#DancingBaby Lawsuit Could Change Takedown Notice Procedures

A smiling toddler bopping around in the kitchen while mom listens to music is nothing new. Neither is mom wanting to share that moment with friends and family and posting a video of her cute kid to YouTube.

But an eight-year-old video, with Prince’s “Let’s Go Crazy” in the background, might be a precedent-setting lawsuit in the Internet age, when it’s common practice to upload videos of everyday life.

On Sept. 14, the US Court of Appeals for the Ninth Circuit, in San Francisco, issued a ruling in an ongoing lawsuit filed against Universal Music Group by Stephanie Lenz, the mom who took a short video of her kids and received a takedown order from the record company. At the time, Universal, which owns the copyright to Prince’s song, claimed she violated their legal rights by using the song without express permission.

All this over a 29-second video in which at least two children are running around in their home while mom holds a recording device and the Prince song is playing in the background. The song isn’t the focal point of the video, nor was it dubbed in on purpose after the footage was filmed.

The court decided that prior to filing a takedown notice, which requires a website like YouTube to remove something from its page and gives the poster a chance to argue his or her case, the copyright holder has to consider whether the original poster can make a “fair use” argument.

The court’s decision “sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” says Corynne McSherry, legal director for the Electronic Frontier Foundation, which is providing legal representation for Lenz. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

Jonathan Lamy, a spokesperson for the Recording Industry Association of America, told the New York Times that his organization “respectfully disagree[s] with the court’s conclusion about the DMCA and the burden the court places upon copyright holders before sending takedown notices.”

The court’s ruling is noteworthy for several reasons, says Michael Keyes, a copyright, advertising and trademark attorney with Dorsey & Whitney in Seattle.

“The statute provides that you’ve got to have a good faith belief that the infringer is infringing” on the copyright owner’s rights. “The Ninth Circuit says you have to, as part of your analysis, consider whether a legit fair use argument can be made here.”

There are two legal documents to consider in a case like this: the Fair Use doctrine and the Digital Millennium Copyright Act (DMCA).

The DMCA was adopted by Congress in 1998, just as the Internet was becoming a force for sharing copyrighted material, in order to protect the rights of copyright holders. “Before the DMCA came around, it was difficult to deal with online infringements,” Keyes says. “Nobody knew exactly what are the rules here when someone posts content online—Is the ISP liable? Is the poster liable for infringement? The DMCA tried to provide some rule of the road in our increasingly networked world.” Like so many other things that happen online, the legal framework was lagging far behind both technological capability and user actions.

There’s also the fair use doctrine, a longstanding legal challenge against which a work must be considered to determine if it violates a copyright owner’s rights. But this doctrine is “very murky, and it is by design. It’s supposed to be assessed on a case-by-case basis,” Keyes says.

“Fair use” allows for the limited use of copyright-protected material without having to obtain express permission from the copyright holder, including commentary, criticism, parody, research, library archives and other uses. There is a four-factor balancing test that has to be considered, but fair use is something even lawyers who practice in that realm struggle with, Keyes admits.

He points to two court cases as examples: one involving 2 Live Crew’s use of the bass riff from Roy Orbison’s “Pretty Woman,” which went to the Supreme Court, and the other involving the Grateful Dead and an anthology which reprinted the legendary concert posters created for the Dead, but reduced the size of the posters to thumbnail images and provided context and commentary on the posters and the band’s history. In that case, the court ruled the posters had been sufficiently transformed so as to not violate the band’s copyright.

According to the court’s recent decision, which now sends the case back to a lower court and possibly a jury trial, Universal (or the copyright holder in another case) has to “have a good faith belief that what [the poster] did was not authorized. That requires them to at least consider whether it’s a fair use [of their copyright protected property] or not,” turning the legal proceedings into a bit of a chess match.

Ultimately, the Ninth Circuit’s decision does not require the copyright holder to be vindicated and the accused infringer to have violated the copyright owner’s legal protections, Keyes stresses. However, the court’s decision does create several new open-ended questions.

“I’ve considered fair use, and if I have to consider it, and the argument isn’t very good, will I potentially face liability if my analysis was way off the mark,” he ponders. “If you send notice without a good faith belief, the party whose post was taken down potentially has a claim for damages against you. I’m not sure what those damages could be here—the court said nominal damages. I can’t imagine what the damages would be here in having the post removed.”

Requiring the other side’s possible fair use argument is a “significant” development, Keyes says. But what that ultimately means for the case—or for people who post videos of themselves purposely singing someone else’s song, or parodying a song, or posting a video of a cute kid dancing while a popular song happens to be playing in the background—isn’t clear.

“In order for me to have a good faith belief it’s infringing [on my legal rights as a copyright holder], I have to reasonably believe they won’t be able to prevail on a fair use defense. I have to at least conjure up in my mind, in my own analysis, that we’d ultimately prevail for the following reasons… If you’re so far off the mark in your assessment, I’d imagine the court would say you couldn’t have had a good faith belief because you were so far off the mark. I think it’s an open question. It’s going to be interesting to see how this plays out.”

That said, he doesn’t think it will deter people who post music-featuring videos to YouTube. If anything, depending how the case shakes out, it might embolden people to post even more videos with songs in the background, provided they feel they’ve got a solid fair use argument to make in their own defense, something that “changes the calculus” a bit for copyright holders, Keyes says.

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