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.
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?
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.
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.
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.
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.
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.
If someone copied your technical drawings, that would be copyright infringement, since drawings are protected by the Copyright Act. But what if they didn’t copy your drawings? What if they made devices based upon your design contained in the drawings? Would this be infringement? This was the question before the 6th Circuit Court of Appeals last week. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the law and the facts of this highly unusual case and finds that once again, in the realm of copyright, “it’s not what you said, but how you said it” that gets the necessary legal protection.
Why is there the constant push by anti-copyright forces to assert that regardless of the fact that a copyright is your personal property, and something you should absolutely control, that for various absurd reasons, you should not 100% control how it is used? The latest is a proposal from a Stanford Law Professor that argues that works that are not being actively exploited should be available to the public under the doctrine of fair use. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., reviews the case law on the assertion of “use it or lose it” as it applies to copyright, and asks how is the forced divestiture of rights by copyright owners congruent with the concepts of property rights and personal freedom?
The 9th circuit has come firmly down against one of copyright’s more curious dilemmas: namely, claiming that a purely “factual” work nevertheless contains some elements of fiction. This admission is necessary to sue for copyright infringement, since facts are not protected by copyright under 17 USC 102, but works of original expression are. The Court has now issued a bright line ruling: If the Work is held out as being true, the author cannot later claim the contrary. The Court calls this principle the “asserted truths doctrine.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines this controversy over the Broadway play "Jersey Boys," and finds that once you say "it's a fact," you're stuck with it.