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!

In a nutshell, 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.

Latest News From Beaufort Inlet

The Queen Anne’s Revenge Shipwreck Project has posted a summary of their 2010 fall field season:

A total of 122 objects were recovered from the wreck site during the field season. Sixty-five concretions of varying sizes have the potential for containing hundreds of individual artifacts. These concretions will be X-rayed at the conservation lab to help identify what may be contained within. Some artifacts readily apparent on gross external examination include: cannon balls, cask hoops, a pewter plate, and the largest object recovered this season — multiple segments of a deadeye strop with the wood deadeye intact, likely from the port side main mast chain plate.

Drawing of the QAR from the Project’s 1999 management plan.

Blackbeard Artifacts Displayed

Reporters were given a gander at some of the artifacts raised from Blackbeard’s ship:

David Moore, nautical archaeologist with the N.C. Maritime Museum, said all of the artifacts date to the early 18th century, the correct time for the shipwreck, which was in November 1718.  Two artifacts have dates inscribed, a bell from 1705 and a cannon from 1713.  There are four anchors of the correct vintage at the site, and about a quarter million lead shot have been recovered.  He said other ships would not necessarily be so heavily armed, and that this is likely leftover armament from a pirate ship.

The article goes on to speculate that Queen Anne’s Revenge could be to North Carolina tourism what the HL Hunley is to South Carolina tourism. But judging from this year’s field report, that may be some time coming since funding for major recovery is not apparent:

Nearly two feet of sand has been deposited in most places since the lowest point recorded in 2005 and is at levels not seen since the shipwreck’s discovery in 1996. With no funding to continue full recovery operations, this is a good development. When sand covers artifacts it is generally conducive to artifact preservation because it puts them in an anaerobic environment and buffers impacts from currents and critters.

Anchor Update

Back in October, members of The Queen Anne’s Revenge Shipwreck Project raised a grapnel (seen in the foreground to the right) from the wreck of Blackbeard’s ship. I dropped an e-mail to the Project asking if data from an experiment measuring iron corrosion on another anchor influenced the decision to raise the grapnel now.

Wendy Welsh, QAR Conservator, kindly responded:

Actually the data from the in situ monitoring project did not influence our decision to raise the grapnel anchor.  The grapnel anchor was loose from the main ballast pile and to avoid further impacts from strong storm currents the decision was made to recover the anchor. A report about our week long field expedition will be posted on our home page soon.

Remember, kids: jacksonkuhl.com — your one-stop source for pirate archaeology news.

Photo from the North Carolina Department of Cultural Resources Rick Allen, Nautilus Productions.

Hoist the Anchor

Marine archaeologists have raised a small anchor from the site believed to be the wreck of Blackbeard’s ship:

Archaeologists and conservators with the state Department of Cultural Resources say the grapnel was at risk of washing away after nearly 300 years in the sea and might not weather possible storms until next year, when a full-scale expedition is planned.

Since last fall, The Queen Anne’s Revenge Shipwreck Project has been using another anchor, still in situ, to measure iron corrosion at the site and thereby draw an overall picture of the stability of the ship’s iron artifacts. Have to wonder if measurements from that experiment influenced the archaeologists’ decision to raise the grapnel now.

I can’t wait to read about what they find next season. Screw Ardi; for my money, this is the biggest thing to hit archaeology since Whydah was found.

Also: If you’re in or around Raleigh, don’t miss the Knights of the Black Flag exhibit at the North Carolina Museum of History. Looks terrific.