Bootlegacy: Liz Nevis on intellectual and cultural property

Several authors, including an economics professor, are pretty sure they did. Even the snooty-booty New Yorker has noticed, although New York is far more famous for “corporate pirates” who would have been useful to their high-seas counterparts only as ballast or sharkbait. (BTW, many thanks to Keith Nagel, author of highly useful patent-perusal program IPDiscover, for bringing this article to my attention).

These authors are probably right. Piracy is largely an organized crime; pirate chieftains like Blackbeard, Jean Lafitte, Grace O’Malley, and Madame Chiang commanded sizable fleets. Organizations have to have rules if they want to grow and achieve.

Don’t get me wrong; pirates were (and still are) “not very nice persons at all.” They stole ships and their cargo for personal gain, took prisoners for ransom or slave-price (or addition to the crew if sufficiently useful), and killed anyone who got in their way. Not like, for instance, national navies and letters of marque, which confiscated suspected enemy ships and their cargo as prizes shared by the crew, took prisoners for exchange or impressment into service, killed anyone who got in their way, and were sanctioned by governments and mostly financed by taxes.

My point -and I do have one - is that 17th- 18th-century pirate codes reveal a professional culture exhibiting much more democracy, safeguards for dispute resolution, and merit incentives at all levels than could be found in most governments of their age, and far more than can be found in most legitimate business ventures of our own time. They could certainly be a model for contractual relationships among salvagers and others who, albeit within the local law, profit from things that they find (rather than make or buy).

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This is a Haudenosaunee wampum belt. The Haudenosaunee (”Longhouse Builders,” aka the Six Nations of the Iroquois* Confederacy) used wampum (beads carved from the purple-and-white-striped shell of a quahog clam) for many purposes. Wampum belts weren’t for holding an individual’s trousers up, but for memorializing important agreements, metaphorically minimizing potentially uncomfortable exposure for whole groups, and often their descendants as well.

An elder of the Wisconsin Oneida nation, part of the Haudenosaunee, once told me that every traditional Haudenosaunee prayer is a prayer of gratitude. That’s impressive. Would you rather be in charge of people who say “Thank you” all the time, or people who say “Gimme”?

On this Fourth of July, I feel it’s appropriate to say thank you to the Haudenosaunee for providing a model of federalism for the Founding Fathers - an example of how separate sovereignties (like the newly independent colonies) could function as a nation without losing their separate identities and all of their autonomy.

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This T-shirt means “If you take an amusingly embarrassing picture or video of me, don’t put it on the Web without my permission.” With or without Photoshop embellishments. With or without grammatically incorrect captions. The shirt is a creation of R Stevens, the brain and funnybone behind the underground fave Diesel Sweeties web comic, among so many other things that one wonders if he’s really just one person.

What this shirt is suggesting, to the legal eagle eye, is celebrity rights for the rest of us. The shirt has no legislative or judicial backing - yet. But, just maybe, this idea’s time has come:
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This 29-foot, brilliant-white cross is part of a WWI/WWII/Korean War memorial on Mt. Soledad outside San Diego. The federal government took it over from the city as a historic landmark (a type of cultural property) in May of 2006, after repeated federal court orders to remove it from city land as an improper government preference for one religion over another, beginning in 1991.

The cross can be seen from freeways, public beaches, and other vantage points all over the city. Viewed out of context (as it is by any uninformed observer farther away then the parking lot), it may be a reminder of the role of Spanish missions in California history, or it may seem to announce “This is Christian territory” - reassuring to Christians, maybe not-so-much to others. Even in the context of the memorial function, it may compare any soldier’s death in the service of his or her country to Jesus Christ’s ultimate sacrifice of his life so that others could live, or it may look like “This is a memorial to Christian veterans; other veterans should go get their own.” Some atheists (some of whom were veterans, despite Fr. William Thomas Cummings’ 1942 contention that “there are no atheists in foxholes”) took exception to having their tax dollars support what they saw as a religious advertisement, and filed suit in 1989 to compel the city to either remove it or render the land on which it stood “non-public.” And many years of litigation ensued (sic).

