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.

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.

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.

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.

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.”