Last month saw the release of the Department of Commerce’s White Paper on Copyright. Specifically, the voluminous (107 page) report took up three specific issues: “Remixes,” broadly defined to include all forms of combining copyrighted works, including “fan fiction;” “The First Sale Doctrine,” especially whether the doctrine should apply to digital goods and “Statutory Damages,” including whether the penalties should be lessened or further guidelines established. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the contentions on all sides of these issues, and suggests where the DOC went right, or perhaps wrong, in their recommendations.
It’s becoming clearer that streaming, the supposed “savior” of the music business, is not up to the task. Despite millions of songs being made available at a low cost or even free, music piracy continues to increase. And for the first time in modern music history, catalog albums outsold new releases. More and more evidence points to the fact that while people love music, they just don’t want to pay for it. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., shares his experience from 26 years as an entertainment attorney, shows how the music business really works, and why the “touring and t-shirts” solution to internet piracy is a fallacy that just doesn’t add up.
On December 29, 2015, Paramount Pictures and CBS Studios filed a lawsuit against Axanar Productions, Inc. and its principal Alec Peters, contending the proposed film uses many elements from Star Trek television series and motion pictures. In response, Axanar claims that it is "fan fiction." Fan fiction arises when fans of a particular movie, book or series of movies or books, create new works involving the same characters, settings and events, usually without the permission of the creators. Additionally, there were cries of "free speech" and "fair use" as a justification for allowing the film to go forward. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the controversy, along with the legal and practical concerns over fan fiction, and asks "why do you want to boldly go where someone has already gone?"
Two months ago, the Wall Street Journal reported that Spotify was not paying a large amount of royalties to songwriters on the songs they played, even though Spotify had a specific legal obligation to do so. Then, other songwriters spoke up and said that they also had songs being played by Spotify, but had never been paid. Is this possible? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., gets directly involved and discovers that this seems to be another example of a tech company that treats obeying the law as a mere inconvenience.
It hasn’t been a good couple of weeks for Cox Communications. The Internet Service provider was hit with a Federal Judge’s decision that because of its business practices, it was not eligible for immunity from copyright infringement committed by their subscribers, or what is generally referred to as “safe harbor.” Wasting no time, Cox’s insurance company, Certain Underwriters at Lloyd’s, London, immediately filed suit in New York State Court, seeking a declaration that it would not be obligated to insure Cox against any damages assessed. Nova Southeastern University’s Copyright Officer, Stephen Carlisle, J.D., explains the 35 page decision, which details Cox’s efforts to not only restrict the number of notices it received, but also keep active subscribers who were known to be serial copyright infringers.
On November 19, 2015, Google announced a new program that will offer to underwrite the legal costs of YouTube posters who are the recipients of an “abusive” DMCA takedown request. The Electronic Frontier Foundation immediately hailed the move, as did several news outlets, including one that breathlessly called it a “game changer.” But does it really change anything? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the program and its likely effect on both those who file takedown notices and those who receive them, and finds it’s really “same game, different day.”
Last week, the New York Times reported that the internationally famous book “Diary of a Young Girl” by Anne Frank had suddenly gained a new co-author, her father, Otto Frank. The reason for this has to do with the copyright afforded Anne Frank. She died in 1945, which means that “Diary of a Young Girl,” having exhausted its “life of the author plus 70 years” copyright term, will enter the public domain in most of the world on January 1, 2016. Yet, the Anne Frank Fonds, the Swiss foundation that holds the copyright in “Diary of a Young Girl,” contends that Anne’s father, Otto, is a co-author of the work, so this seminal work will not pass into the public domain until 2050, 70 years after the death of Otto. Are they right? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the contentions of the Foundation and asks “can you really be a co-author with someone who is dead?”
The internet continues to swirl with the rumors that the Sonny Bono Copyright Term Extension Act (SBCTEA) passed in 1998 was the product of the Walt Disney Company descending upon Congress and lavishing such huge amounts of money on Congress that it overcame their good sense. In some corners of the internet, this story is repeated as the absolute truth. But is it? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., digs into the legislative history of the SBCTEA and the amounts of money Disney paid out, and finds out that what is shocking is not really all that shocking.
In the past month, three more decisions have been handed down on the question of whether a particular use was “transformative” in the context of a fair use defense. These decisions once again highlight that the case law surrounding “transformative use” is a complete mess, and needs to be cleaned up by the Supreme Court absolutely as soon as possible. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the cases and the “transformative” doctrine and highlights the problems which lead to disagreements within the same Court of Appeals.
Bikram Choudhury is the developer of the very popular “hot yoga” system, where a carefully selected series of 26 yoga positions is performed for 90 minutes in a room heated to 105 degrees. The success of the system has made him very wealthy, and litigious. He has threatened and sued yoga studios claiming his carefully arranged system is protectable by copyright law as either a compilation or choreography. Now one rival studio has taken Bikram “to the mat” saying his sequence of poses is not protected by copyright at all. Who’s right? Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., details the major points of the court’s ruling and finds you don’t need to bend over backwards to teach the yoga poses you have in mind.