By: Jeff Coy
The American Bar Association’s (ABA) Legal Technology Resource Center (LTRC) tweeted an article by the ABA October 14th about the latest news on a copyright case regarding a YouTube video. Eight years ago, Stephanie Lenz posted a video of her son dancing to the song “Let’s Go Crazy” by Prince. The YouTube video started a conflict with the singer’s copyright holders, Universal Music Corp. Universal sent YouTube a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA) on claims that the video violated their copyright in the song.
The 9th U.S. Circuit Court of Appeals ruled that a copyright holder must take fair use into consideration before sending a takedown notice to a website. Universal’s attorneys argued that the company shouldn’t have to make such consideration because it was available to Lenz as an affirmative defense in a copyright infringement lawsuit.
U.S. Circuit Judge Richard Tallman wrote “Fair use is uniquely situated in copyright law so as to be treated differently that traditional affirmative defenses.”
The Electronic Frontier Foundation (EFF) argued that Universal should have been found liable for misrepresentation when it sent its takedown notice. The non-profit organization defends civil liberties in the digital world. Legal Director Corynne McSherry of the EFF, was pleased the court affirmed that copyright holders must consider whether a use is fair before sending a takedown notice. McSherry stated, “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”
Fair use is a provision of the copyright law that permits a limited amount of copying of material that has been properly copyrighted (Mass Media Law 19th edition). It protects only original authorship. The rule also protects the use of material for criticism, educational, or news purposes. Over the weekend, I made a music video to the song “#Selfie” for class. I recorded multiple videos of people using my phone to record the “pictures” and edited the song over it all. This is protected for fair use because it was for a class project. Educational use is protected as long as it’s spontaneous (not enough time to get permission), brief, carries a copyright notice, has a limited number of copies, and not a substitute for purchase of the original work.
In many cases, people might record themselves or friends dancing to a song like Lenz did for fun. This is a popular thing to do for people on the internet. What could happen if Lenz’s video is found in violation of Universal’s copyright? Will other big music companies start censoring the public on the web? Many motion picture organizations and the music industry support Universal in the case, while websites such as Tumblr, Google, and Twitter support Lenz.
Picture By: Duncan Hull (Dullhunk) of flickr
McGraw Hill Mass Media Law 19th edition by Don Pember and Clay Calvert
“Let’s Go Crazy” #1 video on YouTube
American Bar Association Article, “Copyright holders must consider fair use before sending takedown notices, 9th Circuit says“