THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Monday, December 19, 1994 TAG: 9412190064
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 157 lines
Diver Gary Gentile had a big scoop. He had just spent two weeks on the floor of the Atlantic Ocean, exploring the mysterious shipwreck Lusitania.
Now Gentile, a renowned shipwreck author, was ready to share his adventure with the world. A national diving magazine offered him$2,000 to $4,000 for a story and pictures.
And then, trouble.
As Gentile was writing his story, a letter arrived at the magazine's office. It was a warning from a Virginia Beach maritime lawyer: Print Gentile's story and pictures, the letter warned, and we'll see you in court.
``The law recognizes the value in unique images,'' says Glen A. Huff, a lawyer representing the purported owner of the Lusitania. ``You can't take photos of the thing and sell them'' without the owner's permission.
So began a legal battle that is potentially more lucrative - and certainly more unusual - than your run-of-the-mill shipwreck case.
This case, however, poses issues well beyond the narrow question of who owns silverware and other items from the World War I wreck:
Can someone own the photographic rights and ``intellectual property'' rights to a historic wreck?
And can the owner prevent rival divers from writing stories and publishing pictures of his wreck?
U.S. District Judge J. Calvitt Clarke Jr. may answer those questions this spring. A trial is scheduled for March.
Meanwhile, divers and authors around the country are watching with interest. They say their livelihoods may be at stake.
``For the past 10 years I've made a good chunk of money writing about shipwrecks and I've never encountered anything like this,'' says Cathie Cush, executive editor of Underwater USA, a monthly diving newspaper. ``Part of it really frightens me. If they rule (against Gentile), I don't want to think about the implications of that.''
Lawyers for the ship's purported owner agree it is a rare claim. It may even be the first of its kind. ``I don't think there are really anyexperts in this field,'' Virginia Beach lawyer Richard T. Robol says, ``because it's still a developing area.''
Lawyers for the purported owner say it is a crucial point for shipwreck entrepreneurs. If a shipwreck owner does not have ``intellectual property'' rights to the vessel, then he might have to strip the ship to keep himself - and his diving expeditions - afloat.
That would be tragic for an historic wreck like Lusitania, they argue.
``The value in a wreck is either in her images or in stripping her,'' Huff says. ``If you go the latter route, you wind up destroying the very thing that makes the thing valuable.''
Gentile says the concept is absurd, a case of blatant censorship.
``There's never been a case where a shipwreck was considered a piece of intellectual property,'' says Gentile, who has published a dozen books on famous wrecks. ``When you think of it, it's a pretty all-encompassing concept. photograph of anything.''
The Lusitania, a British luxury liner, is perhaps the most famous shipwreck in the world after the Titanic. It was sunk by a German submarine in 1915, early in World War I. About 1,198 passengers and crew were killed, and the sinking helped push America into the war. The wreck lies 12 miles off the Irish coast, about 300 feet underwater.
The battle over the wreck of the Lusitania is being fought in Norfolk's federal court, which has a national reputation in maritime law. Although the Lusitania sank 79 years ago, no American court has ever determined who owns the wreckage.
On one side is F. Gregg Bemis Jr., a millionaire businessman from Santa Fe., N.M., who claims he and two partners bought the ship from its insurers in 1968. Bemis filed his claim to the ship in February, shortly before National Geographic produced a TV special and magazine story about diving to the wreck.
Bemis took part in that dive, and National Geographic paid him $52,500 for the right to explore the vessel and publish its findings. That contract, Bemis says, proves his ownership of the Lusitania and all photographic and story-telling rights.
``That shows there is some acceptance in the industry'' of Bemis' claim, said Huff, his attorney.
Now, National Geographic is backing away from the dispute. Responding to a reporter's request last week, the company issued a two-sentence statement and declined to answer questions about it.
``The National Geographic Society agreed in July 1993 to a document stating that, to the best of its knowledge, Gregg Bemis was the sole owner of the Lusitania,'' the statement says. ``At that time, the Society had no knowledge of any competing claim.''
Actually, there were two competing claims.
The first is from a Boston-area widow named Muriel C. Light. Her late husband was a partner of Bemis' in the Lusitania in the late 1960s. She claims Bemis defrauded her husband of his share of the ship. That claim is pending.
The second claim came from Gentile, who maintained the Bemis had abandoned the wreck. In June, he defied Bemis' warnings to stay off the shipwreck. Instead, he led a team of divers on a two-week exploration of the ship.
Gentile insists he did not take anything from the wreck, but three colleagues have acknowledged doing so.
Judge Clarke threw out Gentile's claim to the wreck this month, saying it was filed 2 1/2 months after the court-imposed filling deadline. The dispute between Bemis and Light, and the larger issue of intellectual rights, remains.
It came to a boil recently when Gentile sold an article and pictures of his Lusitania dive to Rodale's Scuba Diving magazine. Soon after, the magazine received the warning letter from Bemis' lawyer.
So far, the magazine has not published Gentile's story and pictures, but that's not because of Bemis' threatening letter, said executive editor Steve Blount.
``I don't put much stock in it,'' Blount said. ``There is an intimidation factor and it's pretty clear that was their intent. . . . I'm not aware of any court that's upheld this concept.''
Bemis' lawyers insist the ``intellectual property'' claim is real.
They compare the ship to a private house. Anyone can photograph the house from outside, from a public sidewalk or street. Likewise, anyone can photograph the ship from the outside, from the ocean floor, they say.
But if a photographer enters the house or ship without the owner's permission, that is trespassing, and any photos or stories derived from that would be illegal, they say.
In a separate legal action, Bemis has sued Gentile and his three diver friends for $240,000, charging them with trespass, piracy, conspiracy and taking ``tangible and intangible property, information, intellectual property rights, images and other property that is rightfully that of Bemis'' during their June dive.
``They took things and covered up that they took things,'' says Robol, Bemis' lawyer.
What will Bemis do if the diving magazine prints Gentile's story and photos, despite the lawyers' warning?
``We'll have to cross that bridge when we come to it,'' Robol said. ``We'll be very, very disturbed if they do.'' MEMO: WHO HAS JURISDICTION OVER THE WRECK?
Before Judge J. Calvitt Clarke Jr. decides who owns the Lusitania, he
must decide a more basic question: Where is the Lusitania?
If the shipwreck lies within Ireland's territorial waters, Clarke
could throw the case out of U.S. courts. Then it would be a matter for
Irish courts.
At a hearing this month, Clarke said he would gladly give up the
case. ``The Irish courts would be far better able to police who's
diving,'' Clarke said.
So far, no Irish judge has offered to take it.
At a Dec. 8 hearing, both sides tried to prove the shipwreck is
inside, or outside, of Ireland's 12-mile territorial limit.
To prove the point, experts used a British sea chart. First, the
experts carefully plotted Ireland's 12-mile limit. Then they carefully
plotted the shipwreck's location.
The line passed through the shipwreck.
In the end, it may not matter where the wreck lies. The only two
claimants are American citizens. For that reason, Clarke may decide that
the case belongs in U.S. courts no matter where the shipwreck lies.
Clarke said he will rule on the issue later this month.
ILLUSTRATION: Photo
Lusitania sank 79 years ago...
Map
KEYWORDS: INTELLECTUAL PROPERTY SHIPWRECK by CNB