The Case of Blackbeard’s Anchor

Yesterday, the Supreme Court heard oral arguments in Allen v. Cooper, a case centered around the issues of copyright and Blackbeard. My worlds are colliding!

The Allen in the case title is Rick Allen, who owns an underwater video and photography company called Nautilus Productions LLC. In 1996, Blackbeard’s ship, Queen Anne’s Revenge, was discovered in North Carolina waters, and afterward Nautilus contracted with Intersal Inc, the company that located and identified the wreck, for the exclusive image rights to the recovery operation. This meant that no one else was allowed to take photos of the shipwreck in situ (which is beyond the ability of most photographers anyway as the wreck lies 28 feet down about a mile offshore) or of pieces and artifacts of the wreck as they were brought to the surface. I’m not sure what the status was of photographing the artifacts once they reached dry land.

The state’s Department of Natural and Cultural Resources lacked the funds to recover the Queen Anne’s Revenge themselves, so they hired Intersal to salvage it instead. In return for foregoing any claim to the artifacts, including coins or precious metals, Intersal was granted exclusive media and replica rights to the wreck. This allowed Intersal to profit on their salvage work by creating educational media and other promotional materials. Bear in mind that because the wreck belongs to the state of North Carolina, Intersal never had a claim to the artifacts in the first place.

Turns out your humble blogger Jackson once had a run-in with Allen and Nautilus over this very issue. Way back in 2009, I posted an update when the Queen Anne’s Revenge Shipwreck Project (the aegis of the state, Intersal, Nautilus, and who knows who else) raised a grapnel anchor from the seabed. I illustrated the post with a photo of the anchor taken from North Carolina’s own project media page, which is to say, my source ended in .gov.

Now, generally speaking, using images or photos from government sites for newsworthy purposes is considered fair use. When quoting text from a source, public or otherwise, it’s fair use if you quote less than 10 percent of the whole body. Photos can be dicier because no one uses 10 percent of a photo — they show the whole thing. Furthermore, not all government entities have a grasp of fair use or even basic copyright: when I was writing Smedley, the Connecticut State Archives demanded that I request permission to quote any sources in their possession by filling out a separate form for each citation, claiming that they owned the copyrights to all of their materials. This is complete and total bullshit, of course, because nobody owns the copyright to letters or documents written 230+ years ago, so I never complied. But again, complications notwithstanding, generally it’s OK to use stuff from government sites for journalistic purposes, particularly when the page is designed as a digital press release, as was the case here.

A couple of years after I wrote that post, I received a very aggressive email from Nautilus Productions threatening to sue me. They claimed they had exclusive permission to all images of the wreck, and they demanded that I pay them three times the cost of the image’s price as compensation for this alleged crime of reprinting their photo on my site.

I responded that I was happy to take the photo down — again, the post was already a couple of years old at this point — but I added that I’d taken it from North Carolina’s own project page, so fair use. A few days later, I received a much more conciliatory email suggesting that I could keep the photo as long as I added a credit to Allen and Nautilus Productions in the caption. I had the impression they hadn’t known about the photo on the state page beforehand and they realized their accusation of infringement against me was weak.

I added a strikethroughed credit to the post but removed the photo — like I give a shit about a bunch of chuckleheads who can’t even figure out who has permission to use a photo of an 18th-century anchor. In journalism, when you write something bad about someone you’re not surprised when they resent it, but nothing is as frustrating as writing good or at least neutral news, only for the person to whip around and bite your hand like a snake. The whole incident annoyed me so much that I stopped reporting about the project on the blog altogether.

Apparently, that photo wasn’t the only image used by the state against Nautilus’s wishes, and in 2013, all of the parties — North Carolina, Intersal, and Nautilus — clarified their positions regarding photos and videos. They started quarreling again soon afterward, and Nautilus sued the state for copyright infringement, to which the state argued the Copyright Remedy Clarification Act gave them sovereign immunity from lawsuits. The North Carolina legislature also passed a law making all photos and videos of state shipwrecks public domain (dubbed “Blackbeard’s Law”), which further pissed off Nautilus and added to their litigation. Intersal also separately sued the state.

No excavation of Queen Anne’s Revenge has occurred since 2015 due to all of the lawsuits.

The case as it stands now before SCOTUS is less about pirates and photographs than it is about sovereign immunity. You can read a full summary of the case’s history here, and even take a headlong dive into the weeds with the transcript of the oral arguments here (pdf).

While I don’t begrudge Intersal or Nautilus some means of compensation for their salvage efforts, I’m also dubious of private companies claiming exclusivity of resources or research when tax dollars are involved (I’m looking straight at you, Elsevier). What I don’t understand is why North Carolina didn’t specify that Nautilus must provide them with a certain amount of open content for public relations; or if they did, why the state then violated the agreement. Governments are as fickle and arbitrary as diseased raccoons, so I can imagine North Carolina’s state attorneys changing their minds while the ink was still wet on the 2013 settlement.

On the other hand, if no such agreement existed, then Nautilus’s naivete of the political environment is astounding. The politicians who write and pass the budgets, not to mention the public who pays for them, will want to see pictures of the shipwreck they’re partially funding, so Nautilus should’ve thrown them some freebies. If that’s what happened, then Nautilus has nothing but their own greed to blame for their current legal hell.

We’ll find out what SCOTUS decides next summer.

The Fishers of Men, Redux

Earlier this summer, 18th Wall released Sockhops & Seances, an anthology of spoopy stories set in the 1950s. Included is a reprint of my story “The Fishers of Men.”

