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Appellate Court Rules Copyright Book Deposit Requirement Unconstitutional…Sort Of

The Court of Appeals for the District of Columbia released a rather surprising decision regarding the Copyright Acts’ requirement that books published in the U.S. provide the Library of Congress with two copies of the work. Surprising in the fact that the deposit requirement has a long history in the Copyright Act and the requirement had not been challenged despite being on the books for some 40 years. The decision also caused some confusion in that the deposit requirement appears in two difference sections of the Copyright Act. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the vital differences in the two sections, and why the Court’s decision may only have minimal effect.


Court Sends Fan Fiction Writer’s Suit Against Tolkien Estate to Mount Doom

One of the dangers of “fan fiction” is that the author of the work may suddenly decide that a subsequent work by the original author plagiarizes their work. That’s exactly what happened in a recent copyright case in California. The writer of an unauthorized sequel to “The Lord of Rings” sued the Estate of J.R.R. Tolkien and Amazon asserting that the streaming series “The Rings of Power” infringed upon his work. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at what is becoming a more frequent legal action, and what the law has to say about the rights of unauthorized “fan fiction.”


State Attempts to Sink Blackbeard Infringement Case by “Deep Sixing” the Law They Passed to Claim the Copyrights

“This lawsuit is about Piracy, Greed and Revenge.” So opens Rick Allen’s amended complaint against the State of North Carolina for effectively injecting his copyrighted video footage into the public domain. Yet, now, North Carolina attempts to end the case by repealing “Blackbeard’s Law,” the statute at the heart of the controversy. NSU's Copyright Officer, Stephen Carlisle, J.D., examines the long and complex history of this highly unusual case, and the legal theories behind when copyright infringement becomes an “unlawful taking” prohibited by the U.S. Constitution.


Supreme Court Saves the Derivative Works Right from “Transformative” Extinction; And Why AI Should Be Worried

The Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith was a great first step in reigning in the vast over importance that Courts have been ascribing to “transformation” in fair use cases. While the majority of commentators have focused on the “common commercial purpose” aspect of the decision, the equally important holding is the Court’s recognition and affirmation of the importance of the author’s right to prepare derivative works. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a deep dive into the Court’s opinion (including the dissent) and explains how the concept of “transformative use” almost made extinct one of the author’s most valuable exclusive rights under the Copyright Act.

Prince First Two Rows

The Ed Sheeran Verdict: Right for the Wrong Reason?

On May 4, 2023, a jury unanimously decided that Ed Sheeran’s song “Thinking Out Loud” did not infringe Marvin Gaye’s classic “Let’s Get It On.” This is undoubtedly correct as the songs are not substantially similar. But the jury never got there. Instead, it ruled that Sheeran and co-writer Amy Wadge had “independently created” “Thinking Out Loud.” But independent creation is a defense that normally arises when the Defendant claims to have never heard the song, which is not the case here. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes apart the basic elements of both songs to explain why the jury decision is correct, albeit probably for the wrong reason.


Calling Yourself A “Library” Does Not Make You A Library, Calling Copyright Infringement “Controlled Digital Lending” Does Not Make It Legal

March 24, 2023, saw the release of the District Court ruling in Hatchette Book Group v. Internet Archive, the long running battle between several book publishers and the Internet Archive over the practice of “Controlled Digital Lending.” The concept of CDL was made up out of thin air. It appears nowhere in the Copyright Act. It was dreamed up to give the Internet Archive the patina of legitimacy as a self-stylized “library.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the Court's rather decisive ruling that CDL is not legal and never has been. As the Court ruled “[N]o case or legal principle supports that notion. Every authority points in the other direction.”


Copyright Office Clarifies Policies Regarding Copyright for AI Assisted Works (Sort Of)

Consider these headlines: “U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted” and “U.S. Copyright Office says some AI-assisted works may be copyrighted.” Who’s right? Unfortunately, both of them. On March 16, 2023, the U.S. Copyright Office issued new rules regarding the registration of works assisted in whole or in part by artificial intelligence. The new rules, however, foundered on one basic flaw: a work created by AI is not eligible for copyright protection, but a work that is created in part by AI is protectable. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., cuts through the confusion and suggests how the registration problem might be solved.


Artificial Intelligence Art Is Certainly Fair Use! Umm – Not So Fast

Art created by artificial intelligence has been making lots of headlines lately. Among the headlines are three lawsuits filed against Stability AI by artists and companies upset that their work has been ingested and used to train the program, all without permission or compensation, including one class action. In responding to that suit, a Stability AI spokesman responded with the insult that “Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., stacks up the facts of the case against Stability AI with the existing case law, and finds that Stability AI is highly overstating its legal position.


The “Public Good” of the Public Domain: Now You Can Watch Winnie the Pooh Decapitate a Girl with an Axe

Every year on January 1st, various copyright skeptics assemble to sing the praises of works going into the public domain, and indeed call for celebrations! Because of this phenomenon you can now thrill to the sight of Winnie the Pooh in a swimming pool, decapitating a screaming young girl with an axe. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the so-called “benefit” of works passing into the public domain and asks: Does the new author actually “build” on the work they are copying from? Or do they merely use the famous work as an attention getting device and avoid, as the Supreme Court has said “ the drudgery of having to work up something fresh”?

Pooh Screen Shot Edit

You Can’t Compare Apples to Oranges – So AI Artist Compares Fruit to Copyrights

We are instructed from the earliest age that you can’t compare apples to oranges. Yet, in the never-ending quest to grant copyright to artwork created by artificial intelligence, we get just that argument– and more. A piece of fruit, or in the alternative, a calf birthed by a cow, is compared to an intangible intellectual property right, in this case, a copyright. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes on this novel argument as well as the contention, that despite not being a sentient being, a machine can transfer a copyright to the machine’s owner.

apple v copyright