Prince and Universal wrong to take down that ‘dancing baby’

October 2015

Music publishing, internet



In an important decision, and one which will undoubtedly have an impact on how content owners deal with what they consider is infringing content on the likes of YouTube, the Universal Music Group have been told by the U.S. appellate court that they should have considered whether a woman’s 29-second video of her two kids dancing to Prince’s “Let’s Go Crazy” was a fair use before issuing a takedown notice to YouTube.
Cast your minds back to 2007 and you might remember that Prince persuaded Universal, his publisher, to take down a slightly blurry user generated video on YouTube of a toddler dancing to a snippet from “Let’s Go Crazy”. The mum who uploaded the video, Stephanie Lenz, was not amused. Prince had publicly said in a September 2007 statement that he intended to “reclaim his art on the internet” and Lenz was put on notice that her use of Prince’s music violated the U.S. Digital Millennium Copyright Act, and that if she violated it again, she could lose her YouTube account and any videos she’d uploaded to it. Lenz sent a counter notification, and YouTube eventually reinstated the video that year.
Lenz then  sued Universal Music, arguing that entertainment company misrepresented the basis for its takedown request, saying the Universal had clearly not considered fair use, suggesting that her “use of the Prince song ‘Let’s Go Crazy’ is a self-evident non-infringing fair use” and “(T)he Holden (Lenz’s son) Dance Video non-commercially transforms the song into partially obscured background music for a family video about a toddler just learning to dance, uses only a small, non substantial portion of the original work, and does not substitute for the work or harm any market for the work”.
In 2012 in the San Jose Federal Court, U.S. District Judge Jeremy Fogel refused to dismiss the case – or hand Lenz a victory – without a trial and that Lenz might persuade a jury in her claims that Universal showed wilful blindness to the possibility of fair use, and that fair use was self-evident. The Judge also considered Universal’s position, saying that equally they could explain their position to a jury and explain that there was no bad faith and Universal “lacked the subjective intent to misrepresent the reasons it asked YouTube to take down the video.”
The case then reached a three-judge panel of the 9th Circuit Court of Appeals: In July we reported that U.S. Circuit Judge Milan Smith said the concept of fair use is an integral part of the language of the DMCA, roundly criticising the music company saying: “I struggle with how anyone looking at this from Universal’s perspective would doubt that little children playing and dancing around to music by the artist formerly known as Prince could view it as anything other than a fair use.” U.S. Circuit Judge Richard Tallman looked at the arguments put forward by Lenz’s lawyer (Corynne McSherry, of the Electronic Frontier Foundation) who had suggested that under the DMCA, Universal needed to come to a legal conclusion about fair use before it issued a takedown notice. Judge Tallman said the court was struggling with whether the video was fair use – although McSherry’s point was that whether or not the use was fair use – Universal hadn’t even considered this before issuing a takedown notice.
The appellate court has now concluded that “the statute [DMCA] requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.” The court held that “fair use is not just excused by law, it is wholly authorized by the law.” They called Universal Music’s argument “incorrect” — that fair use was not authorized by the law because it is an affirmative defense that excuses otherwise infringing conduct.
At the heart of the argument was Section 512(c)(3)(A)(v) of the DMCA which states that, as part of the written notice, a statement must be made by the copyright owner that it

“has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. ” The dispute between the parties was whether fair use is an “authorization” under the law as envisaged by the DMCA.  The Court of Appeals agreed with the district court that the “statute unambiguously contemplates fair use as a use authorized by the law”. Annsley Merelle Ward has written an excellent piece on the IPKat on this case.
The judges wrote that Lenz may recover nominal damages “due to an unquantifiable harm” from the Universal Music takedown, although those damages cannot be collected on claims of impairment of free speech rights. The total of the damages, including the recovery of expenses and attorneys’ fees, would be determined at a trial.
Corynne McSherry, the attorney at the Electronic Frontier Foundation who represented Lenz, told the WSJ Law Blog that the “ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”
Then toddler Holden is nearly 10 years old now.

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