Many of you have heard about the dancing baby and have probably seen the video on YouTube.
Stephanie Lenz made a home video of her young children dancing to “Let’s Go Crazy”, a song written and recorded by the artist formally known as Prince. Lenz then posted the thirty-second video on YouTube. In response to a Digital Millennium Copyright Act take-down notice from Universal Music indicating that the video infringed the copyright in “Let’s Go Crazy”, YouTube removed the video. Lenz got the video re-posted by sending YouTube a counter notice. Then, with the help of the Electronic Frontier Foundation (EFF), she launched a lawsuit against Universal Music. Lenz and EFF argue that the video usage of “Let’s Go Crazy” is a fair use and that Universal Music’s issuance of the takedown notice was bad faith and constitutes misrepresentation under the DMCA.
Is It Really Fair Use?
As I’ve often said, fair use is a fickle beast. You can never be absolutely certain how a court will rule. While a court might ultimately determine that Lenz’s use of “Let’s Go Crazy” is a fair use, the video’s fair use status is not so crystal clear that calling it copyright infringement qualifies as bad faith. Universal could make a let’s-not-get-laughed-out-of-court argument that fair use doesn’t apply:
Lenz's use of the song is not criticism, commentary, news reporting, teaching, scholarship, research, or parody which are the favored uses for fair use listed in the Copyright Act. Of course, a use outside this list is not automatically deemed not to be a fair use.
- You can argue that Lenz’s use isn’t transformative. Prince and Universal use “Let’s Go Crazy” as a form of entertainment. That’s also how the song is used in the baby video. Lenz’s fair use argument is helped by the facts that the sound quality combined with Lenz’s voice and the kids’ antics make the song difficult to hear.
Lenz’s use is distinct from a situation in which a documentary happens to pick-up music and television programming in the background as the camera follows the documentary subject going through his daily routine. I would argue that many such documentary incidental uses qualify for fair use treatment. Here, Lenz’s use was not incidental or even in the background.
I would be more sympathetic to Lenz’s fair use argument if she had placed the video online in a manner in which it was accessible only to the family and friends with whom she wanted to share it rather than placing it on YouTube where over half a million people have viewed it.
The Case Continues
Lenz won the most recent round in this fight. A California federal court denied Universal’s motion to dismiss the lawsuit and is going to let the lawsuit continue so Lenz can make the argument that Universal’s take-down notice was an act of bad faith. But not even the court believes that Lenz will ultimately win:
Although the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required . . . following discovery her claims well may be appropriate for summary judgment . . .
There are certainly cases of content owners abusing the DMCA’s take-down provisions. Those abuses need to be addressed and I applaud the EFF for taking on that challenge. This just isn’t the case I would choose to wage that battle.