Court isn’t crazy about Prince challenge to dancing baby

The 9^th U.S. Circuit Court of Appeals in California isn’t crazy over Universal Music’s attempts to take down a YouTube video featuring a toddler dancing to the song “Let’s Go Crazy” by Prince.

In a September ruling, it agreed with a district judge who had held copyright owners must consider fair use before issuing takedown notices under the Digital Millennium Copyright Act (DMCA).

Fair use is a provision of the copyright statute which allows for use of a copyrighted work under certain circumstances that have negligible impact on the market for the work. The statute lays out four factors for a determination of fair use: the purpose and character of the use; the nature of the work used; the account of the work used; and the effect on the work’s value.

On Feb. 7, 2007, Stephanie Lenz posted to YouTube a 29-second video of her children running and dancing in her kitchen as “Let’s Go Crazy” played in the background. Most of the video, which is available at https://youtu.be/N1KfJHFWlhQ, focuses on the younger child, leading it to be called the “dancing baby” video.

Universal Music, which was authorized by Prince to administer the rights to the song, discovered the video through its routine monitoring of YouTube for material infringing its copyrights, and sent a notice to YouTube under DMCA, seeking that the “dancing baby” video be removed.

Under DMCA, web sites such as YouTube that allow posts and contributions by users can avoid liability for infringement for user contributions if the site follows the DMCA process for copyright owners to request removal of infringing material. Under this process, the web site must “expeditiously” remove or disable access to the material and inform the poster, who can then challenge the removal. Upon receipt of such a challenge by the poster – known as a counter-notice – the website must restore the material unless the copyright holder files suit against the poster.

Universal’s takedown notice for the dancing baby video was one of 200 the company sent to YouTube for alleged infringements. YouTube removed the video on June 5, 2007, and informed Lenz of the removal. After Lenz objected, Universal reiterated its position that the video infringed on the song’s copyright. Lenz sent a second objection on June 27, which led YouTube to restore the video.

She also filed suit against Universal, claiming that its takedown notice to YouTube was improper because it did not account for fair use.

The district court denied Universal’s motion to dismiss the case in 2008. After discovery, both parties moved for summary judgment in the case, arguing that no trial was necessary in order to resolve the case. But the federal district court denied both motions, which would allow the case to proceed to trial. Both parties then appealed to the 9^th Circuit.

The appeals court’s decision in September agreed that the case couldn’t be decided on summary judgment without a trial.  It also held that copyright rights holders must consider fair use before issuing DMCA takedown notices.

The court’s decision, written by Circuit Judge Richard C. Tallman for himself and Circuit Judge Mary H. Murguia, dwelled on a provision of the law which requires a DMCA takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court said that language included a requirement that the use of the copyrighted work be evaluated as fair use before the takedown notice is sent.  In other words, the copyright holder has to determine before the notice whether fair use is a use “authorized by … the law.”

The appeals court held that it was, affirming the district court and allowing the suit to proceed to trial. The court also held that Lenz need not show actual financial damages to proceed with her lawsuit.

In addition, the appeals court held that jury must determine whether Universal’s procedures before issuing the DMCA takedown notice were adequate to form a good faith belief that Lenz’s video infringed on the “Let’s Go Crazy” copyright.

If a jury finds that Universal had a good faith belief that the video infringed the copyright, the appellate court held, the company would not be liable for any misrepresentation in the takedown notice. The court added that “a copyright holder’s consideration of fair use need not be searching or intensive” in order to avoid this liability, noting that it may be possible to use computer algorithms, combined with human review, to conduct this evaluation.

Circuit Judge Milan D. Smith, Jr. dissented in part, disagreeing with the majority’s holding that the statute’s prohibition against misrepresentation in DMCA takedown notices required a prior fair use analysis by the copyright owner. But he otherwise concurred with the majority, and in the result.

After the decision of the three-judge panel of the 9^th Circuit, the Electronic Frontier Foundation, which represents Lenz in the case, sought en banc reargument of the case before a larger panel of the Court of Appeals.  EEF argued that the appellate court should have granted summary judgment to Lenz – in other words, given Lenz the victory without a trial. Universal responded that the appeals court should not have heard the appeal in the first place.

If the 9^th Circuit declines to rehear the case and its prior opinion holds, the case would go to trial before a jury. If a jury finds that Universal had a good faith belief that the video infringed the copyright, the company would not be liable for any misrepresentation in the takedown notice.

So the case of the dancing baby video may continue to trial, unless a settlement is reached. Copyright owners are put on notice that they must consider fair use before issuing takedown notices for alleged infringement online. Posters to the web are given more protection from removal of their posted material if it is protected by fair use. As babies can “go crazy” to a song in the background, and have the video posted online.

The ruling, Lenz v. Universal Music Corp., is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf.

Author’s note: Eric P. Robinson is co-director of the Press Law and Democracy Project at Louisiana State University and of counsel to the First Amendment law firm The Counts Law Group.