Coming on the heels of a $25 million jury verdict against Cox Communications for copyright infringement brought by BMG, last December saw a jury award an astonishing $1 billion award against Cox in a suit brought by Sony. These large damage awards were all due to one thing: Cox's ultra-cynical and self serving treatment of their obligations under the DMCA. Cox, naturally, wants the Judge to throw out the verdict, or at least get a "do-over." Did they get it? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a deep dive into the Judge's 75-page opinion, particularly on the issue of statutory damages.
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If you found out that your residential tenant had used your vacation home to shoot 9 pornographic movies, your first thought would be to sue for breach of lease, not copyright infringement. Yet, that is exactly the case that is playing out in a Federal District Court in Massachusetts. For, unbeknownst to the production company, the artwork on the walls of the home were created by the owner of the house, and are highly visible in the resulting movies. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., details the facts and law surrounding this unusual case, and shows how once again, a simple permission request would have saved a lot of money.
“Why would we allow the official law enacted by a legislature…to be hidden behind a paywall?” asked Justice Neil Gorsuch at oral argument in the case of Georgia v. Public.Resource.Org. Yet contrary to the headlines surrounding this decision, the Supreme Court of the United States did not rule that States cannot hold a copyright in the law, because the State of Georgia never contended that they could. The SCOTUS also did not rule that one cannot have a copyright in annotations to statutes and legal decisions, because it previously ruled that one could. What it did rule was that the State of Georgia could not have a copyright in the “Official” annotated statutes in which the State of Georgia was clearly the “author,” under the “Government Edicts Doctrine.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the reasoning of both the majority and dissenting opinions and asks “what’s the practical effect?” You may not like the answer.
A recent decision out of the Eastern District of New York featured a significant pushback on the theory that some works do not offer enough “creativity” to qualify for copyright protection. Coming just days before the reversal of the Katy Perry Dark Horse verdict on a similar theory, the case illustrates how litigants have started to misuse and distort the concepts of “originality” and “creativity” in order to attack the bedrock principles of copyright law. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the important rulings in this decision, especially that creativity can be as simple as realizing you’re in the right place at the right time.
Most often, claims of copyright infringement go to the artistic expression contained in a story. Rare is the case that claims a copyright in a character itself. But this is what happened in the case of Daniels v. Walt Disney Company. Plaintiff created a group of colored anthropomorphic characters she named The Moodsters. Each Moodster represents a different emotion. Yet, what makes this case stand out is the Plaintiff in not claiming copyright infringement over the plot of the Moodsters, she is claiming copyright infringement over the characters themselves. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes through the Court's decision, which very clearly defines the test for a claim not frequently litigated.
On March 16, 2020, the trial judge in the Katy Perry Dark Horse case surprised a lot of people by outright reversing the jury’s finding of infringement and resulting award of damages. Many commentators felt the verdict was eroding the lines between what is slightly similar and what is substantially similar. But in reversing the jury’s verdict, the Judge says that none of that matters. The reason is that the Judge rules that the four bar ostinato of Joyful Noise does not contain protectable expression. So even if copied, it could not support a finding of infringement. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the Judge’s reasoning and asks: “if you are a music composer, are you really happy about this”?
On Match 23, 2020, the Supreme Court ruled that States cannot be held liable for committing copyright infringement due to the 11th Amendment. This confers "sovereign immunity" on the States from being sued in Federal Courts. This is despite a specific law passed by Congress that allowed copyright infringement suits to be brought against States. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the reason for this ruling, and asks “what prevents State governments from becoming real pirates”?
The long running battle between the Randy Wolfe Trust and Led Zeppelin over “Stairway to Heaven” concluded in the most unusual fashion, with the full panel of the 9th Circuit reversing its own previous panel’s ruling reversing the jury verdict. The two main takeaways from this latest decision is that the 9th Circuit has made it harder to win copyright infringement suits. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., discusses how the “sheet music limitation” rule and repeal of the “inverse ratio rule” will affect future copyright infringement litigation.
A musician and copyright attorney recently claimed to have used a computer program to compose every possible melody and then injected them into the public domain. Along with a computer programmer, he instructed the computer to come up with every possible variation of eight notes within a single octave, a total of 69 billion melodies. Why do this? Supposedly to make it harder to bring copyright infringement lawsuits as now all melodies would have passed into the public domain. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., dives into the methodology of the program and the realities of popular music to answer the question: Does this really work?
On January 6, 2020, a District Court ruled against a video bootlegger’s frivolous fair use defense of “there’s nothing wrong with posting concert videos”. The Court not only ruled against the bootlegger on every point of the fair use defense, but found his infringement “willful,” which will allow Prince’s Estate to seek enhanced statutory damages at trial, and issued a permanent injunction. Under normal circumstances, one should be happy about such a resounding victory for the Estate of one of the 20th Century’s most important and influential musical artists. But how much did it cost? What happens when you’re an average musical artist in the age of streaming where the payout is measured in 100ths of a cent? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., looks at the facts of the case, and explains how flimsy and frivolous defenses can turn a simple case of copyright infringement into an expensive fight.