The Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith was a great first step in reigning in the vast over importance that Courts have been ascribing to “transformation” in fair use cases. While the majority of commentators have focused on the “common commercial purpose” aspect of the decision, the equally important holding is the Court’s recognition and affirmation of the importance of the author’s right to prepare derivative works. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a deep dive into the Court’s opinion (including the dissent) and explains how the concept of “transformative use” almost made extinct one of the author’s most valuable exclusive rights under the Copyright Act.
The Ed Sheeran Verdict: Right for the Wrong Reason?
On May 4, 2023, a jury unanimously decided that Ed Sheeran’s song “Thinking Out Loud” did not infringe Marvin Gaye’s classic “Let’s Get It On.” This is undoubtedly correct as the songs are not substantially similar. But the jury never got there. Instead, it ruled that Sheeran and co-writer Amy Wadge had “independently created” “Thinking Out Loud.” But independent creation is a defense that normally arises when the Defendant claims to have never heard the song, which is not the case here. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes apart the basic elements of both songs to explain why the jury decision is correct, albeit probably for the wrong reason.
Calling Yourself A “Library” Does Not Make You A Library, Calling Copyright Infringement “Controlled Digital Lending” Does Not Make It Legal
March 24, 2023, saw the release of the District Court ruling in Hatchette Book Group v. Internet Archive, the long running battle between several book publishers and the Internet Archive over the practice of “Controlled Digital Lending.” The concept of CDL was made up out of thin air. It appears nowhere in the Copyright Act. It was dreamed up to give the Internet Archive the patina of legitimacy as a self-stylized “library.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the Court's rather decisive ruling that CDL is not legal and never has been. As the Court ruled “[N]o case or legal principle supports that notion. Every authority points in the other direction.”
Copyright Office Clarifies Policies Regarding Copyright for AI Assisted Works (Sort Of)
Consider these headlines: “U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted” and “U.S. Copyright Office says some AI-assisted works may be copyrighted.” Who’s right? Unfortunately, both of them. On March 16, 2023, the U.S. Copyright Office issued new rules regarding the registration of works assisted in whole or in part by artificial intelligence. The new rules, however, foundered on one basic flaw: a work created by AI is not eligible for copyright protection, but a work that is created in part by AI is protectable. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., cuts through the confusion and suggests how the registration problem might be solved.
Artificial Intelligence Art Is Certainly Fair Use! Umm – Not So Fast
Art created by artificial intelligence has been making lots of headlines lately. Among the headlines are three lawsuits filed against Stability AI by artists and companies upset that their work has been ingested and used to train the program, all without permission or compensation, including one class action. In responding to that suit, a Stability AI spokesman responded with the insult that “Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., stacks up the facts of the case against Stability AI with the existing case law, and finds that Stability AI is highly overstating its legal position.
The “Public Good” of the Public Domain: Now You Can Watch Winnie the Pooh Decapitate a Girl with an Axe
Every year on January 1st, various copyright skeptics assemble to sing the praises of works going into the public domain, and indeed call for celebrations! Because of this phenomenon you can now thrill to the sight of Winnie the Pooh in a swimming pool, decapitating a screaming young girl with an axe. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the so-called “benefit” of works passing into the public domain and asks: Does the new author actually “build” on the work they are copying from? Or do they merely use the famous work as an attention getting device and avoid, as the Supreme Court has said “ the drudgery of having to work up something fresh”?
You Can’t Compare Apples to Oranges – So AI Artist Compares Fruit to Copyrights
We are instructed from the earliest age that you can’t compare apples to oranges. Yet, in the never-ending quest to grant copyright to artwork created by artificial intelligence, we get just that argument– and more. A piece of fruit, or in the alternative, a calf birthed by a cow, is compared to an intangible intellectual property right, in this case, a copyright. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes on this novel argument as well as the contention, that despite not being a sentient being, a machine can transfer a copyright to the machine’s owner.
The Myth of the “Mickey Mouse Protection Act” Has Reached its “Sell By” Date
It’s about time for the myth of the “Mickey Mouse Protection Act” to take its final bow. Of course it was never true, but that did not stop people from ginning up publicity by declaring that the Sonny Bono Copyright Term Extension Act, passed in 1998, was all about protecting the property of Disney and particularly Mickey Mouse. And when that expired, they claimed that Disney was fully prepared to DO IT AGAIN, and receive a further extension. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains why the “Mickey Mouse Protection Act” was a myth, and continues to be a myth, and that “Steamboat Willie” will enter the public domain on January 1, 2024, right on schedule.
Copyright? In The Sistine Chapel?
When visiting the Sistine Chapel in Rome, visitors are told two things: no talking and no photographs. Yet, just up the road in Milan, visitors are allowed to take pictures of Da Vinci’s “The Last Supper,” which is in much worse shape than the Sistine Chapel ceiling. So why the “no photos” edict? According to our tour guide, the Vatican in part paid for the restoration of the artwork by assigning the copyright in the Sistine Chapel ceiling to the restoration company. Really? Copyright? In a series of paintings that are 500 years old? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., digs into this story to find out what’s fact and what’s fiction about this most famous series of paintings.
Gotta Dance! Just Not That One
Choreography is protected by the Copyright Act. Yet, lawsuits alleging copyright infringement in dance routines are rare. Perhaps the reason why was revealed last week where a recently filed suit over dance moves incorporated into the video game Fortnite failed to make it past a motion to dismiss. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the reason why it is that the copyright extends to the entire work, not individual dance steps or poses.