Fair Use and Copyright Infringement: The 2015 Dancing Baby Case and You, Dear Reader

There’s been lots of discussion about a recent Fair Use case that has come down from the United States Court of Appeals for the Ninth Circuit, Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sept. 14, 2015).  Forbes, for example, lets its readers know that from this new court opinion, “[i]f a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages.”
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Here’s what you need to know, Dear Reader, regarding “fair use” and “copyright infringement” now that the Dancing Baby Case opinion has been published.

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The Dancing Baby YouTube Video: Mommy Files a Lawsuit

Maybe you’ve heard of the "Dancing Baby Case."  Long ago, on February 7, 2007, Stephanie Lenz  sat down at her computer.  She went to the YouTube website and uploaded a 29-second personal video she had made of her two little kids dancing in the kitchen to Prince’s song, “Let’s Go Crazy.”  She shared the video on YouTube with anyone that wanted to see it.  

She named the video of her babies dancing in the kitchen, “Let’s Go Crazy.” In the video, early on, she asks her toddler son “what do think of the music?” and he responds by bouncing up and down.  

Meanwhile, over at Universal, a man named Sean Johnson had the full-time job of monitoring videos that were uploaded to YouTube for copyright infringement of Universal’s artists.  Among Universal’s artists was Prince, and it was Universal’s job to enforce and protect Prince’s song copyrights.

Sean Johnson was Universal’s man on the scene; employed an assistant in their legal department who every day went to the YouTube website to search for uploads of Prince’s music.  If that search came back with search results for a Prince song, then he would watch the video on YouTube.  

He made the initial call on whether or not the video "embodied a Prince composition" by making “significant use of . . . the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the  video."  If he found something objectionable, he would share it with others at Universal.  Universal would then notify YouTube that the video should be taken down as a copyright violation if Universal believed the “composition was the focus.”

In the Universal review process, Stephanie Lenz’s home video of her kids dancing in the kitchen to a Prince song was considered to meet their criteria. YouTube was notified by Universal to take the Dancing Baby Video down.  YouTube did.

Result?  Mommy Stephanie Lenz filed suit under the Digital Millennium Copyright Act ("DMCA") section 17 U.S.C. § 512(f), arguing that Universal misrepresented in its takedown notification that her 29-second video was an infringing use of Prince’s work. 

What the Lenz case holds:

“Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. We affirm the denial of the parties' cross-motions for summary judgment.”

The Dancing Baby Case and You, Dear Reader

It’s an important case for you, Dear Reader, no matter which side of the copyright you’re on:   whether you are a writer, photographer, or designer trying to protect your copyright, or you are a blogger or ebook author who wants to use an excerpt or image that may be protected by copyright law.  

Here are some things for you to know:

Lenz Is Not the End of the Road on Fair Use

1.  This is a recent federal appeals court decision in a fight that lasted 7 years.  It’s a big deal.  

The only higher court than a federal appeals court is the United States Supreme Court.  Whether or not this case will be appealed to the High Court is one question (actually, a petition for writ would be filed).  

First, they may request a full  hearing of all the justices in the Ninth Circuit in what’s called a “motion for rehearing en banc.”  If the motion is filed and it’s granted, the whole case gets reconsidered by all the justices on the Ninth Circuit, not just the ones that were assigned to hear the case and who issued this opinion.  

Even if the losing party in this case wants SCOTUS to review the Ninth Circuit decision, and can do so after the rehearing motion, odds are not in their favor.  First, SCOTUS only agrees to hear a handful of cases that request review.  Second, a review is no guarantee that things would go their way; they could lose again.  

My point:  this opinion isn't quite jelled yet, it could change.  Lawyers know that the odds aren't high that a rehearing is going to change things (if it were granted), so many read the current opinion as speaking for the Ninth Circuit.  And the odds are even more remote that SCOTUS is going to change things, and even if it did, this opinion will be good law in the Ninth Circuit until it does.  

So, Lenz is probably going to become finalized law ... unless it's not after additional review.  There is a remote chance that this fight isn't over.  

2.  This is a decision out of the Ninth Circuit.  There are several regions, or circuits, in the United States.  Texas, for instance, sits in the Fifth Circuit.  

Each federal court of appeals in each federal circuit has the independent authority of reviewing cases that come before it within its jurisdiction.  These independent reviews may or may not agree, or jive.  In fact, controversies and opposite rulings in different federal circuits are often the reason that SCOTUS does grant writ and take review: to make the final call when two or more circuits don’t agree on the answer to a legal question or issue.

My point:  Lenz may or may not be final law for the Ninth Circuit (yet).  Once it’s final, it may be considered as a respected federal court decision by everyone in this country.  But it’s not the end of the road on this issue.  If a similar case were to be heard before the Fifth Circuit, for instance, would that court answer in the same way?  We don’t know.   It’s possible for a similar case to be heard in another circuit (YOUR circuit) and that circuit rule opposite from the Ninth Circuit in Lenz.  

Lenz Doesn’t Answer Every Question on Fair Use

3.  Another point.  Lenz is not a case with clear cut answers for everyone.  Within Lenz, issues are left unclear and not every question is answered.  Lots of lawyers are chatting with each other about what all Lenz will mean in future copyright infringement cases.  For instance:

• Is “fair use” a particular type of affirmative defense or is it not an affirmative defense at all?
• What exactly does this mean for those companies that sent out those robotic, automated takedown requests in bulk? 
• If someone wants to send a takedown notice, then they have to consider fair use — but Lenz explains the “…copyright holder’s consideration of fair use need not be searching or intensive.”  So, how does a copyright holder establish in evidence that they considered fair use before they send their notice?  Is simply saying “I considered the fair use doctrine in this situation and determined it didn’t apply” going to be enough? 

4.  What we do know from Lenz (this isn’t an exhaustive list):

• If you are going to send someone a takedown request under Section 512(c), then you have to consider Fair Use;
• Deciding if something is a knowing misrepresentation is done by a subjective (not objective) standard;
• No damages are available for “impairment of … speech rights” but nominal damages are available to plaintiffs suing under Section 512.

The Dancing Baby Case and You

What does this mean to you, Dear Reader?  

Well, we have a federal appeals court decision on the books now that helps people who want to argue they have a fair use right to use someone else’s work without it being copyright infringement.  It should make humans check the work of their robots before they automatically demand a takedown. 

Given the current state of web publication (including social media), there’s a lot of grabbing of content and images (ESPECIALLY IMAGES) and this case helps those people.  The people using the stuff.  Arguably.  

But Lenz is muddy water.  So, while the Dancing Baby Case is getting lots of attention (and kudos to the Electronic Frontier Foundation (EFF) for all their hard work here), this case isn’t something that provides an easy guide to the people out there who own copyrights or those who want to use stuff they find on the web that is copyrighted.  

The reality remains that there’s a lot of copyright infringement going on right now, and at the same time, there’s a lot of bullying of nice and decent people who have a fair use right to use an image or other work.  There are good guys and bad guys on both sides of the issue:  using stuff fairly and infringing on copyrights wrongfully.  

And Universal was challenged for not considering "fair use" before sending YouTube that takedown notice.  But if Universal had stated, "we considered fair use and found it lacking here," then would they have met Lenz's standard?  

Will Lenz really work to block bullies from blocking fair use through manipulation of DCMA takedown notices?  

Bottom line:  You need to ask a lawyer if you have a question in your particular circumstance.  Copyright infringement and fair use remain complicated legal issues, and Lenz does NOT make things clear.   

For more, read:

Big, Confusing Mess Of A Fair Use Decision Over DMCA Takedowns at Techdirt.