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“What’s Next?” Thought Pooh. “Because I Just Found Out I’m a Trademark Too!”

The fact that Winnie the Pooh, Piglet and Eeyore have all passed into the public domain does not make the future of these characters as clear cut as one would think. Certainly one could copy the existing book “Winnie the Pooh” and create new stories about him as well. But new Winnie the Pooh movies? Not necessarily. All of the Pooh movies originated with the Walt Disney Company, who not only holds the copyright but also has obtained Federal Trademark registrations on Pooh, Piglet and Eeyore for uses in conjunction with motion pictures. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains this rather strange confluence of copyright and trademark law and what it might mean for the future of these beloved characters.

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“Oh Bother!” said Pooh. “I’ve Gone into the Public Domain” “So Why Are People Celebrating?” asked Piglet

Winnie the Pooh is one of the most profitable characters in the entertainment business. With an estimated all time revenue of over $80 billion, Pooh ties Mickey Mouse for third on the list and trails only Pokemon and Hello Kitty. Now, the first Pooh book, “Winnie the Pooh,” has gone into the public domain, but not the subsequent books, including “The House at Pooh Corner,” which include the first appearance of the character Tigger. Yet, in the anti-copyright corners, this is cause for “celebration.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., details the arguments put forth and finds that the reasons for “celebrating” the public domain are just tired rehashing of arguments Congress and the Supreme Court have already rejected.

Winnie the Pooh

Who Owns Iron Man, Spider-Man and Daredevil?

Many headlines were generated on September 24, 2021, when Marvel Characters, Inc. filed a series of lawsuits against many former Marvel Comics illustrators. The suits, filed in New York and Los Angeles, all have the same basic fact pattern and asked for the same relief. The suits sought a declaratory decree that the termination notices served on Marvel by the authors and heirs of the former Marvel illustrators were invalid. At stake are the characters Iron Man, Spider-Man, Daredevil, Ant-Man, Hawkeye, Dr. Strange, Black Widow, Falcon, Thor and more. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the law at the center of these lawsuits, and why “The Marvel Method” of how these iconic characters were created looms large over the ultimate outcome.

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“Electric Avenue” Derails Trump Train

On September 28, 2021, a District Court denied a motion to dismiss a lawsuit based on one of music composers pet peeves: use of their music in political campaigns. Many times, this occurs when songs are used at campaign rallies. The composers feel that this is an implied endorsement. The campaigns usually rely on a license from the performing rights organizations. However, sometimes the use is in a campaign video, and since this is a “synchronization” use, it absolutely requires a license and absolutely requires permission, even in the internet age. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the latest dispute between songwriters and political campaigns, especially the claim that any political use is automatically “transformative.”

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Re-Recording Your Old Songs: How Taylor Swift is “Shaking Off” Her Old Record Company

On September 17, 2021, Bloomberg News reported that Taylor Swift had released a re-recorded version of the 2014 hit “Wildest Dreams.” She has been doing this to her old recordings since 2020, and all indications point towards her continuing to do so. But the re-recorded versions sound almost exactly like the original recordings. How is this possible under the copyright law? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines both the law of contracts and copyright to explain how this unusual situation came to be.

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Doing the Sovereign Immunity Shuffle: Inside the Copyright Office Report on State Infringements

In the case of Allen v. Cooper, the Supreme Court of the United States ruled that the State of North Carolina had sovereign immunity from liability for copyright infringement lawsuits, and that Congress’ attempt to remove that immunity was unconstitutional. However, the Court did suggest that Congress could fashion a remedy based upon a legislative record which supported such an action. It suggested that Congress may validly abrogate sovereign immunity if it has a sufficient record of unconstitutional infringement by states. To this end, the Copyright Office filed a Notice of Inquiry (NOI) inviting public comments in an attempt to determine whether such a legislative record was possible. The full report was published August 31, 2021. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the findings of the 110 page report, and finds that what the Copyright Office recommends is less than decisive.

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Warhol v. Goldsmith: Court of Appeals “Rolls Back the Tide” on the “High Water Mark” of Transformative Use

On August 24, 2021, The Second Circuit Court of Appeals released its second opinion in the case of Andy Warhol Foundation v. Goldsmith. It not only boldly affirmed its prior ruling in March of 2021, it flatly refuted the notion that the Supreme Court’s decision in Google v. Oracle had any impact on the case. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., presents an in-depth analysis of the Court’s ruling, and finds that at long last the question of whether a “transformative work” is really a derivative work in disguise is brought to the forefront.

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Can You Infringe on an Infringement?

An interesting story popped up last week. It seems an eagle-eyed reader noticed some great similarities between the gay erotic novel “Paid to Kneel” by Romilly King and a similar story posted on the internet. While the comparisons posted by the reader on Twitter are hard to read, it does seem like there was extensive copying, and a lot of it word for word. The original author was able to get “Paid to Kneel” removed from its listing on Amazon. But what was plagiarized was “fan fiction” based on the defunct TV series “Supernatural.” Since unauthorized derivative works are themselves infringements, Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., asks “can you infringe on an infringement?”

Question Heads

Get It In Writing! Or Else!

Two recently decided cases show the utmost importance of getting agreements regarding copyright ownership in writing. The penalty for not doing so? Spending years in Federal Court, and thousands of dollars litigating the issue. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines these two cases, and one old case, which clearly demonstrate that not getting a written agreement is not always fatal to your case, but makes winning it very difficult.

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Photographers Lose Latest Attempt to Bring State Infringers to Justice

Following up on the Supreme Court’s decision last year in Allen v. Cooper that States can commit copyright infringement with impunity, a novel legal theory proposed by Texas photographer Jim Olive to reign in States that infringe has met the same fate. Olive argued that the infringement of his photograph by the University of Houston was an unlawful taking of his personal property by the government of Texas, in violation of the 5th Amendment of the U.S. Constitution and Article 1, Section 17 of the Texas Constitution. How did the Court rule? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the Court’s reasoning and asks, are all State Universities now free to become pirates?

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