Let’s (not) Go Crazy

I love to hear legal decisions involving copyright law making their way into the mainstream news.  And, Lenz v.Universal (otherwise known as the dancing baby case) is one such case.  But, based on some recent radio interviews, I think the effect of the decision is being overblown.  This case is not a win for every person who wants to include a song protected by copyright in a video and then post it to YouTube.  This case does not decide how much, where and for what purposes you can use copyrighted content in your own personal productions.  Rather, the case makes it clear that copyright owners, i.e. Universal, Sony, etc., must consider whether a use by a third party of material protected by copyright is a fair use before sending a take-down notice to an internet service provider, i.e. YouTube, Facebook, etc.

In the Lenz case, Stephanie Lenz posted a video of her baby dancing to Prince’s Let’s Go Crazy.  An employee tasked with sending take-down notices at Universal (at the time, the current administrator responsible for enforcing Prince’s copyright) found this use and determined that a take-down notice should be sent.  And, so the process in Section 512 of the US Copyright Act was underway.  Responding to the take-down notice from Universal, YouTube removed the video and notified Ms. Lenz.  Ms. Lenz objected with a counter-notification to YouTube that Universal pointed out to YouTube was defective because it was not signed under penalty of perjury.  So, YouTube continued to keep the video off its site. Ms. Lenz then obtained pro bono counsel and sent a second counter-notification and YouTube put the video back-up.  Then, Ms. Lenz filed the current action which, after amendment, raised a claim of misrepresentation by Universal under Section 512(f).

What did Universal misrepresent?  Under Section 512(c), a take-down notice requires 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 determined that Universal did not have the sufficient good faith belief that Ms. Lenz’s use is “not authorized by … the law” because Universal did not consider whether Ms. Lenz’s use was a fair use.  The court makes it clear that a “fair use” is a use provided for in the Copyright Act and specifically identified as NOT an infringement of copyright.  Therefore, to have a use that is “not authorized by … the law,” such use cannot be a fair use because fair use is authorized by the law.

So, what’s a fair use?  The Copyright Act provides a definition:  …the fair use of a copyrighted work, …. for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research is not an infringement of copyright.  In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyright work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Fair use is not the most clearest of standards and requires weighing and consideration of all the above factors.  But now, the Lenz court has made it clear that copyright owners must have a subjective good faith belief to show that a use is not a fair use before sending a take-down notice.  The current case has to go back to the lower courts to determine if Universal made such a determination.    And, if Universal is found to have failed to consider whether Ms. Lenz’s use was fair use, it can be liable for “nominal” damages (the jury will need to decide what is included in nominal damages, e.g. pro bono attorney fees, filing costs, etc.).

What does this case mean?  Fair use of copyrighted material is a legal use (and, is not just an excuse to avoid copyright infringement liability). Therefore, copyright owners need to engage in a more thorough review of the use of their materials before sending take-down notices to Internet service providers.  In reality, this means that software programmers need to modify/improve the algorithms that scour the Internet everyday looking for infringing content.  Hopefully, this will mean fewer frivolous take-down notices and more dancing babies on YouTube.

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