“Dancing Baby” Case Represents Huge Win for Fair Use

The United States Court of Appeals for the Ninth Circuit requires copyright owners to consider fair use before sending online takedown notices
October 22, 2015

YouTube content providers breathed a collective sigh of relief after a landmark decision last month from the Ninth Circuit. The panel held that the Digital Millennium Copyright Act (DMCA) compels copyright holders to consider whether a particular use is fair before sending a takedown notification.[1] According to the Electronic Frontier Foundation (EFF), the Ninth Circuit ruling “sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”[2]

Lenz v. Universal, initiated in 2007, sought a judgment that Stephanie Lenz’s 29-second video of her baby dancing to Prince’s “Let’s Go Crazy” did not constitute copyright infringement. YouTube removed the video after receiving a copyright complaint from Universal Music Group. Lenz then filed a counter notice arguing the video did not infringe copyright and YouTube put the video back online.[3] The DMCA requires service providers like YouTube to honor this “notice-and-takedown” procedure to take advantage of its safe harbor provisions. These safe harbor provisions, set out in § 512, protect service providers from liability for the copyright infringement of its users.[4] The EFF, which represented Lenz in this lawsuit, aimed to ensure that copyright holders did not abuse the “notice-and-takedown” procedure through improperly targeting fair uses of copyrighted works.[5]

Fair use is an affirmative defense to copyright infringement. However, this ruling effectively puts some of the onus regarding fair use on the complaining copyright holder. The DMCA states that the complainant must include a statement of “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.”[6] In Lenz, the Ninth Circuit concluded that failure to consider fair use raises a triable issue of whether the copyright holder had that sufficient good faith belief that the use of the material was infringing.[7] Therefore, Lenz was able to seek relief under § 512(f), which states that any person that knowingly materially misrepresents that material is infringing shall be liable for any damages incurred by the alleged infringer.[8]

So what does this decision mean for content uploaders in practice? The added responsibility of considering fair use may deter some copyright holders from sending frivolous takedown notices. This decision may also mean that more content uploaders will file counter notices to combat copyright holders’ allegations of infringement. Regardless, the EFF and other digital rights organizations consider this decision a boon for fair use. In sum, the EFF believes the Ninth Circuit took a large step to ensure that “information remains uncensored.”[9]

[1] Lenz v. Universal Music Corp., No. 13-16106, at 15 (9th Cir. 2015).

[2] Important Win for Fair Use in ‘Dancing Baby’ Lawsuit, Electronic Frontier Foundation (Sept. 14, 2015), https://www.eff.org/press/releases/important-win-fair-use-dancing-baby-lawsuit .

[3] See Lenz v. Universal, Electronic Frontier Foundation, https://www.eff.org/cases/lenz-v-universal (last visited Oct. 21, 2015).

[4] See A Guide to YouTube Removals, Electronic Frontier Foundation, https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals (last visited Oct. 21, 2015).

[5] See supra note 2.

[6] 17 U.S.C. § 512(c)(3)(A)(v).

[7] See Lenz, No. 13-16106 at 5.

[8] See 17 U.S.C. § 512(f).

[9] See supra note 2.

Nathan Ranns is a 2L interested in all things intellectual property and entertainment law. He is particularly passionate about the music industry, with prior experience at an indie label and the RIAA. He hopes to one day fulfill his dream of filing T. Swift's trademark registrations (and also being her BFF).