Eight years after Stephanie Lenz posted a video to YouTube of her son dancing playfully as Prince’s “Let’s Go Crazy” played softly in the background, a panel of judges on the U.S. 9th Circuit Court has ruled in favor of the ‘dancing baby.’
In the decision, filed yesterday, the 9th Circuit says that copyright holders must first consider whether the material at issue was used fairly BEFORE sending a takedown notice or cease and desist letter. Universal argued that it did consider the video’s fair use before sending the takedown letter. The 9th Circuit also said that a jury would ultimately have to decide whether Universal did its due diligence in determining whether it constituted “fair use.”
After the video was originally posted, Universal sent Lenz a notice demanding that she take the video down for copyright infringement under the Digital Millennium Copyright Act (DMCA). The Electronic Frontier Foundation, a nonprofit group advocating for civil liberties in the digital world, sued Universal on behalf of Lenz and argued that they had incorrectly targeted a case of lawful fair use.
Do you think this is a case of lawful fair use? What are the implications of this decision for fair use law and future lawsuits? Should copyright holders be required to consider fair use before sending a takedown notice?
Dan Nabel, associate counsel at Riot Games, former interim director of the Intellectual Property & Technology Law Clinic at USC’s Gould School of Law, where he still teaches a class on video game law