In 2007, Stephanie Lenz posted a cute 29-second YouTube video of her 13-month-old son dancing and giggling to the music of Prince’s “Let’s Go Crazy”. Four seconds into the video Lenz asks her baby “what do you think of the music?” And the baby bobbles up and down holding his push toy. You have to smile:
Then, big bad Universal Music Publishing Company spoiled all the fun and sent a takedown notice to YouTube, asserting, “We have a good-faith belief that [Lenz’s video] is not authorized by the copyright owner, its agent, or the law” to play Prince’s music.  In other words, Lenz was an infringer. Lenz was outraged and filed a counter-notice, which Universal Music successfully resisted on technical grounds. Lentz obtained counsel and filed yet a second counter-notice, asserting that her video constituted “fair use.”  You may recall from our previous posts that “fair use” under the U.S. Copyright Act, permits limited use of copyrighted works for purposes of “criticism, comment, news reporting, teaching, scholarship, or research.”  In response to the second counter-notice, YouTube restored Lenz’s video. Her outrage undiminished, Lenz joined forces with the Electronic Frontier Foundation (EFF) and sued Universal Music alleging damages for misrepresentation under § 512 (f) of the US Copyright Act. The parties eventually filed cross motions for summary judgment on the misrepresentation claim, the court denied both motions, and the parties appealed to the United States Circuit Court of Appeals (Ninth Circuit). Now, eight years later, the baby no longer a baby, the Ninth Circuit rewarded Lenz by holding that Universal music – – or anybody sending a takedown notice – – is required to consider fair use in its assessment of whether the offending video is an infringement. The Ninth Circuit wrote: [A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”  In the words of the EFF:

The big takeaway of [the] opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute. While this may not sound like a big deal, the Ninth Circuit’s opinion has important implications for digital media and freedom of expression. Digital media providers such as YouTube receive thousands of takedown notices many of which leave us scratching our heads over whether the offending work was really infringing. See these five notable takedowns that fall in that category.

But don’t leave this post believing that Lentz walked away with a windfall or that Universal music and other copyright owners have been chastened by the Ninth Circuit’s decision despite the EFF’s praise of the opinion. Probably not. First, the court held that Lentz was only entitled to nominal damages. The Ninth Circuit left it to the lower court to determine whether her court costs and pro bono fees are recoverable. Second, copyright owners are now required to consider fair use but whether they do so will be judged on a subjective basis, meaning that “a jury must determine whether [the copyright owner’s] actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.” Subjective good or bad faith must be proven from from the point of view of the copyright owner whether or not those acts are objectively reasonable.  A difficult burden, indeed! Need help with a takedown notice? LWH lawyers can help and they will consider fair use.