Stephen Breyer expressed concern that a state, if immune from paying damages, could engage in brazen piracy such as streaming popular movies on a device and charging money for it.
Echoing Breyer’s point, conservative Justice Brett Kavanaugh added, “It could be rampant, states ripping off copyright holders.”
North Carolina Deputy Solicitor General Ryan Park said such a scenario would be extreme.
“I don’t think it’s respectful to the interests of state governments to say that they will infringe at will if damages liability is taken off the table,” Park said.
A ruling in the case is due by the end of June.