On March 16, 2020, the trial judge in the Katy Perry Dark Horse case surprised a lot of people by outright reversing the jury’s finding of infringement and resulting award of damages. Many commentators felt the verdict was eroding the lines between what is slightly similar and what is substantially similar. But in reversing the jury’s verdict, the Judge says that none of that matters. The reason is that the Judge rules that the four bar ostinato of Joyful Noise does not contain protectable expression. So even if copied, it could not support a finding of infringement. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the Judge’s reasoning and asks: “if you are a music composer, are you really happy about this”?
On Match 23, 2020, the Supreme Court ruled that States cannot be held liable for committing copyright infringement due to the 11th Amendment. This confers "sovereign immunity" on the States from being sued in Federal Courts. This is despite a specific law passed by Congress that allowed copyright infringement suits to be brought against States. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the reason for this ruling, and asks “what prevents State governments from becoming real pirates”?
The long running battle between the Randy Wolfe Trust and Led Zeppelin over “Stairway to Heaven” concluded in the most unusual fashion, with the full panel of the 9th Circuit reversing its own previous panel’s ruling reversing the jury verdict. The two main takeaways from this latest decision is that the 9th Circuit has made it harder to win copyright infringement suits. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., discusses how the “sheet music limitation” rule and repeal of the “inverse ratio rule” will affect future copyright infringement litigation.
A musician and copyright attorney recently claimed to have used a computer program to compose every possible melody and then injected them into the public domain. Along with a computer programmer, he instructed the computer to come up with every possible variation of eight notes within a single octave, a total of 69 billion melodies. Why do this? Supposedly to make it harder to bring copyright infringement lawsuits as now all melodies would have passed into the public domain. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., dives into the methodology of the program and the realities of popular music to answer the question: Does this really work?
On January 6, 2020, a District Court ruled against a video bootlegger’s frivolous fair use defense of “there’s nothing wrong with posting concert videos”. The Court not only ruled against the bootlegger on every point of the fair use defense, but found his infringement “willful,” which will allow Prince’s Estate to seek enhanced statutory damages at trial, and issued a permanent injunction. Under normal circumstances, one should be happy about such a resounding victory for the Estate of one of the 20th Century’s most important and influential musical artists. But how much did it cost? What happens when you’re an average musical artist in the age of streaming where the payout is measured in 100ths of a cent? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., looks at the facts of the case, and explains how flimsy and frivolous defenses can turn a simple case of copyright infringement into an expensive fight.
A recent decision of a Federal District Court once again demonstrates why copyright is not the huge drag on free speech that opponents contend that it is. The fact is that copyright will not operate to suppress a work where the similarities that exist between two works arise from the treatment of common ideas. Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., examines the claims made by competing movies involving free-lance journalists, and explains why all similarities do not necessary mean copyright infringement has occurred.
On July 30, 2019, a Federal Jury returned a verdict that Katy Perry, along with co-writers Jordan Houston (p/k/a Juicy J), Lukasz Gottwald (p/k/a Dr. Luke), Sarah Hudson, Max Martin and Henry Walter (p/k/a Cirkut)[i] were all guilty of copyright infringement. Then, on August 1, 2019, that same jury decided that these Defendants and Capitol Records owed the Plaintiffs millions of dollars in royalties. Coming on the heels of the verdict in the “Blurred Lines” case, many reacted with shock. The apparent problem is that the two songs are not substantially similar, but the parts that are similar are nearly identical. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the music present in both songs, and presents a rationale for why the jury ruled as it did.
A lot of people assume that when you pay an artist to create a work of art, that you, the person laying out the cash, is the owner of the copyright. This concept is known as “work made for hire” and has been around for a very long time. But within the law is a pitfall, one that reared its head in Court and cost the hiring party copyright it thought that it owned. Because simply calling something a “work for hire” (WFH) does not necessarily make it so. Even if everyone agrees that it is. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the case law surrounding what happens when the artist is not your employee, but an independent contractor, and what can go wrong in the process.
A recent case involving competing duck shaped pool floats highlights one of the basic tenets of copyright law that many non-lawyers find hard to understand: the idea-expression dichotomy. It stands for the proposition that the idea itself is not capable of copyright. What gets the copyright is HOW the idea is expressed, or “it’s not what you said but HOW you said it.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes through the facts of the case and how they demonstrate that copyright does not extend as far as some people think - or complain about.
Imagine you are a photographer. You find that one of your photographs has been plagiarized by a famous artist, indeed, one of the most famous artists of all time. When you contact them about this, they file suit against you in Federal Court seeking a ruling that they are free to plagiarize your work. Further imagine that the suit has been filed in one of the District Courts that most often side with the plagiarist. What do you? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., discusses the case where this actually happened, the recently decided case of Andy Warhol Foundation v. Goldsmith, and asks: is this the precedent we really want for the art world?