Western Morning News
How state got away with piracy over West’s Blackbeard
IT is more than 300 years since South West pirate Edward Thatch scuppered his own ship in a bid to evade capture.
But now a legal row over Blackbeard’s pride and joy – the Queen Anne’s Revenge – and the efforts to salvage it from the shallow waters of North Carolina have gone all the way to the Supreme Court of the United States.
In perhaps one of the most bizarre rulings America’s highest judicial power has ever had to make, the Supreme Court has ruled video film and photographs of the salvage of Blackbeard’s ship can be used by the state of North Carolina to promote tourism.
It is a ruling that Edward Thatch – whom history has erroneously been describing as Edward Teach for centuries – would certainly understand, for it goes to the heart of whether the Government or state authorities are allowed to act like pirates, and if they do, does that break the law.
Back in the 1600s and up to the 1710s, when Thatch and his Republic of Pirates were wreaking havoc on shipping in the Caribbean and along the east coast of the United States, many pirates either started off or ended up being ‘privateers’ – pirates sent by the kings or governments of countries to plunder foreign shipping, but leave their own nation’s ships alone.
It was only when the likes of Thatch decided to go it alone that piracy was seen as a problem – and it was piracy of a slightly different kind that recently exercised the Supreme Court in Washington.
Blackbeard’s ship, the Queen Anne’s Revenge, was discovered at the bottom of shallow waters of Beaufort Inlet in North Carolina. The Bristol-born pirate decided to cut his losses and try to settle on dry land when things got a bit too hot to handle on the seas.
That was back in 1718 – and Blackbeard’s apparent law-abiding life didn’t last long – he was soon back out on the waters being a pirate again, before he was eventually killed in battle on board a different ship before the year was out.
The wreck of the Queen Anne’s
Revenge was discovered in 1996 by a private research and salvage company called Intersal, and everyone agreed that the ship was a historic artefact that belonged to the state of North Carolina.
Intersal began work to salvage the contents of the ship – including its 3,000lb anchor – and hired a company called Nautilus Productions to document the decades of work on the wreck with video and photographs, mainly underwater.
In 2013, the state of North Carolina took that film and used a bit of it in a tourism video extolling the virtues of visiting the state. It did so without getting permission, which Nautilus Productions and Intersal claimed amounted to copyright piracy.
The irony that the state of North Carolina, which hunted down Blackbeard and ultimately killed him after he had terrorised its merchants for a few years, was now indulging in piracy of its own over pictures of his boat would not have been lost on Thatch himself.
North Carolina paid Intersal $15,000 for the infringement of copyright, but then did the exact same thing again.
After using a second bit of video, North Carolina’s state legislators passed a law – known as ‘Blackbeard’s Law’, which ruled that regular copyright laws did not apply to the state of North Carolina – something that would have brought a wry smile from the man himself.
Nautilus Productions objected to this state-sponsored legal piracy, and took the case through the courts to the very top.
“After Nautilus spent nearly two decades creating works by photographing and filming (at considerable risk) underwater excavation of Blackbeard’s famed Queen Anne’s Revenge, the state brazenly pirated them,” the company protested in legal papers.
Federal law agreed initially with the company – there are protections for copyrighted material – but then agreed that states are immune under the 11st Amendment to the constitution. The Supreme Court backed that view, and Associate Justice Elena Kagan ruled precedent did indeed side with North Carolina, even though it really shouldn’t.
She urged Congress to look again at the law, and maybe the next time a state wants to act like Blackbeard, they won’t get away with it.
“If it detects violations of due process, then it may enact a proportionate response,” she said. “That kind of tailored statute can effectively stop states from behaving as copyright pirates.
“Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”