Most readers know that the conflict in Allen v. Cooper began when the State of North Carolina made unlicensed use of Rick Allen’s copyrighted AV and photographic works documenting recovery and research of Blackbeard’s flagship Queen Anne’s Revenge. On March 23rd, the Court ruled that Allen was barred from bringing suit against the State under the principle of “sovereign immunity,” as expressed in the Eleventh Amendment, and further reiterated that this immunity could not be abrogated, even for a plaintiff defending a constitutional right, expressly protected by federal law, the CRCA of 1990. My last post about this case discussed the court’s reasoning.
As a creators advocate, I was disappointed that the Court found itself guided by precedent to scuttle Allen’s claim. But I will also admit that, as a history geek, and one who likes a good coincidence, it is hard not to appreciate the fact that the pirate ship at the center of this story carries the mind back a few centuries across the tempests of Anglo-American legal precedents, with which the Supreme Court found itself contending in 2020.
What may be immediately resonant to the copyright nerd is that the pirate ship Queen Anne’s Revenge, shares the eponym with the English legislation, the Statute of Anne, passed in 1710. Often referred to as the first authors’ copyright law, the Statute of Anne was the model for America’s first copyright statute in 1790. But there is more beneath the paint on Blackbeard’s ship than nominal happenstance. If you will indulge me …
The Divine Right Still With Us?
We Americans have generally been taught to think of the Revolution as an outright rejection of the “divine right of kings,” and that the cheekiness of the war was punctuated by an equally audacious Constitution that directly expresses contempt for nobility and royal prerogative. But, as almost any lawyer will tell you, this ideological departure (on paper) from the mother country was not matched by a clean break from English law or custom. How could it have been when the Framers and citizens of new America were, after all, English?
So more than 230 years after kicking George III in the pants, faint remnants of the “divine right” still echo in the halls of American jurisprudence, and still befuddle large segments of the population, who earnestly declare that certain individuals are “sent by God” to lead the United States. That profoundly un-American sensibility is a much bigger sociological phenomenon than I will presume to address here, but in a case like Allen v. Cooper, the “divine” anachronism takes the form of “state sovereign immunity,” which the Supreme Court described thus in 1999 in Alden v. Maine:
“The doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. In addition, the leading advocates of the Constitution gave explicit assurances during the ratification debates that the Constitution would not strip States of sovereign immunity.”
There is an extent to which that opinion alludes to the haggling at the founding period, which was necessary to encourage ratification of the Constitution by those factions who would have preferred—indeed had expected—that the newly independent states would be separate (i.e. sovereign) nations after the war. At the same time, however, the notion embodied in the word sovereign is arguably a holdover from English common law, an epic tale in which the English hacked away at, though never quite eradicated, the privileges of its monarchs to do whatever the hell they wanted.
Queen Anne’s Revenge – Against Whom?
At present, historians can only speculate as to why the pirate William Thatch (Teach), a.k.a. Blackbeard renamed his captured French ship the Queen Anne’s Revenge in 1717 or, indeed, who or what the metaphorical target of the late queen’s retribution might have been. It is guessed by some that the British Navy sailor turned pirate espoused a fealty for the Jacobite cause to restore the Stuart line to the throne; or it is theorized that because Thatch fought for the British in “Queen Anne’s War,” the rechristening was a dig at the French from whom he’d commandeered the vessel. Apropos the Jacobite theory, Anne was indeed the last of the Stuart monarchs, and when she died in 1714, the Crown passed to her husband George I, a prince of Denmark and a German speaker. Consequently, the disgruntled Jacobites invoked the “divine right” to argue that the Stuarts were the true heirs to the throne; but, in truth, Anne’s ascension itself could hardly have supported any divine sensibilities.
In fact the Stuart dynasty, beginning with James I in 1603, was rather well pummeled by the unrest that rocked England for nearly two centuries over the matter of whether the Crown or the Parliament was supreme—a fact dramatically manifest in the beheading of Charles I in 1649 following civil war. In this long and byzantine history, all royal prerogatives were, naturally, tethered to the question of the “divine right,” which was of course complicated by factions of religious faith.
