On October 11, 2018, the Music Modernization Act was signed into law. This 66 page law rewrites the Copyright Act’s provision regarding compulsory mechanical licensing, grants full Federal copyright protection for pre-1972 sound recordings and provides for that magical “music rights database” that all the streaming services have been clamoring for. How does it work? Will it work? What’s good about it? What’s not so good about it? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a deep dive into the legislation and shows how this law’s many moving parts affect the rights of songwriters and record companies.
You can get my latest article in your email
On September 28, 2018, the District Court for the District of Connecticut issued a significant ruling on the rights of authors to terminate grants of copyright. It ruled that Victor Miller, the original and sole writer of the highly successful horror movie, Friday the 13th, had validly terminated his grant of rights in the screenplay, thus recapturing the copyright in the screenplay to his sole ownership. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the complex issues resolved by the Court and examines the question: is Jason about to live again?
On September 28, 2018, the Ninth Circuit Court of Appeals reversed the jury verdict in favor of Led Zeppelin on the controversy of whether the iconic song “Stairway to Heaven” was copied from the song “Taurus” by the band Spirit, and composed by Randy Wolfe. According to the Court, the District Court made a significant error in its jury instructions that “could have led the jury to believe that even if a series of three notes or a descending chromatic scale were used in combination with other elements in an original manner, it would not warrant copyright protection.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the ruling and it’s probable impact on future cases, which probably will only serve to make “blurred lines” blurrier.
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.
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.
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.
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.
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.
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.
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.