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No More Old Wine in New Bottles: Simple Remastering Does Not Create New Sound Recording Copyright, Rules 9th Circuit

On August 20, 2018, the 9th Circuit Court of Appeals reversed a lower court ruling that basic digital remastering of pre-1972 sound recordings created a new sound recording copyright. The lower court ruling presented two problematic consequences, namely that by continually remastering a sound recording, the owner could in effect create a perpetual copyright and frustrate an artist’s right to terminate the work under the Copyright Act. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the new ruling, and discusses what creative aspects must be present in the updated sound recording, now that the “old wine in new bottles” approach has been rejected.


Why Are Record Companies Dumping Their Spotify Stock?

Streaming is the future of the music business. Everybody knows this. Except, it appears, the record companies. On Tuesday, August 7, 2018, in an earnings call with stock analysts, Warner Music Groups revealed that it had now sold all of its holdings of stock in Spotify, realizing $504 million. This is the culmination of a trend. Within one month after Spotify’s shares first traded publically in the United States, the labels immediately started dumping their shares. In fact, almost immediately after public trading, Independent Record Label Global Digital Rights Agency sold 100% of its shares in Spotify. What’s going on? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines Spotify’s revenue and expenses, as well as its business model, and shows that it’s not all unicorns and rainbows at the streaming giant.

down the drain

9th Circuit Rejects Courts’ “One Size Fits All” Bit Torrent Ruling

In a recent case from Oregon, a District Court refused to award attorney’s fees to a successful Bit Torrent Plaintiff. The Court justified the denial partly because the same attorney had filed over 300 copyright infringement cases, thus indicating an “overaggressive assertion of copyright claims.” The Ninth Circuit, in reversing, pointedly noted that the large amount of copyright cases was due in part to the District Court’s own case management order which limited Bit Torrent plaintiffs to suing one defendant at a time. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines how Court rulings have made the mass filings of Bit Torrent lawsuits inevitable, and that the old adage of “be careful what you wish for” should guide future rulings in this area.

one size fits all

Court Rules “Utilitarian Advertising” Photograph Not Protected by Copyright

Less than 10 days after a truly terrible decision against photographers, comes another court decision that rules “before and after” photographs of a dental patient were not entitled to copyright at all. The case holds that the “photographs…lack any creativity or originality primarily because they serve a utilitarian end—to identify goods or services that a viewing customer can expect from the business.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., discusses the continuing problem that courts have when dealing with cases involving photographs - namely, they fail to realize that many times what happens before the shutter is pressed is the creative aspect.


Court Rules Photographs are “Factual Depictions;” Copying Them Is Fair Use

On June 11, 2018, another head scratching decision came out of the Eastern District of Virginia, one that has the potential to seriously erode the copyright protections afforded photographers. Here, the Court ruled that photographs are "factual depictions," which lessens the strength of the copyright on the grounds that such works are less "creative." Since all photographs capture precisely what is in front of the lens when the shutter is pushed, this devalues the creative content of all photographs. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the logical and legal problems that may result out of this truly dangerous ruling.


Will the “Mark” of Zorro Defeat Court’s Public Domain Ruling?

Characters like Zorro and Sherlock Holmes are enduringly popular. So enduringly popular, that they outlive their copyrights and enter the public domain. Trouble is that the owners of the rights to these characters try everything they can think of to prevent rival stories being released to the public. On May 11, 2018, a Federal Court ruled that Zorro was firmly in the public domain and a rival musical “Z - The Musical of Zorro” did not infringe on any rights held by Zorro Productions, Inc. Problem is that Zorro Productions Inc. holds a registered trademark on the mark “Zorro” for “theater productions.” Will this work? Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., explains this gambit and what it might mean for future public domain characters.

crossed swords

Court of Appeals tells PETA to Stop Monkeying Around

The very strange case of the “monkey selfie” finally got the end it deserved, a truly wild case in which the Court, not the participants, refused to let the case die. The “animal rights” organization People for the Ethical Treatment of Animals filed suit against photographer David Slater on behalf of a monkey, or more correctly, a crested black macaque, claiming it owned a copyright in a famous “selfie” photo. PETA lost at the District Court level, and looked like it was headed for defeat at the 9th Circuit Court of Appeals, when PETA abruptly tried to get its own case dismissed. The Court was not amused. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., reviews the long history of this case and takes a look at what happens when an advocacy group tries to make extremist ideology into law.


Court Rules Unauthorized Concert Recordings Should Have Stayed in the “Vault”

Bill Graham was certainly one of the most well-known concert promoters of the 1960’s and 1970’s rock music scene. He also made audio and video recordings of the bands that played his venues, without getting any approvals or permissions from the performing artists. This massive treasure trove of recordings which “reads like a veritable who’s who of rock, soul, and alternative music, containing the performances of The Rolling Stones, The Who, the Grateful Dead, Willie Nelson, Ray Charles, Aretha Franklin, and Carlos Santana, to name a few” is known as “Wolfgang’s Vault,” after Bill Graham’s childhood nickname. After Graham’s death, these videos and recordings were sold to a company that put them up on the internet for live streaming and downloads. Licenses? None. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the April 9, 2018 decision by a Federal Judge, ruling that these recordings should have been left “in the vault.”

vault with money

These Are the Droids You’re Looking For: Google’s Copying Not Fair Use

In a significant ruling on March 27, 2018, the Court Appeals for the Federal Circuit ruled that Google’s copying of 11,500 lines of code from the Java programming language was not fair use. Plaintiff Oracle America, the owner of Java, originally was seeking $8.8 billion dollars in damages, though they are now expected to ask for more than that. This case stems from what seems to be a familiar Google tactic: take what you want, duke it out in Court later. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes through the extensive 56 page opinion and breaks down the incisive parts of this important ruling.


Are You Being “Server-ed”?

The “Server Test,” which originates with the 9th Circuit Court of Appeals, is a rule that liability for direct copyright infringement depended upon whether infringing images were stored on the defendant’s server or were simply imbedded or linked from a 3rd party server. However, three recent decisions cast doubt on this line of reasoning. They instead hold that it’s not where the copy is stored, it is where the damage occurs that matters, with one court explicitly ruling that the “Server Test” is wrong and has no support in the Copyright Act. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an extensive and in-depth look at the various legal theories presented, and how companies that rely on the “Server Test” may need to re-think their strategy.

server thinking