Yesterday, the Supreme Court heard oral arguments in Allen v. Cooper, a case centered around the issues of copyright and Blackbeard.
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 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 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. Images can be dicier because no one uses 10 percent of a photo or a painting — 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 fig 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 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.