The Dancing Baby Doctrine: 9th Circuit Rules That Fair Use Must Be Considered Before Sending DMCA Takedown Notice
In a closely-watched dispute stretching back to 2007, the Ninth Circuit Court of Appeals handed down an important copyright “fair use” decision in Lenz v. Universal.
It all began in 2007 when a woman known as Ms. Stephanie Lenz was inspired by her toddler dancing and swaying to music in the family kitchen. Moved by the “Kodak moment” of her young tike’s enthusiastic dance moves, Ms. Lenz captured them and uploaded her resulting work to YouTube. This cinematic episode would likely have been lost in the sands of the internet, but for one thing: the music the toddler danced to was Prince’s smash 1980’s hit “Let’s Go Crazy.” Ms. Lenz’s family and friends were no doubt delighted to witness the young toddler’s dancing prowess. The copyright holder, Universal Music Corp. (“Universal”), was not as moved. Universal sent a DMCA “takedown” notice to YouTube informing it that Ms. Lenz’s posted video incorporating “Let’s Go Crazy” was not authorized and that YouTube should remove the video.
Ms. Lenz fired back. She ultimately initiated an action against Universal alleging that it could not have had a “good faith belief” that Ms. Lenz’ video was infringing and, therefore, Universal improperly sent the takedown notice and is liable to Ms. Lenz for damages.
In a case of first impression for an appellate court, the Ninth Circuit faced the legal question of whether a copyright owner has to consider “fair use” before a takedown notice is sent to the ISP hosting the allegedly-infringing content. The Court answered that question with a rather emphatic, “yes.” Under the Court’s ruling, copyright owners must consider whether the posting party had a legitimate claim that the use of the copyrighted content was “fair.” And, a copyright owner’s failure to do so may give rise to a claim for damages (likely nominal) by the party who uploaded the copy.
The Court’s decision is significant for a number of reasons. First, “fair use” has historically been thought of as an “affirmative defense” that must be established by the putative infringer. The Supreme Court has referred to “fair use” as such, and has made it clear that it is the duty of the defendant to plead and prove the defense. At least in the context of the DMCA, Lenz shifts the burden (at least to some extent) to the copyright owner and forces consideration of such a defense before the copyright owner take action. Second, it is unclear how much “fair use” analysis is required and whether a copyright owner needs to obtain legal counsel before exercising its rights under the DMCA. On the one hand, the Court made it a clear that the fair use analysis need not be “exhaustive” and that a court may ultimately disagree with the copyright holder’s fair use assessment. On the other hand, whether fair use applies in a given case is a fact-intensive inquiry that can often call for an intricate understanding of legal precedent. The very nature of fair use seems to require that legal counsel be consulted before any action would take place. Third, what if a copyright holder consults with counsel, who then renders a legal opinion that the unauthorized use was not fair use. If the copyright holder is ultimately challenged for not having a “good faith belief,” will the copyright holder be faced with the need to disclose the discussions with counsel in order to prove a subjective “good faith belief” that the unauthorized use was infringing?
Many questions remain unanswered. For now, though, Ms. Lenz is going to dance on back to trial court. The Ninth Circuit also found that there were material issues of fact as to whether Universal had a good faith belief that Ms. Lenz video was infringing. We will keep you apprised when and if we see Dancing Baby, Part II.
