Don’t You Dare Ignore Fair Use — The Dancing Baby Case

Column Editor:  Bruce Strauch  (The Citadel)

STEPHANIE LENZ V. UNIVERSAL MUSIC CORP; UNIVERSAL MUSIC PUBLISHING INC.; UNIVERSAL MUSIC PUBLISHING GROUP INC.  UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 2015 U.S. App. LEXIS 16308 (2015).

Stephanie Lenz uploaded onto YouTube a 29-second video of her two very young kids dancing to Prince’s Let’s Go Crazy.  And she gave it a name.  “Let’s Go Crazy.”  Original.

She asks the 13 month-old what he thinks of the music, and he responds by bobbing while holding a push toy.

Yes, right up there with cat videos.  What did we do before YouTube?

Universal was the publishing administrator in charge of guarding Prince’s copyright.  And trained lawyers sat monitoring YouTube daily.

With their legal skills and ear for music, they dismissed one line/half a line of a song or ones in raucous bars with music in the background.  Their guidelines did not include any consideration of fair use.

As Lenz asked her toddler his opinion of the music, they determined the Prince composition “was very much the focus of the video.”  And jumping all over this, they sent a take-down notice to YouTube.  This included a “good faith belief” statement as per 17 U.S.C. § 512(3)(A)(v) which notes a good faith belief that the use is not authorized by copyright owner, agent or law.

YouTube yanked the video and notified Lenz.  Uh-oh.

Our furious mother seems to have read up on the law and fired off a counter-notification to Universal under § 512(g)(2)(B).  Universal riposted that she had neglected to swear she wasn’t perjuring herself as per § 512(g)(3)(C).

Is that a pretty good guide to managing the legal end of your YouTube cat videos?

Well, by gosh, Lenz corrected her counter-notice, and YouTube caved and restored it.  But not content with her victory, Lenz sued in 2007 with some procedural floundering around until, in 2008, she went forward with only one claim for misrepresentation under § 512(f).

And then we got a partial motion for summary judgment, an interlocutory appeal and blah blah, and we’re before the 9th Circuit.

The Appeal

Yes, it’s the “evidence viewed in a light most favorable to the non-moving party presents issues of material fact.”  Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

In 1998, the DMCA added some stuff among which is Title II — Online Copyright Infringement Liability Limitation Act — 17 U.S.C. § 512.

Under 512(c), service providers like YouTube and Google may escape copyright infringement liability if they “expeditiously” remove stuff upon receiving notice of infringement.  And there are elements as stated above.  And the service provider has to tell the user.

The restoration by counter-notification is automatic and must be done within ten days.  And then the copyright owner and cat video producer slug it out with YouTube stepping back out of the way.

And there’s punishment for abusing the DMCA.

Must Consider Fair Use

And now we get to the big point.  17 U.S.C. § 107 “empowers” and “formally approves” fair use.  “[A]nyone who … makes a fair use of the work is not an infringer of the copyright with respect to such use.”  Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Fair use is not merely an affirmative defense, but a right granted by the Copyright Act of 1976Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996).

So.  Did Universal misrepresent its good faith belief that the dancing baby was not subject to fair use?  A copyright holder is not liable for a simple blunder.  There must be “a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.”  Rossi v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000, 1004-05 (9th Cir. 2004).

Universal is only liable if it knowingly misrepresented its good faith belief in violation.  But it must consider fair use!!  Which they didn’t do.

Although the consideration doesn’t have to be “searching or intensive.”  That monitoring attorney can make a pretty snap decision while wading through the “crush of voluminous” mess on the Web.  Computer algorithms will do.  Human review is not required.

And what does our outraged mother win?  Well, she gets to go to a jury to seek nominal damages a mere eight years after she began.

 

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