January 26, 2024 saw a jury return one of the most head-scratching copyright verdicts in recent memory. It ruled that a photograph and resulting tattoo of jazz icon Miles Davis, despite being hailed by the Defendant as being “identical,” were somehow not substantially similar to each other. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an inside look at the case, including the evidence and the jury verdict form, and finds what has emerged is confusing indeed.
Two recent court decisions highlight the wisdom of registering your claim for copyright as soon as possible. The reason being that while registration itself is not required for copyright protection, any meaningful enforcement of that copyright requires that registration be accomplished, and accomplished promptly. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains how prompt registrations carry with them two significant litigation advantages: the ability to recover statutory damages, and the ability to request an award of prevailing party attorney fees to be paid by your opponent.
One of the great “truisms” of anticopyright groups is that copyright is somehow this incredible drag on the publication and availability of works. And the remedy for this is to push works into the public domain as quickly as possible. But yet, like so many other “truisims,” once you dig into the reality of the situation, the assertion is simply not true at all. The proof lies in a recently released study that finds that books under copyright protection outsell books of the same vintage which are in the public domain by a ratio of almost 4 to 1. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., makes a detailed analysis of this remarkable study which proves that copyright is beneficial to both the public and authors.
The Court of Appeals for the District of Columbia released a rather surprising decision regarding the Copyright Acts’ requirement that books published in the U.S. provide the Library of Congress with two copies of the work. Surprising in the fact that the deposit requirement has a long history in the Copyright Act and the requirement had not been challenged despite being on the books for some 40 years. The decision also caused some confusion in that the deposit requirement appears in two difference sections of the Copyright Act. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the vital differences in the two sections, and why the Court’s decision may only have minimal effect.
One of the dangers of “fan fiction” is that the author of the work may suddenly decide that a subsequent work by the original author plagiarizes their work. That’s exactly what happened in a recent copyright case in California. The writer of an unauthorized sequel to “The Lord of Rings” sued the Estate of J.R.R. Tolkien and Amazon asserting that the streaming series “The Rings of Power” infringed upon his work. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at what is becoming a more frequent legal action, and what the law has to say about the rights of unauthorized “fan fiction.”
“This lawsuit is about Piracy, Greed and Revenge.” So opens Rick Allen’s amended complaint against the State of North Carolina for effectively injecting his copyrighted video footage into the public domain. Yet, now, North Carolina attempts to end the case by repealing “Blackbeard’s Law,” the statute at the heart of the controversy. NSU's Copyright Officer, Stephen Carlisle, J.D., examines the long and complex history of this highly unusual case, and the legal theories behind when copyright infringement becomes an “unlawful taking” prohibited by the U.S. Constitution.
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.
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.
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.”
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.
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