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.

Democracy on Deck

So the Treasure Was Divided by Howard Pyle, 1905Just because major finds like Whydah and the Queen Anne’s Revenge have been uncovered doesn’t mean there aren’t any more famous ships from the Golden Age of Piracy to track down. Case in point: Joseph Bannister’s Golden Fleece, the search for which is detailed in Robert Kurson’s new book, Pirate Hunters:

Bannister’s story was the catalyst for Messrs. Bowden, Chatterton, and Mattera’s determination to find the Golden Fleece, a quest smoothly described in “Pirate Hunters.” It would be churlish of me to disclose the result, but I can say that the three men become furious with one another, pore over time-worn archives in the U.S. and Europe, and confront armed robbers, money worries, rival divers, a mean barracuda and, perhaps most ominously, changing attitudes toward underwater treasure seekers.

Alas, WSJ reviewer Howard Schneider apparently felt a little dirty enjoying a summer read about high-seas criminality, scolding one of the wreck hunters for glamorizing the Long John Silver lifestyle:

Also problematic are Mr. Mattera’s belief that pirate ships operated on democratic principles. “The captain would exercise absolute authority only in battle,” Mr. Kurson summarizes. “At other times, he would guide the ship according to the pleasure of the crew.” For Mr. Mattera, Bannister “was a man enthralled by democracy,” and his metamorphosis into a pirate was occasioned by egalitarian idealism.

“[L]et’s not romanticize Joseph Bannister,” Schneider concludes, “Or pirates in general.” Full review here, behind the paywall.

Setting aside Bannister’s precise motivations, Schneider needn’t be so skeptical about Mattera’s claims; the fact that many buccaneer vessels were floating republics has been well documented. The command structure was exactly as Mattera described, and pirate constitutions included workers’ compensation and equitable sharing of prizes, with officers and skilled craftsmen earning more than common sailors but not enough to incite jealousy. The system was so successful it was still used among privateers during the Revolution. From Samuel Smedley, Connecticut Privateer (pp. 91-92):

It is remarkable what little difference stands between Smedley’s covenant with his sailors and those from the golden age of piracy. Loss of an arm or leg, “or be otherwise so disabled as not to earn his Bread,” was compensated with £1,000 onboard Hibernia. Under his English letter of marque, Henry Morgan granted “six hundred pieces of eight or six slaves” for a lost leg or hand. With Smedley, “[W]hoever shall first enter an Enemy’s Ship, after orders for boarding is issued, he shall receive three hundred pounds as a Recompense for his Valour.” Morgan rewarded the same with 50 pieces of eight. And, as captain, Smedley was entitled to eight shares of the half-prize awarded to officers and crew — the exact same portion given to captains sailing under Morgan’s flag a century prior.

Recognition that 17th- and early 18th-century pirate vessels were islands of democracy in a sea of autocratic empire explains why pirates had such an easy time recruiting sailors. A poor young man standing on the docks of London or another European port didn’t have many options. He could toil in the fields or streets living hand to mouth; or sell himself into indentured servitude in the colonies. Either way he had almost no chance of ever accruing enough capital to buy land or start a business, which were the only real paths to bettering himself. Many opted for the relative security of three hots and a berth onboard a ship but then had to suffer the sadistic discipline of the navy or, worse, the sadistic discipline and starvation rations of the merchant marine. Admiralty archives burst with transcripts of those who leapt to join pirate crews when overtaken, and pirates devised cunning ways to disguise this volunteerism in case they should later be apprehended and tried in court. As Peter Leeson observes in The Invisible Hook (pp. 154-155):

Contrary to popular perception, most pirates were volunteers, not conscripts. Pirates sought willing companions instead of forced men because of simple cost-benefit considerations, not because of a principled objection to using force to get what they wanted. On the one hand, in many cases pirates simply didn’t have to resort to coercion to increase their numbers. The better treatment and opportunity for vastly superior pay on pirate ships was plenty incentive for many sailors to sign on under the black flag when given the opportunity. The benefit of conscripting ordinary sailors was therefore quite low. On the other hand, the costs of pressing sailors could be very large. … They could escape, informing authorities, or leaving the remaining crew too small to take advantage of the ship. Even if conscripts didn’t manage to escape, a crew with a sizable portion of forced men was less likely to succeed since conscripts didn’t have the same incentive to participate as volunteers.

Often only surgeons and skilled craftsmen were pressed into pirate service and that was because their incomes were already secure; they had more to lose than gain by going on the account. But the exact opposite was true for common sailors.

So Mr. Schneider, the next time you pull up your skirts and stand on a chair at the sight of someone extolling the benefits of fifteen men on the dead man’s chest, imagine this scenario:

You are at your bullpen desk, tapping away at your latest review, when a group of Rikers Island inmates bursts in, clad in orange jumpsuits, tattooed and pierced and armed six ways to Wednesday. Some are murderers and rapists but all are thieves as they proceed to loot the Journal offices. This done, they then ask for volunteers — and to your marveling eyes, interns and receptionists and copy boys and Starbucks runners scramble to join. And why? Because the lives of these people you’ve ignored and mistreated are so awful that running off with a gang of thugs is an improvement for them.

