North Carolina, Filmmaker, Spar Before 4th Circuit Over Pirate Booty

RICHMOND (CN) – North Carolina asked the Fourth Circuit on Thursday to dismiss a lower court ruling that said the state pirated stock footage a Virginia company had shot of the 18th century pirate ship the Queen Anne’s Revenge.

The frigate became famous as the flagship of the pirate Edward Teach, otherwise known as Blackbeard, who abandoned the ship in 1718 after it ran aground in present-day Beaufort Inlet, North Carolina.

Nautilus Productions worked with the state to get access to the wreck and has since sold its footage for use in a number of Blackbeard documentaries.

At the time, the North Carolina Department of Natural and Cultural Resources used the footage in tourism and promotional materials, assuming it had a fair use right to it. But the production company says that unfettered use was never part of the original deal between the parties.

After a lower court ruled in favor of Nautilus, the state appealed arguing it has qualified and legislative immunity and therefore cannot be sued by private parties for copyright infringement.

Frederick Allen, a co-owner for Nautilus Productions, maintains he absolutely has a right to sue the state under the Copyright Remedy Clarification Act of 1990.

On Thursday, Ryan Park, representing the state, pointed to numerous previous cases, including Supreme Court decisions, where the courts found the law was invalid as it is superseded by Article 1 of the U.S. Constitution, which prevents states from being the subject of lawsuits.

“Every court that has considered the Copyright Remedy Clarification Act has found it unconstitutional. The district court here disregarded this settled, and uniform body of precedent,” he said.

But Susan Olive, the attorney for Allen and Nautilus, said the state lost its right to claim sovereign immunity when it continued to use the footage after the complaint was filed.

U.S. Circuit Judge Paul Neimeyer, a Reagan appointee, said he checked the websites listed in the complaint while researching the case, and found the offending content was no longer present.

“There has to be a demonstrated ongoing violation of federal law,” he said.

Olive pointed to other appearances of the unauthorized content that have been posted in other digital areas and remain online.

“The complaint is not limited to those six websites,” she said.

Park also contested Allen’s claim by saying the small amount of footage they used amounted to fair use. Additionally, the footage was used in connection to museums which would qualify as fair use under the contract Allen signed with the state. That contract, the lawyer said, allowed for the educational use of the material.

“There’s no connection between the profit-making intent and the uses that are at issue here,” he said, stressing the videos were “free educational videos the department uses to teach about the Queen Anne’s Revenge.”

But Olive said the footage the state used was shot underwater, a complicated task, and limited in Allen’s final cut.

“Many of [the Nautilus videos] are less than a minute long,” she said. “When you take multiple seconds from something that is only 38 seconds long, it is very likely that the evidence will show they have taken the heart, if not the majority, of what those films hope to encompass.”

Olive also questioned the “non commercial” use of the videos when the footage was used in tourism outreach.

“Educational use in limited circumstances [is allowed], but even an educational institution can’t make copies of things and hand them out willy-nilly,” she said. “I don’t think it could be reasonably believed to be a fair use here.”

But it wasn’t all dense legalese. The connection to a famous pirate inspired at least one colorful exchange.

“Is North Carolina proud of Blackbeard?” Judge Paul Niemeyer asked Park. “He was one of the worst of all, wasn’t he?”

“It’s of immense historical interest,” Park replied. “My daughter learned about him in school, but the people who filmed this came from Virginia, so credit goes to them.”

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