Queen Anne's Revenge

David Moore, an underwater archaeologist with the North Carolina Maritime Museum, measures one of the anchors at the site of the Queen Anne’s Revenge wreck.

A lawsuit about Blackbeard's pirate ship was rejected by the U.S. Supreme Court on Monday in a defeat for Fayetteville videographer Rick Allen and others who make videos, photos, computer software and other intellectual property.

Allen operates Nautilus Productions, a Fayetteville-based videography company that specializes in underwater photography. He had sued the state of North Carolina for copyright infringement. His case was argued before the Supreme Court in November.

Allen had been sharing his work with the state to assist research of the Blackbeard shipwreck. But he put limits on the use to protect the royalties he could make in the commercial market.

Allen contends the state illegally published five videos and a photo he made of the wreck of the Queen Anne's Revenge, Blackbeard's flagship, and so he sued in 2015 for copyright infringement.

Allen and the state previously had a copyright dispute over its use of his videos and it settled that dispute out of court in 2013 for $15,000.

The Supreme Court unanimously said Monday that state governments are immune from copyright lawsuits under the concept of sovereign immunity — that, except in limited circumstances, the governments can't be sued unless they agree to be sued. Sovereign immunity is guaranteed by the 11th Amendment to the U.S. Constitution.

"After this ruling, and you're an artist and your painting's in the North Carolina Museum of Art or you post a photo of a North Carolina lighthouse on your website or you write a piece of music and they're playing it in a North Carolina museum, the state has every right to take it and infringe on your copyright," Allen said. "It's open season on intellectual property owners now."

North Carolina Attorney General Josh Stein praised the ruling.

"I am pleased by the Supreme Court's decision in favor of North Carolina in Allen v. Cooper," Stein said in a written statement. "In today's ruling, the Court unanimously upheld longstanding precedents recognizing that all States retain certain core aspects of sovereignty, including sovereign immunity from copyright lawsuits.

"My office looks forward to continuing to work with the North Carolina Department of Natural and Cultural Resources as it continues to recover, preserve and educate the public about Blackbeard's historically important shipwreck," Stein said in the statement.

In Monday's ruling, Associate Justice Elena Kagan said Congress could write a law to create options for people to sue states for copyright infringement.

Congress passed such a law in 1990, the Copyright Remedy Clarification Act. Allen tried to use that law to advance his case. However, the Supreme Court ruled that law is unconstitutional.

One of the problems with the 1990 law, Kagan wrote, was that it is based on a section of the U.S. Constitution known as the Intellectual Property Clause. This is where the Constitution says Congress can set protections for patents and copyrights.

The Supreme Court previously decided in a patent lawsuit that the Intellectual Property Clause can't be used to override sovereign immunity.

Allen also tried another tactic, based on the 14th Amendment. It says the government can't deprive people of property without due process of law.

The 14th Amendment does not help Allen use the Copyright Remedy Clarification Act, Kagan said, because the act was written with little evidence that the states were widely and intentionally violating copyrights. It too broadly stripped states of their sovereign immunity, Kagan said.

Kagan cited the previous Supreme Court ruling in the patent dispute in reaching this conclusion.

Now Congress has guidance on how it can pass a carefully crafted law on how and when people can sue the states for copyright infringement, Kagan said.

"That kind of tailored statute can effectively stop states from behaving as copyright pirates," Kagan wrote. "Even while respecting constitutional limits, it can bring digital Blackbeards to justice."

Kagan's final conclusion provides some hope, said copyright lawyer Susan Olive, who represents Allen.

"Although we are disappointed by today's ruling, we take comfort from the court's clear message that what was done to Rick Allen and Nautilus Productions by the state of North Carolina was fundamentally unfair," she said.

Olive said Allen will ask Congress to pass a new law that meets the guidelines.

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