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.
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Surprise! Creative Works with Similar Plot Ideas Tend to Have Similar Plots
A recent decision of a Federal District Court once again demonstrates why copyright is not the huge drag on free speech that opponents contend that it is. The fact is that copyright will not operate to suppress a work where the similarities that exist between two works arise from the treatment of common ideas. Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., examines the claims made by competing movies involving free-lance journalists, and explains why all similarities do not necessary mean copyright infringement has occurred.
The Katy Perry “Dark Horse” Verdict: End of the World or Hands Caught in the Cookie Jar?
On July 30, 2019, a Federal Jury returned a verdict that Katy Perry, along with co-writers Jordan Houston (p/k/a Juicy J), Lukasz Gottwald (p/k/a Dr. Luke), Sarah Hudson, Max Martin and Henry Walter (p/k/a Cirkut)[i] were all guilty of copyright infringement. Then, on August 1, 2019, that same jury decided that these Defendants and Capitol Records owed the Plaintiffs millions of dollars in royalties. Coming on the heels of the verdict in the “Blurred Lines” case, many reacted with shock. The apparent problem is that the two songs are not substantially similar, but the parts that are similar are nearly identical. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the music present in both songs, and presents a rationale for why the jury ruled as it did.
When a Copyright Is Not a “Work for Hire,” Even When Everyone Agrees That It Is
A lot of people assume that when you pay an artist to create a work of art, that you, the person laying out the cash, is the owner of the copyright. This concept is known as “work made for hire” and has been around for a very long time. But within the law is a pitfall, one that reared its head in Court and cost the hiring party copyright it thought that it owned. Because simply calling something a “work for hire” (WFH) does not necessarily make it so. Even if everyone agrees that it is. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the case law surrounding what happens when the artist is not your employee, but an independent contractor, and what can go wrong in the process.
If it Looks Like a Duck, Quacks Like a Duck…
A recent case involving competing duck shaped pool floats highlights one of the basic tenets of copyright law that many non-lawyers find hard to understand: the idea-expression dichotomy. It stands for the proposition that the idea itself is not capable of copyright. What gets the copyright is HOW the idea is expressed, or “it’s not what you said but HOW you said it.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., goes through the facts of the case and how they demonstrate that copyright does not extend as far as some people think - or complain about.
Warhol v. Goldsmith: A Terrible Decision, Correctly Decided
Imagine you are a photographer. You find that one of your photographs has been plagiarized by a famous artist, indeed, one of the most famous artists of all time. When you contact them about this, they file suit against you in Federal Court seeking a ruling that they are free to plagiarize your work. Further imagine that the suit has been filed in one of the District Courts that most often side with the plagiarist. What do you? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., discusses the case where this actually happened, the recently decided case of Andy Warhol Foundation v. Goldsmith, and asks: is this the precedent we really want for the art world?
Should Music Created by Artificial Intelligence Be Protected by Copyright?
“I have songwriting credits…even though I don’t know how to write a song.” The speaker of this statement is not a musician and has no musical training. His involvement with “creating” the songs in question? Virtually none. He writes computer code. The program he helped create has “composed” over 600 songs, all created with a “push of a button.” Further, his program has a record deal with Warner Bros. Records. What are the implications of using Artificial Intelligence, AI for short, to compose music? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at AI technology, how it works and how it meshes with copyright law, and asks: ”if a human being is not behind the creation, does it qualify for copyright at all”?
Smile! Dentist’s “Before and After” Pictures May be Copyrightable After All!
On May 1, 2019, photographers got some more good news from a court decision involving the copyrightable nature of photographs. The decision came in the form of a reversal, this from the 11th Circuit Court of Appeals that broadly criticized the District Court’s conclusion that “before and after” pictures taken by a Florida dentist were “not copyrightable.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the reasons behind the Court’s action, and in particular, that in the copyright world “original” and “creative” are not necessarily the same thing.
“Fair Use is Not Designed to Protect Lazy Appropriators” Rules Court of Appeals
On April 26, 2019, the Fourth Circuit Court of Appeals handed down a complete reversal of one of the most egregiously wrong copyright decisions in recent memory. The case, Brammer v. Violent Hues, was met with howls of outrage from the photographic community when the opinion of the District Court was handed down. As the opinion of the Court of Appeals vividly demonstrates, they were quite right to feel that way. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., conducts a point by point analysis of the Court’s decision, and how this might become a turning point in fair use analysis.
Grande Communications Makes a “Grande” Mistake, Loses Its DMCA Safe Harbor
Texas based Grande Communications has now followed Cox Communications as the second major Internet Service Provider to lose it’s safe harbor from infringement liability under the Copyright Act. They are supposed to, under the terms of the Copyright Act, “adopt and reasonably implement . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders . . .who are repeat infringers.” Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the facts behind both cases and asks: They know they’re supposed to be doing this, so why don’t they do it?