There is no stopping progress. You may buy a plot of land, build a home, raise a family, join a church, and volunteer for the local PTA—but if the authorities determine someone somewhere else is thirstier than you, they will drown your American Dream with no more effort than turning the spigot counterclockwise.

Due to the relatively high population density in Connecticut, over the years the state created a number of reservoirs to supply water to nearby cities; and because this involved damming rivers, sometimes towns in the valleys were lost beneath the waves. This included the churchyards. They’re still there, under the waters, where the past doesn’t always sleep easily.

“Fishers” originally saw light in 2015 in the UK magazine Black Static. BS doesn’t see wide circulation over here (I’ve never seen it outside certain Barnes & Nobles), so I’m glad American audiences have another crack at catching it.

You can read the first third of the story at the 18th Wall website, and you can also pick up a copy while you’re there or at Amazon.

Short News, Fighting Neverland Edition

Averoigne and Its Malcontents. Inpatient Press, a small publisher in New York, has produced a trade paperback of Clark Ashton Smith’s stories set in Averoigne, a medieval French province haunted by vampires and sorcerers. Even better, they’ve published it in the style of the Ballantine Adult Fantasy series from the early 1970s, with the line’s distinctive art and minimalist typography. Ballantine editor Lin Carter published four books of Smith’s work in the series and planned a fifth — Averoigne — but the series was canceled before the book could appear anywhere except the Sandman’s library shelf.

For years I’ve chronicled various attempts to produce the missing fifth volume. In 1995, publisher Donald M. Grant began advertising a hardback edition edited by Ron Hilger, but for decades that book remained vaporware. It finally appeared 21 years later, published by Centipede Press as an expensive collector’s edition that ran only 200 copies. Hilger says a paperback version is forthcoming from Hippocampus Press, release date TBD. Meanwhile in June, Pickman’s Press published their own e-book collection of the stories.

Hilger is none too happy about the Inpatient Press paperback, labeling it a “pirate edition,” an “illegal publication,” and a “fraud” because it wasn’t authorized by Smith’s estate, which is operated by Smith’s stepson. Inpatient informed me, however, that the book is perfectly legal — they used the Weird Tales versions of the stories, which are in the public domain.

Place Settings. I like to listen to podcasts about pirates, vintage RPGs, and 19th-century history, but for awhile I’d been searching without satisfaction for a podcast about utopian intentional settlements. Then, lo and behold, along came Curbed with their series Nice Try! An early episode discussed the Oneida community in upstate New York, which is one of my favorite examples of the utopian arc: what began as voluntary social experiment eventually devolved into a dysfunctional, if not horrific, cult. Not to mention an internationally known tableware company.

Coincidentally over at LitHub, author Caite Dolan-Leach discusses how she used Oneida as a template for the modern-day utopian commune in her new novel. Likewise I used Brook Farm and Fruitlands as models for Bonaventure, the setting for A Season of Whispers — although as far as I know, Dolan-Leach’s book doesn’t involve whispering walls and mysterious disappearances.

Watching the Detectives. CrimeReads has a list of three post-apocalyptic detective novels sure to brighten anyone’s year-end round-up of post-apocalyptic fiction. If, you know, that’s something you do.

No Time to Explain. Over at Fast Company I found some tips on how to be a better storyteller. The big takeaway for me: keep your anecdotes to 90 seconds or less.

Cover Reveal

A Season of Whispers

Introducing the finalized cover for my novel A Season of Whispers.

From the back cover:

In the summer of 1844, Tom Lyman flees to Bonaventure, a transcendentalist farming cooperative tucked away in eastern Connecticut, to hide from his past. There Lyman must adjust to a new life among idealists, under the fatherly eye of the group’s founder, David Grosvenor. When he isn’t ducking work or the questions of the eccentric residents, Lyman occupies himself by courting Grosvenor’s daughter Minerva.

But Bonaventure isn’t as utopian as it seems. One by one, Lyman’s secrets begin to catch up with him, and Bonaventure has a few secrets of its own. Why did the farm have an ominous reputation long before Grosvenor bought it? What caused the previous tenants to vanish? And who is playing the violin in the basement? Time is running out, and Lyman must discover the truth before he’s driven mad by the whispering through the walls.

Many, many thanks to Aurelia Leo publisher and editor-in-chief Zelda Knight for working so hard to put this incredible cover together. It went through several iterations, each one better than the last, and I couldn’t be happier with the finished product. When I suggested the original concept of “women with great hair fleeing Gothic houses,” she immediately grokked what I meant, right down to the singular lit window in the house.

A Season of Whispers will be available October 2020. You can preorder it at Aurelia Leo’s site.

Should I Stay or Should I Go

At the Yankee Institute, I have a brief tout for a new study they’ve published regarding Connecticut’s Jekyll-and-Hyde attitude toward business in the state, wherein corporations are heavily taxed until they threaten to depart — at which point Hartford throws some corporate welfare at them.

Proponents of the tax increases estimated $481 million in receipts from corporations for the two-year period, but in reality the taxes only brought in $323 million — just 67 percent of what they originally projected.

But during that time, the state’s Department of Economic and Community Development shelled out nearly $358 million in grants or loans to businesses to either move to Connecticut or, if they were already here, to stay put.

Many of the recipients of the DECD’s largesse are hardly strapped for cash and the economic incentives from the state did little to keep them from ultimately deciding to relocate.

United Technologies is the latest giant corporation to relocate its HQ outside the state even though they’ve received tax credits from Connecticut.

Meanwhile, HB 7222, which I reported on back in March, has died in committee. The bill sought to expand the power of the attorney general in the name of civil rights but was opposed as an encroachment upon other offices in the state.