That’s the Golden Age of Piracy in a nutshell. To acknowledge good things about Bellamy and Blackbeard isn’t to praise pirates — it’s to condemn the world that fashioned them.

Top image: So the Treasure Was Divided by the inimitable Howard Pyle, 1905.

There Is at Times Some Pleasure

I will not be talking like a pirate on International Talk Like a Pirate Day — yet I have a suggestion for Talk Like a Pirate Evening. Tonight, why not curl up in your treasure den with a cup of rum, your favorite gentleman/gentlewoman volunteer (topless, natch), and a copy of Samuel Smedley, Connecticut Privateer?

I can’t resist the marketing opportunity but I do disagree with the association often made between pirates and privateers. Pirates were bound solely by the covenants they made with each other. American privateers like Smedley were regulated not only by the ship’s articles between the men but also by the rules of Congress. Privateers had to post bond to obtain their commission, and violating the rules of conduct — torture, stripping prisoners of their personal belongings, ransacking the cargo — meant loss of the bond and vulnerability to lawsuits from the aggrieved. While not directly analogous, Revolutionary privateers had more in common with the Minutemen or a posse comitatus than with Blackbeard.

The above painting is A Portrait of Things to Come by Marc Davis, a Disney imagineer. It hangs inside the Pirates of the Caribbean at Disneyland and depicts Scarlett, the redhead on the auction block whom guests meet later in the ride, subsequent to her going on the account. It’s a pirate’s life for her.

Pirate News

Analysis of ceramic remains from Barcadares, an 18th-century pirate camp in Belize, showed that more than 65 percent of it was delftware. Numerous pipes and few cups were found, suggesting popular images of buccaneers eating from decorated plates stolen off merchantmen, with a tobacco pipe in one hand and an open bottle in the other, aren’t that far from the truth.

North Carolina has officially confirmed the shipwreck near Beaufort is indeed Blackbeard’s Queen Anne’s Revenge — in part because the local maritime museum hopes to attract private funding to continue excavation and research.

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.

A Pirate’s Life for Me

Over at Black Gate, I’ve scrawled a couple of reviews of the most recent Fighting Fantasy reprints coming out of England.

For the uninitiated: Fighting Fantasy was a 1980s series of choose-your-own-adventure novels with a simple dice mechanic to simulate combat and other physical challenges. Most were written and illustrated by British authors and artists, with all of the off-kilter and macabre sensibility expected from the sons of Albion. I loved Fighting Fantasy as a kid and nowadays read them to my boys, allowing them to make the decisions as they explore ruins, loot tombs, and slay man and monster alike.

In 2009, publisher Wizard Books began reprinting Fighting Fantasy. Several of the best from my childhood, like City of Thieves and Deathtrap Dungeon, are included in this latest series. Other memorable entries, like Scorpion Swamp — the first FF with a non-linear narrative, allowing you to solve it any which way — haven’t appeared yet. But if I had to pick a favorite, all-time best Fighting Fantasy, it would be the one I know will never be reprinted: Seas of Blood.

Seas of Blood revels in villainy and sheer callousness. The scenario is established in less than two pages: you, a pirate captain, wager with another cutthroat named Abdul the Butcher to see who can accumulate the most swag in fifty days. The winner will be declared king of pirates. And just like that, you’re off, tearing through an imaginary Mediterranean Sea on a binge of rapine and terror.

Did I mention this is a book aimed at children?

Clearly inspired by the Harryhausen/Schneer films of the ’60s and ’70s, Seas of Blood is a mish-mash of Greek triremes and Arabic dhows, of cyclops-haunted isles and giant rocs swooping from the skies, of The Odyssey and A Thousand and One Nights — minus any sense of morality. Like all Fighting Fantasy gamebooks, you have personal statistics, but here you also have group scores to indicate the strength of your crew and soundness of your vessel. Booty is acquired through ship-to-ship combat, yes, but you can also venture ashore alone to explore abandoned temples or with your men to ransack towns or fortresses. A particular sequence has your band of scalawags climb a mountain to attack a Tibetan-like monastery and seize their golden idols.

But wealth in Seas of Blood is not measured in lucre alone. Remember those peaceful monks you despoiled a few pages back? You didn’t actually think you’d just leave them to rebuild their lives, did you? Survivors are thrown into the ship’s hold, to be sold at auction the next time you reach port. But even then it’s not so simple. You soon learn the slave markets in various cities pay different amounts, making prices dependent on the available supply. One city, for example, has been victorious in a war with its neighbor, flooding the market with prisoners and depressing prices. Thus you have to carefully choose where to sell so that you receive the highest bids for your human chattel. Hooray market economics!

Having retained my 1985 edition, I recently played it again with my sons, chortling to myself the whole time. We ended just shy of the amount needed to beat Abdul the Butcher and win the title. A shame. All those people murdered and sold into bondage for mere sport.

Oh well. I wonder what’s for dinner?