(CN) – The state of North Carolina is engaging in unfair and deceptive trade practices as it continues to infringe on the copyright on photos and videos of Blackbeard’s pirate ship, the Queen Anne’s Revenge, a videographer claims in a lawsuit.
In a lawsuit filed on Tuesday in the Raleigh, N.C. Federal Court, Rick Allen and his Nautilus Productions says he has been “painstakingly” documenting the retrieval of Blackbeard’s flagship, ever since it was found sunk in about 30 feet of water off the North Carolina coast in 1996.
The wreck, which is located near present-day Fort Macon State Park, was located by Philip Masters of Intersal, a firm that specializes in locating historic wrecks, and after the ship was definitely identified, the company entered into an agreement with the North Carolina Department of Cultural Resources and the Maritime Research Institute intended to safeguard the integrity of the vessel and its contents.
Because it lies on the ocean bottom within three-miles of the North Carolina coast, the state owns the physical wreck.
But as part of the deal, Intersal said in a separate lawsuit filed in August, the shipwreck hunter agreed to forego entitlement to any coins or precious metals recovered from the Queen Anne’s Revenge so that all of its artifacts would remain intact until the state determine their ultimate disposition.
In return, Intersal claimed, 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.
But in his Dec. 1 complaint, Allen says that the state entities that signed onto the agreement “conspired to convert Plaintiffs’ copyrighted works into ‘public documents’ that would be made available to the public without Plaintiffs’ consent and without compensation, in violation of the Constitutions of the United States and North Carolina, and used and permitted others to publicly display, copy and otherwise use Plaintiff’s copyrighted worked without Plaintiffs’ consent.”
Allen admits he doesn’t fully understand the state’s decision to infringe on the copyrights, but he believes each of the defendants named in his lawsuit “expected to achieve considerable savings and profits from uncompensated use of Plaintiffs’ work.”
To further this aim, he says, the state adopted a statute last summer that changed the process for how the N.C. Dept. of Cultural Resources deals with “unclaimed property.”
“The effect of N.C. Gen Stat §121-25(b) is to covert each of the copyrighted works of Plaintiffs that are in the possession of the State into ‘a public record’ as to which there is now ‘no limitation on the use of … any such photograph, video recordings, or other documentary material.”
Allen further alleges that when Gov. Patrick McCrory signed the bill, he knew full well that an agreement was in place between the parties, and that the sole purpose for the drafting the law was to help the state skirt liability for infringing activities.
“It is outrageous that the agency charged with promoting the arts in North Carolina does so through the misuse of its citizen’s property. Blackbeard’s Law affects every artist, writer, photographer, producer, historian and donor in N.C. and sets a dangerous precedent for N.C. government overreach,” Allen said in a written statement.
He seeks to have the statute declared invalid, to have the state enjoined from enforcing it, and the awarding of compensatory and treble damages.
Allen is represented by Susan Olive of Olive & Olive P.A. in Durham, N.C.
In the past the Dept. of Natural and Cultural Resources has maintained the law is only intended to clarify public records laws in the state and has no effect on any current agreements.
On Thursday, Cary Cox, a spokeswoman for the department, said, “We have not yet been served and our attorneys will review and answer within the proper court structure. However, I am confident that the Natural and Cultural Resources staff handled this situation in an appropriate and proper manner.”
She added: “The Queen Anne’s Revenge is one of our state’s most popular attractions. Blackbeard’s fascinating story intrigues our citizens and attracts visitors from around the world to North Carolina. The Queen’s Anne’s Revenge is among the many treasures entrusted to the North Carolina Department of Natural and Cultural Resources and owned by the people of this state. It is this department’s duty to protect these valuable assets for current and future citizens.”
Photo provided by Rick Allen. Photo credit: Cindy Burnham, Lucky Shot Productions.
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