Battle Over Shipwreck Photos Brews in N.C.

     
     (CN) – Practically daring a shipwreck-hunter to claim his booty has been plundered, the North Carolina Legislature on Wednesday declared photographs and video footage of shipwrecks held by North Carolina state agencies are public records, freely available to all.
     Passage of the bill comes in the wake of an $8 million lawsuit filed against the state by the company that found the legendary pirate Blackbeard’s sunken ship off the North Carolina coast in November 1996.
     In a complaint in Wake County Superior Court, Intersal Inc. claims North Carolina violated a contract pertaining to images of the ship, Queen Anne’s Revenge, by displaying them on websites and social media pages without the company’s watermark.
     The state has denied any wrong-doing.
     The bill now headed to the desk of North Carolina Gov. Pat McCrory was requested by the state’s Department of Cultural Resources, which asked the state senate to declare that any photos or video footage of a shipwreck held by state agencies are public property.
     Officials said Wednesday that the law won’t be retroactive, but will merely clarify ownership of images going forward.
     John Masters, Intersal’s director of operations, told Courthouse News that the language of the bill “is clearly an effort to invalidate the October 15, 2013 settlement agreement” and he maintained there’s no doubt the state advanced it because it knew the shipwreck-hunters were planning to sue.
     Masters said most disputes over shipwrecks revolve around treasure or other artifacts. “In this case, the issue is breach of contract and intellectual property rights,” he said.
     “In 1998 Intersal traded salvage rights to Queen Anne”s Revenge for media and replica rights.
     :In 2013, Intersal and NC DCR agreed to share these rights collaboratively, according to specific conditions outlined in the QAR Settlement Agreement. It is this agreement and these shared rights that have been violated by the state.”
     He continued: “The amendment to G.S. 121-25, if enacted, constitutes a violation of the Contracts Clause, Article I, Section 10 of the United States Constitution, for starters. 42 U.S.C. §§ 1983 and 1988 (attorney’s fees) would also be implicated.”
     Masters said if the governor signs the bill into law, Intersal, at minimum, will amend its current complaint in Intersal, Inc. v. Susan Kluttz, et al., and seek declaratory and injunctive relief, as well as damages and attorney’s fees.
     The ship at the center of the controversy was launched by the Royal Navy in 1710, but was captured by France just a year later. Originally christened the Concord, the French renamed the vessel La Concorde de Nantes, and used it primarily to transport slaves.
     The ship was captured by the pirate Benjamin Hornigold on Nov. 28, 1717, near the Island of Martinique, and he promptly turned it over to Edward Teach — the future Blackbeard — installing him as its captain.
     It was Teach who renamed the ship Queen Anne’s Revenge and who briefly made it the terror of merchant shipping. But in May 1718, shortly after blockading the harbor of Charleston, S.C., Teach grounded the ship on a sand bar off the present-day Fort Macon State Park.
     There it lay, in 30 feet of water , for the next 278 years. After Intersal found the wreck and it was definitively identified, the company entered into an agreement with the North Carolina Department of Cultural Resources and the Maritime Research Institute, in which the company agreed to forego entitlement to any coins or precious metals recovered from the Queen Anne’s Revenge so that all of the vessels artifacts would remain intact until the state determine their ultimate disposition.
     In return, Intersal says, it was granted media, replica and other rights related to the shipwreck, and MRI was granted joint tourism rights related to the site.
     The agreement was updated on October 24, 2013, with the North Carolina Department of Cultural Resources, Intersal, and Nautilus Productions agreeing to certain collaborative rights as regards commercial, replica, and promotional opportunities.
     Because it lies on the ocean bottom within three-miles of the North Carolina coast, the state owns the physical wreck.
     In its lawsuit, Intersal accuses North Carolina of trampling its longstanding agreements with the company. In addition to more than $8 million in damages, Intersal is also seeking a temporary order to prevent the state from violating the contract and recovering more objects from the ship’s wreckage.
     The company is represented by David Harris Jr. of the Linck Harris Law Group in Durham, North Carolina.

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