In the past month, three more decisions have been handed down on the question of whether a particular use was “transformative” in the context of a fair use defense. These decisions once again highlight that the case law surrounding “transformative use” is a complete mess, and needs to be cleaned up by the Supreme Court absolutely as soon as possible. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the cases and the “transformative” doctrine and highlights the problems which lead to disagreements within the same Court of Appeals.
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No Need to Bend Over Backwards: Court Rules Yoga Poses Are Not Copyrightable
Bikram Choudhury is the developer of the very popular “hot yoga” system, where a carefully selected series of 26 yoga positions is performed for 90 minutes in a room heated to 105 degrees. The success of the system has made him very wealthy, and litigious. He has threatened and sued yoga studios claiming his carefully arranged system is protectable by copyright law as either a compilation or choreography. Now one rival studio has taken Bikram “to the mat” saying his sequence of poses is not protected by copyright at all. Who’s right? Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., details the major points of the court’s ruling and finds you don’t need to bend over backwards to teach the yoga poses you have in mind.
Monkey in the Middle Redux: Animal Rights Group Sues to Claim Copyright On Behalf of Monkey
The “monkey selfie” was back in the news last week. The photographer says he owns the copyright. Wikimedia says no one owns the copyright, it’s in the public domain. Now, in a lawsuit brought by the animals rights group People for the Ethical Treatment of Animals, it says that Naruto, the crested black macaque in the photo owns the copyright, and is suing the photographer and his publisher for copyright infringement. Can you really sue on behalf of a monkey? Can a monkey really own a copyright? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the lawsuit and the copyright laws and tries to make sense of all this monkey business.
Holy Blind Justice, Batman! The Batmobile Is a Character!
The old adage that “justice is blind” came to mind again last week, but not in a good way. In the latest head-scratching decision from the 9th Circuit Court, a Court of Appeals for the first time has ruled that an inanimate object portrayed in an audio-visual work was in fact a “character” capable of copyright protection. The case, DC Comics v. Towle, pitted the venerable comic book company against a manufacturer of full scale, real-life, working “Batmobiles.” Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., explores the problems inherent in this decision and shows how the Court could have achieved the same result, in fewer steps, using existing case law.
Happy Birthday Is In The Public Domain? Well, How Do I Get My Money Back?
On September 22, 2015, a Federal Judge granted partial summary judgement in favor of the Plaintiffs who were seeking a declaration that the song Happy Birthday was in the public domain. News agencies rushed out to trumpet the news that the Judge’s ruling meant Happy Birthday was in the public domain. Except that the Judge did not rule that Happy Birthday was in the public domain. What he in fact ruled could be far more damaging to the interests of Warner Chappell Music. What’s the future of Happy Birthday? Nova Southern University's Copyright Officer, Stephen Carlisle, J.D., traces the long tortured history of the world’s most popular song and finds that Happy Birthday’s publisher may want to start singing the blues.
Let’s Not Go Crazy Here: The Dancing Baby and Fair Use
On September 14, 2015, the Ninth Circuit Court of Appeals issued its opinion in the closely watched case of Lenz v. Universal Music Group, but more widely known as “the dancing baby case.” For the first time, a Court ruled that those persons serving takedown notices must consider whether the use is fair use or not. What are the new duties of copyright holders seeking to serve notices under Section 512? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the points of the decision and shows that “let’s NOT go crazy here” seems to be the operative plan.
The “Eyes” Don’t Quite Have It: Judge Rules Against TV Indexer’s Fair Use Defenses
In a significant ruling on the boundaries of fair use, on August 25, 2015, a Federal District Court Judge ruled against media indexer TVEyes on three affirmative defenses that were raised in a suit brought by Fox News Network. In effectively a split decision, the Judge ruled that some of TVEyes practices were fair use, but that others were not. The Electronic Frontier Foundation immediately blasted the ruling as “concerning,” then “alarming” and for good measure “dangerous.” Who’s right? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at both sides of the arguments, and reveals why you can’t overlook the basics and jump right to the conclusion.
Gimme a “©”! A Court’s Conclusion on Cheerleader Clothing Copyright
The Sixth Circuit Court of Appeals recently weighed in on a topic that has bedeviled courts for years: what parts of an article of clothing are copyrightable? Fashion designs are generally not eligible for copyright protection because they are “useful articles.” Even when the designer adds more decorative elements, this is usually not enough to move a dress into a work of art. This is why you see a dress in Sak’s Fifth Avenue one week and a few weeks later you see the same dress in Target. But fabric designs can be copyrighted. Can you separate one from the other? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at this and previous decisions to determine: can you give this cheerleader uniform a “©”?
Should We All Sing “Happy Birthday” to Zorro and Buck Rogers? Three Lessons on the Public Domain
Following on heels of the successful lawsuit declaring Sherlock Holmes to be in the public domain, a lawsuit was filed last week seeking to do the same to Buck Rogers. This suit goes along with similar lawsuits involving the song “Happy Birthday” and the famous literary character “Zorro.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the litigation, the law, and the facts to see whether the rights holders have reason to cheer, or whether it’s time to say “bye, bye, bye” to these three iconic works.
Stop Me If You’ve Heard This One… Joke Stealing and Copyright
Recent events cast a spotlight on the not-so-funny business of joke stealing. Actual lawsuits between comedians are so rare as to be unheard of. Yet, on July 22, 2015, an actual copyright infringement lawsuit over jokes was filed by Robert "Alex" Kaseberg, against Conan O’Brien and his production company. Kaseberg claims that on four different occasions after posting jokes on his personal blog and Twitter account, the nearly identical jokes were delivered by Conan O’Brien on his television show. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., looks into whether a joke can be copyrighted at all, and why comedians treat joke theft as no laughing matter.