Blackbeard resurfaces as Supreme Court hears N.C. copyright case

Documentarian Rick Allen tells the Supreme Court he ought to be paid after he says North...
Documentarian Rick Allen tells the Supreme Court he ought to be paid after he says North Carolina 'pirated' the photos and video he captured of Blackbeard's sunken ship (Source: Gray DC).(GRAYDC)
Published: Nov. 5, 2019 at 4:16 PM EST
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The Supreme Court grapples with a case out of North Carolina Tuesday. Experts say it has everything, from messy constitutional debates to the most-infamous pirate to ever roam the high seas.

Five days after Halloween, there’s a pirate-theme in front of the nation’s highest court, with costumes and Jolly Rogers. Photographer Rick Allen argues the state of North Carolina pirated pictures and videos he captured as researchers combed over the infamous Blackbeard’s sunken ship.

"This has really been a surreal day," said Allen after oral argument.

Cameras aren’t allowed in the court, but we watched on as the nine justices took up a narrow question: does the constitution allow copyright holders like Allen to sue states in federal court?

As he left the courthouse, Allen’s attorney said he felt confident in their argument: that the answer is 'yes'. "I won’t hazard to make any predictions, I’ll just say it was clear to everybody that the justices came in prepared, just as we would expect, great questions for both sides," said Derek Shaffer, "they’re clearly wrestling with these important issues, that’s all we could ask for."

Allen spent 20 years behind the camera recording researchers as they scoured The Queen Anne’s Revenge 30 feet below the surface. The state published some of them online, in print, and displayed portions in museums.

North Carolina Deputy Solicitor General Ryan Park represented the state in court. We caught up with him after the day's arguments.

"Can’t comment on anything related to the merits," he said in answer to our questions about the legal aspects of the case.

But in his time in front of the justices, he essentially argued Congress didn’t lay the necessary constitutional foundation to force states into federal court – from which states are largely immune.

Park did say if the state loses, it may lose a piece of its history as well. "The Cultural Resources Department will pay a damages judgement here if it’s awarded, and that would affect its ability to continue its important work recovering the shipwreck," he said.

Allen’s work isn’t the only copyright material the state uses. It publishes academic reports with key findings for North Carolina, and prisoner movie night may be cancelled if the state has to pay what anyone else would for the films.

The Supreme Court may not decide this case until next summer. When it does, that’s when we’ll get a better idea of what will happen to all the content the state is currently using – in museums, print, and online.

If the Court rules in Allen’s favor, it likely won’t be the end of his legal road.

His initial case – asking the state to pay him back for what it used – would resurface.

Copyright 2019 Gray DC. All rights reserved.

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