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Dancing baby fair use case could end with settlement

By | Published on Monday 11 June 2018


The long running ‘dancing baby’ case that tested the obligations of takedown issuers to consider whether unlicensed use of their copyright material is ‘fair use’ could be finally reaching a conclusion via an out of court settlement.

This dispute began way back in 2007 when one Stephanie Lenz posted a video onto YouTube of her child dancing to the Prince track ‘Let’s Go Crazy’. Universal Music Publishing, then repping the Prince songs repertoire, had Lenz’s video removed using the takedown provisions in America’s Digital Millennium Copyright Act. But Lenz argued that the short video was ‘fair use’ under US law and then – with support from the Electronic Frontier Foundation – sued Universal for abuse of the DMCA.

The lawsuit posed the question of whether or not a rights owner issuing a DMCA takedown was required to first consider whether any video using music it controlled without permission was covered by the ‘fair use’ principle under US copyright law. If the video did constitute ‘fair use’, no licence would be required, so no takedown should be issued.

The litigation spent years going through the motions, before the Ninth Circuit court ruled in 2015. It said that yes, rights owners must indeed consider fair use rules before issuing a takedown notice. So, success for Lenz.

However, the appeal judges then said that this consideration need not be too rigorous, and providing that the label genuinely didn’t think fair use applied, well, that was alright then. So, success for Universal. Though the major was less keen on the Ninth Circuit’s concurrent opinion on how any damages relating to the case might be calculated.

Both sides subsequently referred the matter to the American Supreme Court, where the Solicitor General in the US Department Of Justice was consulted. But ultimately the top court decided not to consider the case. That meant that the whole thing seemed likely to return to a lower court, where the Lenz side would have argued that Universal failed the albeit low-bar requirement provided by the Ninth Circuit regarding the fair use check in the takedown process.

But last week a note from the judge overseeing the case stated that a provisional settlement had now been reached by both parties in the dispute, though the note added that the final wording of that settlement is still to be agreed.

Assuming both parties do ultimately sign up to that settlement deal, it will bring to an end an eleven year case that outlasted the musician whose music it involved. And while the case did confirm that fair use must be considered during the takedown process, it didn’t provide much clarity on what that means, especially in the age of Content ID and similar technologies used by other platforms.