Last week, the New York Times reported that the internationally famous book “Diary of a Young Girl” by Anne Frank had suddenly gained a new co-author, her father, Otto Frank. The reason for this has to do with the copyright afforded Anne Frank. She died in 1945, which means that “Diary of a Young Girl,” having exhausted its “life of the author plus 70 years” copyright term, will enter the public domain in most of the world on January 1, 2016. Yet, the Anne Frank Fonds, the Swiss foundation that holds the copyright in “Diary of a Young Girl,” contends that Anne’s father, Otto, is a co-author of the work, so this seminal work will not pass into the public domain until 2050, 70 years after the death of Otto. Are they right? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the contentions of the Foundation and asks “can you really be a co-author with someone who is dead?”
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The internet continues to swirl with the rumors that the Sonny Bono Copyright Term Extension Act (SBCTEA) passed in 1998 was the product of the Walt Disney Company descending upon Congress and lavishing such huge amounts of money on Congress that it overcame their good sense. In some corners of the internet, this story is repeated as the absolute truth. But is it? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., digs into the legislative history of the SBCTEA and the amounts of money Disney paid out, and finds out that what is shocking is not really all that shocking.
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.
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.
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.
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.
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.
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.
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.
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 “©”?