What does Blackbeard have in common with North Carolina?

By Nick Li
Intellectual Property Patents & Trade Marks

In brief 5 min read

They're both pirates! At least, that is video production company Nautilus Production's allegation before the Supreme Court of the United States (SCOTUS), which has been asked to ponder the copyright in materials relating to Queen Anne's Revenge, the ship belonging to infamous pirate Blackbeard. We explain why this case's significance sails beyond the seven seas.

Key takeaways

  • The filmmaker's copyright suit against the state of North Carolina (NC) can only succeed if SCOTUS holds that Congress successfully abrogated state-sovereign immunity for copyright infringement in 1990.
  • If the appeal is allowed in favour of the filmmakers, it may make it easier for Congress to erode state-sovereign immunity in other areas. Conversely, if the appeal is rejected, it will make it more difficult for rights holders in the US to claim against state governments for copyright infringement.
  • In Australia, the Crown is bound by the Copyright Act 1968 (Cth), under which it is immune from copyright infringement only in specific circumstances.


When Blackbeard ran his ship aground in 1718, he would not have thought that she would divide the United States of America 300 years later. The film production company Nautilus Productions, hired to document the salvage operation, is suing NC for plundering its work.

Incensed by the accusation, NC has nailed its colours to the mast, aarrr-guing that Congress did not validly abrogate the state's immunity to copyright infringement by the Copyright Remedy Clarification Act 1990. A fleet of 31 other states agree with NC that if SCOTUS finds for the filmmakers, it could open the floodgates for Congress to invoke the 14th Amendment to readily erode state-sovereign immunity.

The facts so far

When the wreckage of Queen Anne's Revenge was discovered in 1996, the finders contracted with NC to commence a 15-year salvage operation. The finders hired Nautilus Productions to record it.

In 2013, Nautilus alleged that NC infringed its copyright in the materials by reproducing images and footage on its online state archives. That dispute was settled. In 2015, NC reproduced on its online archives more materials Nautilus had captured depicting the wreckage, prompting Nautilus to commence proceedings in the US Federal Court. The 4th Circuit Court of Appeals overturned the first instance decision, holding that Congress did not validly abrogate NC's state immunity under the 11th Amendment through the passing of the federal Copyright Remedy Clarification Act.

In the US, Congress may the abrogate the states' immunity under the 11th Amendment, in cases where it is necessary to enforce the rights guaranteed under the 14th Amendment, and provided Congress specifically intends to abrogate the immunity. A series of irrational state transgressions is usually required to prove that abrogation is necessary. Which end of the plank SCOTUS falls on this occasion may determine the tide of the states' immunity for some time to come.

Australian position

The skirmish unfolding in the US is unlikely ever to play out under Australian law. In Australia, the Crown has limited immunity, and is otherwise liable for copyright infringement. Immunity in Australia includes the following:

  • any use of copyright material by authorised agents of the Crown for the services of the Crown is not copyright infringement; and
  • acts by parliamentary libraries for members of Parliament is not copyright infringement.

The Crown also has the benefit of the fair dealing provisions if it cannot avail itself of either of the above.