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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.

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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.

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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.

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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.”

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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.

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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.

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Eyes Wide Shut: TVEyes Video Clip Service Not Fair Use

February 26, 2018 saw the commencement of “Fair Use Week.” Intentionally or unintentionally, but certainly ironically, the Second Circuit Court of Appeals used this week to release its long awaited opinion in Fox News Network, LLC v. TVEyes, Inc. This decision completely rejects the fair use defense of TV video indexer TVEyes. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., recounts the major points of this important fair use decision, and discusses how this may be the first step in restraining the over inclusive doctrine of “transformative use.”

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If You Let Them Paint It…They Will Come; If You Paint Over It…They Will Sue

On February 12, 2018, a District Judge took the unprecedented action of awarding $6.75 million dollars in statutory damages for what could only be described as a “mass mutilation” of 45 works of graffiti art. The case pitted numerous graffiti artists who were responsible for the creation of the graffiti mecca known as “5Pointz” against the owner of the building, Gerald Wolkoff. One would think that since graffiti art is at the very least a trespass against property, the owner of the building would be able to do whatever he wanted with his building. You’d be wrong. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes deep inside this important decision on the rights of visual artists.

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Cox Communication’s DMCA Policy Based on Money, Not the Law, Rules Court of Appeals

Cox Communications was on the receiving end of a $25 million copyright infringement judgement after a Federal District Court ruled they had not complied with the rules regarding “safe harbor.” On the inevitable appeal, Cox argued that they were under no obligation to terminate a customer's internet account even if they had actual knowledge of massive illegal downloads by a customer, because said customer had never been adjudicated in a court of law as an infringer. Nova Southeastern Copyright Officer, Stephen Carlisle J.D., analyzes this extreme position that would basically exempt all ISPs from any liability whatsoever, as well as the reaction of the Fourth Circuit Court of Appeals.

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Has This Court Decision Rendered the Creative Commons License Unenforceable?

January 8, 2018 saw the publication of the latest in a series of highly questionable decisions on the question of “transformative use.” The case, Philpot v. Media Research Center, held that by merely changing the context in which a photographic image is displayed, this constitutes a “transformative use” leading to a conclusion of fair use. In doing so, the Court has effectively rendered the Creative Commons license ineffective and unenforceable. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the bad and the worse of this truly head-scratching decision.

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