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.
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.”
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.
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.
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.
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?”
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.
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?
The Mechanical Licensing Collective is here. Created by the Music Modernization Act, the MLC is designed to act as a clearinghouse and payment processor for digital streaming royalties. The good news for songwriters is that you’re going to get paid, where you probably weren’t before. The bad news is you have to do this yourself. You must sign up with the MLC, and create a catalog in the MLC database in order to get paid. This is mandatory. There is no opt out. And with anything that is totally new, and covering such a massive amount of data, there are a few speed bumps along the way. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., shares his first-hand experience in registering works with the MLC, where due diligence, tenacity and following up are the watch words.
The copyright “case of the century” is now over. You would hope that after two trips to the Court of Appeals for the Federal Circuit and now the Supreme Court of the United States we would have a much clearer picture of what is fair use and what is not. Unfortunately, that is not the case. The opinion in Google v. Oracle is a cobbled together mess. For what the opinion really wants to do is rule the declaring code at issue not copyrightable, but does not have the majority votes necessary to issue that ruling. So instead, it leaps over the issue of copyrightability to shoe-horn that argument into a fair use ruling. The result is so scattershot that the Court itself had to issue a warning about its future applicability to items other than computer code. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes and explains this curious ruling.