In Lenz v. Universal, an appeals court in San Francisco today ruled that a rights holder must consider whether a use is fair before sending a takedown notice. The “Dancing Baby Case,” you may recall, is about a takedown notice a mother received after uploading a video to YouTube showing her baby dancing to Prince’s “Let’s Go Crazy.” The court found that rights holders cannot send takedown notices without first considering whether the use of the copyrighted content is fair. This ruling not only clarifies the steps that rights holders should consider before issuing a takedown notice, it also bolsters the notion that fair use is a right, not just an affirmative defense to infringement.
“Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”
“Although the traditional approach is to view ‘fair use’ as an affirmative defense . . . it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused–this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996).
The court’s ruling is one that reflects what people understand to be a fair use. The general public thinks that integrating portions of copyrighted content in non-commercial user-created videos is reasonable. Today, there are so many dancing baby videos on YouTube that people are starting to curate them!
I like when the law makes sense to regular people – after all, in today’s digital environment, copyright affects the lives of everyday people, not just the content industry. Many hope that Congress also understands this as it considers copyright review. Congratulations to the Electronic Frontier Foundation for their leadership on this litigation over the past several years.