A lot of people assume that when you pay an artist to create a work of art, that you, the person laying out the cash, is the owner of the copyright. This concept is known as “work made for hire” and has been around for a very long time. But within the law is a pitfall, one that reared its head in Court and cost the hiring party copyright it thought that it owned. Because simply calling something a “work for hire” (WFH) does not necessarily make it so. Even if everyone agrees that it is. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the case law surrounding what happens when the artist is not your employee, but an independent contractor, and what can go wrong in the process.
A recent case involving competing duck shaped pool floats highlights one of the basic tenets of copyright law that many non-lawyers find hard to understand: the idea-expression dichotomy. It stands for the proposition that the idea itself is not capable of copyright. What gets the copyright is HOW the idea is expressed, or “it’s not what you said but HOW you said it.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes through the facts of the case and how they demonstrate that copyright does not extend as far as some people think - or complain about.
Imagine you are a photographer. You find that one of your photographs has been plagiarized by a famous artist, indeed, one of the most famous artists of all time. When you contact them about this, they file suit against you in Federal Court seeking a ruling that they are free to plagiarize your work. Further imagine that the suit has been filed in one of the District Courts that most often side with the plagiarist. What do you? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., discusses the case where this actually happened, the recently decided case of Andy Warhol Foundation v. Goldsmith, and asks: is this the precedent we really want for the art world?
“I have songwriting credits…even though I don’t know how to write a song.” The speaker of this statement is not a musician and has no musical training. His involvement with “creating” the songs in question? Virtually none. He writes computer code. The program he helped create has “composed” over 600 songs, all created with a “push of a button.” Further, his program has a record deal with Warner Bros. Records. What are the implications of using Artificial Intelligence, AI for short, to compose music? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at AI technology, how it works and how it meshes with copyright law, and asks: ”if a human being is not behind the creation, does it qualify for copyright at all”?
On May 1, 2019, photographers got some more good news from a court decision involving the copyrightable nature of photographs. The decision came in the form of a reversal, this from the 11th Circuit Court of Appeals that broadly criticized the District Court’s conclusion that “before and after” pictures taken by a Florida dentist were “not copyrightable.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the reasons behind the Court’s action, and in particular, that in the copyright world “original” and “creative” are not necessarily the same thing.
On April 26, 2019, the Fourth Circuit Court of Appeals handed down a complete reversal of one of the most egregiously wrong copyright decisions in recent memory. The case, Brammer v. Violent Hues, was met with howls of outrage from the photographic community when the opinion of the District Court was handed down. As the opinion of the Court of Appeals vividly demonstrates, they were quite right to feel that way. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., conducts a point by point analysis of the Court’s decision, and how this might become a turning point in fair use analysis.
Texas based Grande Communications has now followed Cox Communications as the second major Internet Service Provider to lose it’s safe harbor from infringement liability under the Copyright Act. They are supposed to, under the terms of the Copyright Act, “adopt and reasonably implement . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders . . .who are repeat infringers.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the facts behind both cases and asks: They know they’re supposed to be doing this, so why don’t they do it?
On March 12, 2019, the Judge in the long-running dispute between the writers of a Dr. Seuss-Star Trek “mash-up” titled “Oh, the Places You’ll Boldly Go!” and Dr. Seuss Enterprises, ruled that Defendants alleged parody was “highly transformative” and fair use, and granted summary judgement to the Defendants. Yet, 20 years before, the Ninth Circuit Court of Appeals in another claim to “parody” or “mash-up” where the facts of the O.J. Simpson murder trial were “re-told” in the style of Dr. Seuss , they ruled that this was not “transformative,” not fair use and infringing. How do we reconcile these two decisions? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a step by step, and sometimes picture by picture, comparison of the two cases, examining how they align, and how they differ.
Consider this problem. You’ve just finished recording your latest batch of songs. The very same day they are released, you go online and register every song and sound recording with the U.S. Copyright Office. Two days later, a friend sends you an email showing that a dozen different pirate sites are offering up your songs for free. You call your lawyer, and insist that lawsuits be filed immediately. Except that your lawyer tells you that you can’t. You might have to wait as long as seven months before you can file any lawsuit. Meanwhile, the infringements will continue unabated. Why? Because this is what the U.S. Supreme Court ruled on March 4, 2019, in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the Court’s ruling and how it will affect copyright litigation in the future.
According the website Metro.co.uk, “A study has found that golden oldies stick in millennials’ minds far more than the relatively bland, homogenous pop of today. A golden age of popular music lasted from the 1960s to the 1990s, academics claimed. Songs from this era proved to be much more memorable than tunes released in the 21st century.” Could this be true? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the reasons why this might, or might not be the case. In the end, the question becomes, does making recording music easier make it better, or worse?