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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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The Ins and Outs, the Good and the Bad, of the Mechanical Licensing Collective

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.

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The Supreme Court Opinion in Google v. Oracle: The Fair Use Mess? Still a Mess

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.

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Dr. Seuss and the Right to “Unpublish”

The decision of Dr. Seuss Enterprises to no longer publish six books of the renowned children’s author created quite the controversy. But more bizarrely, this event caused the anti-copyright crowd to leap into action. They again suggested that DSE should not be allowed to “unpublish” the works, again pushing for the proposition that such a withdrawal should cause the instant creation of some “super fair use” right to publish the works without the consent of the copyright owner. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the controversy, and finds that the decision of Dr. Seuss Enterprises to “unpublish” is more attributable to everyday business practices than “cancel culture,” and is a decision that they alone get to make.

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The Copyright Small Claims Court Is Coming! Except It’s Not Really A Court…

The long considered, and long stymied, copyright small claims bill known as the CASE Act finally passed Congress on December 21, 2020. Since it was included in a “must pass” spending bill, it now has the signature of the President and is enacted into law. But is it really a Court? What, and how can an author effectively make use of this new tool? And lastly, it may be quicker, and more cost effective, but will it actually work? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the major points of this important and novel piece of legislation.

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Court of Appeals Says “No Seuss For You!”

On December 19, 2020, the 9th Circuit Court of Appeals definitively ruled that the Dr. Seuss-Star Trek “mash-up” titled "Oh, The Places You’ll Boldly Go" was not fair use. Specifically, the 9th Circuit ruled that Boldly was not a “parody” of multiple works of Dr. Seuss, was not a “transformative” use and that all four fair use factors favored Dr. Seuss. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a detailed look at this important decision.

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