While there is no hope of unpacking all that history in a short post, suffice to say that Queen Anne’s ascension to reign over Great Britain in 1707, was a byproduct of the Glorious Revolution that deposed her father James II, and was more generally a result of forces that had substantially limited royal prerogatives. Moreover, Anne’s reign was reportedly marked by a fairly judicious exercise of her authority in balance with England’s nascent republicanism. So if Blackbeard did name his newly acquired flagship in a fit of Jacobite zeal, Queen Anne was hardly an avenging spirit in that regard. Likewise, the copyright law that bears her name is something of an anti-monarchical milestone itself.
The Statute of Anne – A Break With the Sovereign
The short description of the Statute of Anne is that it was the first in Anglo-American law to transform copyright from a publisher’s right into an author’s right. The full story weaves in and out of the aforementioned political/religious turmoil, beginning with the fact that right is not the correct word to describe the monopoly privileges granted by English sovereigns to the more than 100 trade guilds of London, including the organization of booksellers known as the Stationers’ Company. The exclusive “right” to publish—a monopoly that was ad hoc at best—may be described as a proto-copyright regime, but one that has little resemblance to modern copyright law. Regardless, the exclusive privileges granted to the Stationers’ Company, and every other guild in London, were among the royal prerogatives that were often at the heart of conflict in the larger narrative of controversy between royalists and parliamentarians.
It is true that one important feature of the Statute of Anne is that the preamble states that its purpose is to protect authors from unlicensed printing of their manuscripts. Scholars also know the more complicated history that the bill was catalytic to still-murmuring debate as to whether the author’s right is grounded in natural rights or is purely a creature of statute. For the purposes of this post, though, I would note that the Statute of Anne, as an act of Parliament interceding on behalf of authors, is exemplary of the diminished prerogatives of the Crown by the end of the seventeenth century. It represents not only a diminishment in the power of the Stationers’ Company, but a diminishment in the power of the monarch to grant privileges at all.
American Copyright & Citizen Sovereignty
Although the American Framers did borrow both rationale and key mechanisms from the Statue of Anne for the first American Copyright Act of 1790, we cannot overstate the significance of the intellectual property clause in Article I as both a symbolic and pragmatic split with the mother country, and the baggage embodied in her statute. Article I, section 8, paragraph 8 is the first and only mention of an individual right in the Constitution prior to adoption of the Amendments. And particularly with regard to copyright (because it protects expression), I would argue that the clause reinforces the notion that the individual citizen is sovereign, and, therefore, Congress may adopt laws necessary to protect the citizen’s dominion over the products of his or her mind. So, how is it that the “sovereign” State is allowed to invade that principle?
Any number of scholars will very reasonably maintain that American “state sovereign immunity,” affirmed in the Eleventh Amendment in 1795, is both divorced from the spirit of monarchical absolutism and has pragmatic purpose in our federalist system, which is why many legal professionals will use the term “Eleventh Amendment immunity.” Nevertheless, as a practical matter, it cannot be denied that Rick Allen was unable to avail himself of his Constitutional right to hold the State of North Carolina liable for taking his property. Much like kings and queens used to do to their subjects. So the words sovereign immunity are not wholly emancipated from their feudal origins.
American copyright law became something very different from its English precedents, not least because of the First Amendment. England’s proto-copyright regimes were, for centuries, entangled with the state’s authority to approve the publication or distribution of a work in the first place, and many of these regimes lasted into the twentieth century. For instance, the legal basis for the Master of the Revels, who approved works for the stage in Shakespeare’s time, was still extant, albeit in a limited form, until 1968.
The sovereign right of the American citizen to create more or less whatever he or she wants (notwithstanding a few bouts with obscenity laws), represented a significant break with those ancient ties. And a consequence of that split was the greatest output of professional creative works anywhere the world. Yet, as we see in Allen v. Cooper, modern jurisprudence remains haunted by these fragments of history, drawing us back to a time when pirates and princes took what they wanted, and citizens could hardly tell the difference between the two.
Anne photo: by Chris Dorney
Pirate image by: neelix3k
Document: Statute of Anne, London (1710), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
© 2020 – 2021, David Newhoff. All rights reserved.