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A recent decision out of the Eastern District of New York featured a significant pushback on the theory that some works do not offer enough “creativity” to qualify for copyright protection. Coming just days before the reversal of the Katy Perry Dark Horse verdict on a similar theory, the case illustrates how litigants have started to misuse and distort the concepts of “originality” and “creativity” in order to attack the bedrock principles of copyright law. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the important rulings in this decision, especially that creativity can be as simple as realizing you’re in the right place at the right time.

Most often, claims of copyright infringement go to the artistic expression contained in a story. Rare is the case that claims a copyright in a character itself. But this is what happened in the case of Daniels v. Walt Disney Company. Plaintiff created a group of colored anthropomorphic characters she named The Moodsters. Each Moodster represents a different emotion. Yet, what makes this case stand out is the Plaintiff in not claiming copyright infringement over the plot of the Moodsters, she is claiming copyright infringement over the characters themselves. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes through the Court's decision, which very clearly defines the test for a claim not frequently litigated.

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 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.