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The Latest “Twist” for the “Dancing Baby”: It’s Broke…But Don’t Fix It!

The latest twist in the 10 year old saga of the “Dancing Baby” case happened May 5, 2017. On that date, the U.S. Solicitor General responded to the Supreme Court of the United States' request last October for guidance on whether it should take up the case of Lenz v. Universal Music Group. The brief itself is a complete surprise. It contends that not only did the 9th Circuit get it wrong, but everybody got it wrong. On top of that, the brief contends the SCOTUS should not fix it by taking up the case. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an in depth look at the opinion of the Solicitor General and asks: "You mean it’s broke, but we’re not going to fix it?"


Enjoy the Silence…

A recently introduced bill in the current session of Congress would, for the first time, require radio stations to pay a fee for the performance of sound recordings. Any radio station that refused to pay the fee would allow the owner of the sound recording to prohibit that station from playing the sound recording. Three companies control 87% of all commercially available sound recordings. They wouldn’t choose the nuclear option, and give up all that “free promotion,” would they? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the arguments on both sides and the possible ramifications of the proposed bill.


Could Moderating Your Website Invalidate Your “Safe Harbor”?

Typically, websites use moderators to keep their websites clean of spam, trolling, pornography and harassment. This certainly makes for a better internet experience for the user. But, does this moderating activity amount to “content control” that might cause a website to lose its DMCA “safe harbor” from copyright infringement? A new appellate court decision rules this is indeed possible. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines this recent court ruling and what it might mean for operators of websites across the internet.


It’s Fashion Week at the Supreme Court!

It’s not often that the Supreme Court of the United States gets involved in a dispute over a dress, but that’s the case in Star Athletica LLC v. Varsity Brands. This long running case involves what parts, if any, of a cheerleader’s outfit are protected by copyright. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., walks through the majority, concurring and dissenting opinions and separates the functional from the fanciful.


New York Court of Appeals Says No Performance Rights for Flo and Eddie: “Poof” Goes Five Million Dollars

The Flo and Eddie settlement with Sirius XM guaranteed a payment of $25 million, but the remainder of the payments were contingent on the outcome of various pending court decisions in New York, California and Florida. Now, the New York Court of Appeals has weighed in, ruling against Flo and Eddie, and with the stroke of a pen made $5 million vanish out of the settlement fund. Even though the same Court had ruled that New York common law protected pre-1972 sound recordings, it now rules that this did not extend to the performance right. Why? Because they never said that it did. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the ruling and logic of the Court and asks, since when did not saying something make it the law?


Judge Takes Phaser off “Stun,” Disintegrates “Fan Film’s” Flimsy Fair Use Defense

On January 3, 2017, a Federal Judge granted the majority of Paramount Pictures grounds for summary judgment in the one year old lawsuit against supposed Star Trek “fan film” Axanar. Star Trek fans know that most of the time phasers are set on “stun.” Here, the Judge instead set his phaser to “disintegrate” broadly ruling against Axanar and its principal, Alec Peters, on a number of points. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an in-depth look at the judge’s ruling in this important “fair use” decision.


The Copyright Small Claims Court: If You Build It, Will They Come?

An idea that has been bandied about for some time is now closer to becoming a reality: the Copyright Small Claims Court. This was first proposed by the Copyright Office itself back in 2013, followed by a bill proposed by Representative Jeffries and Marino in July of 2016. On December 8, House 2016 Judiciary Committee Chairman Bob Goodlatte and Ranking Member John Conyers, Jr. proposed a Copyright Small Claims Court, and the very same day, Representatives Judy Chu and Lamar Smith filed a bill also calling for the creation of a Copyright Small Claims Court. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the good and the bad of the latest proposal and asks: “Is anyone really going to use this?”


Gentlemen, Hedge Your Bets! Inside the Flo and Eddie-SiriusXM Settlement

On November 14, 2106, literally “on the eve of trial” over the amount of damages SiriusXM might owe Flo and Eddie, Inc. due to the unauthorized use of its sound recordings, a motion was filed with the trial court announcing the parties had settled the case. What seemed curious at the time was that this trial was not the only fight going on between the two. Similar lawsuits were filed against SiriusXM in both New York and Florida. Plus, SiriusXM has long contended that it cannot change its programming to suit the laws of one state. So, how would this settlement affect the ongoing litigation? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains how the settlement will work and how it will affect your rights, and payments, as a copyright owner in a pre-1972 sound recording.


Have Great Minds Stopped Thinking Alike? The Split of Opinion within the Second Circuit on Copyright

There’s an adage that posits “If everybody’s thinking the same thing, then nobody’s thinking.” This line of reasoning seems to be on display at the Second Circuit Court of Appeals. This blog recently reported on a remarkable Second Circuit opinion regarding transformative use that appeared to “walk back” the expansive view given this doctrine by a previous panel of the same circuit in Cariou v. Prince. Again, last week saw yet another panel walk back the extreme ruling of the same circuit in Capitol Records v. Vimeo with a ruling in the case of EMI Christian Music v. MP3tunes, LLC. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the two opinions and whether the Second Circuit is indeed pulling back from some of it’s more extreme positions regarding copyright.


Who’s On First? “Nobody” Says Court of Appeals

Abbott and Costello’s classic comedy routine, best known as Who’s On First?, was back in the spotlight this week as the centerpiece of an interesting ruling from the Second Circuit Court of Appeals. Unfortunately for the heirs of the great comedy duo, it was a good news, bad news joke: the Court ruled that fair use did not protect the verbatim copying of the comedy routine into a Broadway play, but ultimately the heirs failed to prove they owned the copyright to the routine, making the dismissal correct, albeit for the wrong reason. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J. D., explains why the Court’s decision against the copyright owners in this case is nevertheless an important statement on the intricacies of the “transformative use” test.