By Lena Williams, Guild-CWA :: It all started with a 29-second video of a toddler in a red onesie bobbing to the electronic beat of Prince’s “Let’s Go Crazy.”
The toddler’s mom, Stephanie Lenz of Gallitizin, Penn., uploaded the home video to YouTube in June 2007. You can hear her giggling in the background as her 13-month-old son, holding a push toy, smiles at the camera while dancing to the music in the family’s kitchen.
She never dreamed that the benign video, viewed 1.8 million times, would lead to a major First Amendment copyright infringement case.
But that’s exactly what happened after Universal Music Group, which owns the rights to the song, demanded that YouTube take it down, citing violation of the Digital Millennium Copyright Act (DMCA).
YouTube buckled and took the video down, but Lenz fought back. She filed a fair use claim and sued Universal for misrepresentation of the copyright act.
For the past eight years, Lenz, the metaphorical David, has battled the mega-media giant, Universal, in a case that has far-reaching implications for online copyrights and the millions of web users worldwide who post videos of people dancing to popular music.
Last month, Lenz finally got vindication: The U.S. Court of Appeals in the Ninth Circuit in San Francisco found that copyright holders such as Universal must consider “fair use” before demanding that YouTube and other websites remove videos.
The three-judge panel said Universal misrepresented the DMCA in the takedown notification it sent to YouTube, alleging that the plaintiff’s “home video constituted an infringing use of a portion of a Prince composition.”
The Sept. 14 ruling stated that “The DMCA requires copyright holders to consider fair use before sending a takedown notification. 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.”
The panel’s decision clears the way for the case to go to trial. In the meantime, the ruling effectively puts a restraining order on recording artists and their labels, barring them from censoring the nonprofit use of their music by ordinary citizens.
The Electronic Frontier Foundation, an advocacy group that represented Lenz in her suit against Universal, called the judges’ decision “a victory for internet users.”
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech, Corynne McSherry, the foundation’s legal director said Sept. 14.
The ruling means that all those online videos of people dancing to Beyonce’s “Single Ladies,” Pharrell’s “Happy” and yes, Prince’s “Let’s Go Crazy” can be posted without fear of being sued.
You’d think the music industry would have better things to do than going after a suburban mom who simply wanted to share a joyful video of her son dancing.
But Universal claimed Prince’s song, not the toddler, “was very much the focus of the video” and that using it was no different than an advertiser using the artist’s song for commercial purposes without permission.
What video were they watching? In the video I saw, along with 1.8 million others, the mother’s camera is zeroed in on her baby boy for those 29 seconds. Indeed it took a moment for me to realize the song in the background was “Let’s Go Crazy,” and I’m a Prince fan.
Prince has long made clear his displeasure with the unauthorized use of his music online. In a September 2007 statement, he said he intended to “reclaim his art on the Internet.”
One month later, Universal said the company was working with Prince to remove all user-generated content involving him as a “matter of principle.” The Music Group went so far as to assign an employee to scour YouTube every day searching for videos that used Prince’s music.
After learning by email that YouTube had removed her video, Lenz tried to restore it by sending YouTube a counter notification. She argued that Universal was issuing takedown notices in bad faith and was attempting to remove all Prince-related content rather than considering whether each posting violated copyright and was a non-infringing fair use.
Universal protested, saying Lenz failed to acknowledge that her statement was made under penalty of perjury, and reiterated its claim that the video constituted infringement because there was no record that “either she or YouTube were ever granted licenses to reproduce, distribute, publicly perform or otherwise exploit the Composition.”
And back and forth it went with neither side relinquishing ground. The suit was dubbed “the dancing baby case.”
The Recording Industry Association of American “respectfully disagrees with the court’s conclusion about the DMCA and the burden the court places upon copyright holders before sending takedown notices,” spokesman Jonathan Lamy told The New York Times. The Motion Picture Association of America also supported Universal.
But Google, Twitter and Tumblr backed Lenz.
The Electronic Frontier Foundation, a nonprofit organization that defends civil liberties in the digital world, said the Lenz case comes a critical time.
“Heated political campaigns – like the current presidential primaries – have historically led to a rash of copyright takedown abuse,” EFF said online Sept. 14. “Criticism of politicians often includes short clips of campaign appearances in order to make arguments to viewers, and broadcast networks, candidates, and other copyright holders have sometimes misused copyright law in order to remove the criticism from the Internet.”
The EFF’s McSherry said the court decision, “has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”
Unfortunately this story does not end here.
The parties will now go to trial over whether or not Universal misrepresented its good faith belief that the video did not constitute fair use. The trial could be delayed if Universal decides to appeal the appeal’s court ruling to the U.S. Supreme Court.
In the musical words of Prince himself it’s enough to make doves cry.