Nearly 300 years after Blackbeard's flagship sank off the North Carolina coast, the nation's highest court is giving state governments a license to plunder.
Supreme Court justices decided last week that North Carolina can't be sued for violating Nautilus Productions videographer Rick Allen's copyright. The ruling in Allen v. Cooper expands the sovereign immunity doctrine, which holds that states can't be sued without their consent.
Allen spent more than a decade documenting a contractor's work to salvage guns, anchors and other buried treasures after Blackbeard's former ship, the Queen Anne's Revenge, was discovered in 1996. He registered his videos and photographs with the U.S. Copyright Office, but that didn't stop the North Carolina Department of Natural and Cultural Resources from using his work on its website.
In 2013, the state agreed to pay Allen a $15,000 settlement for having published his copyrighted works without permission. Allen sued after state officials reneged on the settlement agreement and used more of his work on state websites and in digital newsletters.
Allen wasn't trying to shake down the taxpayers. His argument that publishing his work destroyed its commercial value is correct because when a state agency used the photos and videos, they became public records. News outlets, historians and pirate enthusiasts no longer needed to license the images and footage from Allen. Obtaining the material from a government source shields them from copyright claims.
Congress passed the Copyright Remedy Clarification Act of 1990 to prevent states from using sovereign immunity to steal creators' intellectual property. But the high court's 1999 ruling in Florida Prepaid v. College Savings Bank upheld states' immunity in patent disputes, and the Allen case built on that precedent to bar copyright infringement claims.
"Florida Prepaid all but prewrote our decision today," Justice Elena Kagan concluded in the majority opinion.
The potential consequences for those who produce original content are disastrous.
"After this ruling, and you're an artist and your painting's in the North Carolina Museum of Art or you post a photo of a North Carolina lighthouse on your website or you write a piece of music and they're playing it in a North Carolina museum, the state has every right to take it and infringe on your copyright," Allen told The Fayetteville Observer. "It's open season on intellectual property owners now."
Painters, musicians and photographers aren't the only ones who have reason to be concerned. Academic work may also be pilfered.
The supercharged sovereign immunity defense likely applies to public universities, Adam Goldstein of the Foundation for Individual Rights in Education wrote this week. He explained that colleges are now theoretically free to copy professors' textbooks and steal student artwork. There may be other legal remedies, but copyright law no longer holds sway.
State Attorney General Josh Stein congratulated Ryan Park, who represented North Carolina in the case and has since been promoted to solicitor general. But depriving artists of the right to control their work is an odd occasion for celebratory chest thumping. It's a morally bankrupt victory.
Attorneys general often make their mark in consumer protection cases, wresting multimillion-dollar settlements from drugmakers, cigarette companies and other large corporations whose products endanger public health and welfare. Fighting for the right to rip off independent photographers is a curious cause, to say the least.
Even the Supreme Court acknowledged that the outcome falls short of genuine justice. While explaining in great detail why precedent compelled a result in North Carolina's favor, Kagan suggested lawmakers go back to the drawing board and write a new law to achieve the desired result of protecting private copyright holders.
"That kind of tailored statute can effectively stop states from behaving as copyright pirates," Kagan wrote. "Even while respecting constitutional limits, it can bring digital Blackbeards to justice."
While artists await a new law to safeguard their work from government theft, perhaps they can give sticky-fingered state officials a dose of their own medicine by appropriating tourism photos and other such materials in the public domain, and selling them at an obvious markup as equal parts fundraiser and protest.
If you can't beat the pirates, maybe it's time to hoist your own Jolly Roger and join 'em.
Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.
Photo credit: efes at Pixabay