The American Legion and Christian legal groups are launching an initiative to protect crosses on public war memorials from “secular attacks.” (You know a religious-freedom law is working when it can make even the most dominant, powerful religion in the land feel persecuted. : )) On the other hand, many of our country’s historic properties have religious connections - those of the people who made the history in the first place. What happens to the San Diego cross may affect what happens to other publicly-owned historic sites and artifacts.

Must government-supported historic preservation be confined to strictly secular subject matter? Let’s think about this. And for a change, let’s try to describe the existing law accurately.
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What goes around, comes around. Wine tasting is one metaphor; you draw the first sip up one side of your tongue, aerating it noisily in a way that would have gotten you banished from your childhood dinner table, and let it slide down the other, savoring all its flavors and, if you’re in that kind of a setting, searching for coherent words to describe them all.

That sip of wine goes around, then it comes around, then you have to either swallow it or spit it out. Similarly, the U.S. has finally come around, at least a little, to the European perspective on identifying wines with place names - because recently our vintners have, figuratively, walked a mile in the Europeans’ vats.
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OK, so you want to look for sunken treasure - be it monetary, historical, or both. (Or you find out someone else is doing it, you don’t think they should, and you want to see if you can stop them).

You’re in luck, sort of.

The bad news for underwater artifact-hunters is that unless the body of water is completely surrounded by private land, you’ll probably have to get permits from, comply with the regulations of, and possibly split the loot with, some government or other. Even if it is on private land, some environmental laws may still restrict what you can do. The good news (for both hunters and their opponents) is that now it’s well settled which governments have jurisdiction where. This issue was hotly contested between the coastal states and the federal government in the two-decade U.S. v. Florida series of cases.

I’ve prepared a diagram* that shows the types and extents of underwater government jurisdiction in the United States. Click the thumbnail image below to enlarge it:

*All clip-art used by permission of Jupiter Images (subscription when the images were downloaded, + non-commercial use).

In Parts 1 and 2, we heard about the legal travails of Treasure Salvors, Inc., who found and salvaged the wreck of the Nuestra Senora de Atocha. But the curse of curios-in-curiae didn’t end there: even buying, owning, selling, or donating Atocha artifacts had legal ramifications.
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As you’ll have seen in Part 1, the Atocha shipwreck salvage story is a humdinger. It has it all: adventure, wealth, greed, betrayal, violence . . . constitutional interpretation . . . civil procedure . . .

When you’re up to your a** in alligators (or allegations, or litigators), you may not notice the mosquitoes right away, but they’re biting you all the same. While all the federal-court Atocha lawsuits were working their way to the Supreme Court and back, Treasure Salvors, Inc. (TSI) had several investor-contract disputes demanding its attention as well, mostly in state court. Most of theopinions were unpublished or outside the scope of my database subscriptions, and I welcome comments from anyone who knows more about them.

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This is me in 1994 with treasure hunter Mel Fisher, who salvaged the wreck of the Spanish treasure ship Nuestra Senora de Atocha. Mrs. Fisher customarily took pictures like these whenever a visitor to their Treasure Museum (now the Mel Fisher Maritime Heritage Museum) in Key West* bought a gold 8-reale coin (”piece of eight”) from the ship’s haul while she and Mel happened to be in town. That was what I’d just done; that’s my “I’ve been SCUBA diving all morning, wandering around in the sun all afternoon, and now I just spent a pretty big (for me) wad of cash” slightly poleaxed smile. That’s also one of the Atocha’s gold chains around my neck (just for the picture); who knew the Spaniards of 1622 blinged themselves out like the rappers of 1985?

Not until ten years later, in law school, did I learn that this shipwreck was the centerpiece of a litigation train-wreck. There were too many lawsuits to describe in even one of my awfully-long posts, so I’m having to serialize. In stories, sunken and buried treasures are often cursed (I mean “with bad mojo,” not “by people trying unsuccessfully to find them”). But the usual curse symptoms are violent death, or insanity, or something similarly speedy and dramatic. Upon reflection, though, “a long, tangled string of lawsuits on whomsoever disturbs this place” is a pretty good curse.

And, like someone seeing a train wreck, I couldn’t look away.

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