24 March 2020: Well! How times can change in the space of 1 week! The whole world is on lock-down, everyone is "self-isolating" and shops, restaurants, and entertainment venues are closed up tighter than a spinster's purse! Fortunately, the gun shops and liquor stores remain open and well-stocked. (at least here in the USA,) but don't try to find toilet paper; that seems to be in very short supply even though the Covid-19 bug does not seem to require an abundance of that product. Who knows what drives people!? Here endith this week's rant! Let us move on to the subject at hand.
While the following is not completely maritime, it does speak to a maritime issue and one that we had posted on a couple of months ago.
unanimously in favor of states' rights on Monday, the U.S. Supreme
Court said that a videographer who spent two decades documenting the
salvaging of Blackbeard's ship cannot sue the state of North Carolina in
federal court for using his videos without his permission.
the decision had more to do with mundane copyright law than the law of
the high seas, it was a victory for states claiming immunity from
copyright infringement lawsuits.
The case before the court
began with the 1996 discovery of the sunken remains of a French slave
ship captured by the infamous pirate Blackbeard in 1717, and renamed by
him The Queen Anne's Revenge. The vessel became the pirate's flagship.
With 40 cannons and 300 men, it sailed around the Caribbean and up the
U.S. coast. But in 1718, just a year later, it ran aground just a mile
off Beaufort, N.C., and sank.
There she lay undisturbed for
some 300 years until 1996 when the shipwreck was discovered by a marine
salvage company named Intersal, Inc. There was no dispute that under
federal and state law, the remains belonged to the state. So North
Carolina commissioned the salvage company to take charge of the recovery
operation, and the company, in turn, hired Frederick Allen, a local
videographer, to document the operation. Which he did, "at considerable
risk," for the next two decades — all the while copyrighting his work so
that it could not be used without his permission.
The state of North Carolina, however, began posting some
of Allen's photos online, without permission or paying royalties. In
2013 the state paid Allen $15,000 for one such infringement, but its
violations persisted. Ultimately Allen sued in federal court for
The state claimed it was immune to such
suits because over the last quarter century the Supreme Court has ruled
that in general individuals cannot sue sovereign states without their
permission in federal court. Allen countered that the copyright
provisions of the Constitution trump that general rule when combined
with other rights-enforcement provisions in the Constitution.
But on Monday (23 March), the Supreme Court ruled unanimously against Allen and for the state's immunity from such federal lawsuits.
for the Court, Justice Elena Kagan pointed to several precedents over
the past 26 years in which the justices have barred such lawsuits. True,
she said, Congress had explicitly and clearly enacted legislation
allowing such federal lawsuits.[emphasis added; ed] But that legislation was enacted before
the Supreme Court had begun reading the 11th Amendment to bar such
suits. [huh?:ed] Mainly, though, the court's opinion was couched in terms
of deference to precedent--namely in this case, the precedents of the
last 26 years. "To reverse a decision, we demand a special justification
over and above the belief that the precedent was wrongly decided,"
Kagan wrote. "And Allen offers us nothing special at all."
the decision was unanimous, there were two concurring opinions. Justice
Clarence Thomas refused to join those sections dealing with deference
to precedent. And Justice Stephen Breyer, joined by Ruth Bader Ginburg,
joined "in the judgment." More on that shortly.
himself and Ginsburg, Breyer noted that he had long disagreed with the
decisions barring individual lawsuits against state governments. "One
might think that Walt Disney Pictures could sue a state (or anyone else)
for hosting an unlicensed screening of the studio's blockbuster film, Pirates of the Caribbean (or any of its many sequels.) Yet the court holds otherwise," he wrote.
had a little fun at Kagan's expense, declaring that in his view, under
the Constitution Congress may, as it did in this case, require states
that "have pirated intellectual property...to pay for what they have
Referring to Kagan's suggestion that a "more
tailored" congressional effort to legislate in this area might pass
constitutional muster, Breyer observed that is "anyone's guess."
he said, "recognizing that my longstanding view has not carried the
day, and that the court's prior decision" in a similar case "controls
this case, I concur in the judgment." ~~~~~~~~~~~~~~~~~~~~~
So, it would appear that the copyright protection offered by the U.S. Constitution is null and void, if a state needs it to be. So, what about an individual? How about a town or county? Seems like someone erred in this case. But there are no lawyers on our staff here at Maritime Maunder so we shall defer to the highest court in the land! Until next time, (unless we succumb to the Covid bug) fair winds, Old (and so far, healthy) Salt