FBI Warning - Fair Use

FBI Warning: Fair Use

A California case is drawing the eyes of the music industry and helping to define what constitutes the “fair use” of copyrighted material.  In Lenz v. Universal Music, Stephanie Lenz uploaded a 29-second clip to YouTube of her toddler dancing while Prince’s 1984 hit “Let’s Go Crazy” was playing in the background.  Universal, owner of the copyright to “Let’s Go Crazy,” requested that YouTube remove the video, which they did, further banning Ms. Lenz from uploading any more videos for good measure.  Incensed by the possibility of having her toddler’s future in show business cut short, Lenz sued, arguing that Universal’s takedown request to YouTube was deceitful because it failed to consider fair use of copyrighted material.

Lenz’s argument was that Universal abused the Digital Millennium Copyright Act (“DMCA”) by sending a frivolous takedown request to YouTube.  The DMCA provides that a copyright owner may demand that an offending party remove material that they have used without permission.  The Court ruled, however, that copyright owners must consider whether a person has made fair use of the copyrighted material before sending a takedown request.

But what does the law consider fair use?  Fair Use is a legal doctrine that allows a party to use copyright material without permission as long as the party follows certain guidelines.  This case is unusual because fair use typically works as a defense to copyright infringement.  The issue is not whether the copyright protects the work, or whether the accused made use of it without permission, but rather whether the unauthorized use is allowed.  The fair use of copyrighted material provides a legal safe harbor for commentary, criticism, or parody of the material.  Although there are no hard and fast rules for defining precisely what fair use is, the U.S. Copyright Office has issued the following guidance to help you decide:

  1. What is your reason for using the copyright material?  Is it for nonprofit, educational purposes or for business goals?
  2. What is the nature of the copyright material?
  3. How much of the copyright material do you plan to use when compared to the work as a whole (e.g. how many seconds or minutes from a whole song)?
  4. How much less money, if any, would the copyright owner make because you are using their work?

The more your use of copyrighted material leans toward educational rather than commercial purposes, the more likely you’re making fair use of the material.  The same is true when the use is of only a small part of the total work, and where the copyright owner is unlikely to lose much money due to the use.  The type of work also matters.  Copying a rare documentary will not have the same impact as copying a famous pop song.

The Court’s decision that a copyright owner must consider fair use before sending a takedown notice, however, didn’t end the case.  The judge left open whether Universal made a sufficient fair use consideration before sending its takedown request.  While Universal conceded that it may not have considered fair use per se prior to issuing the takedown notice, the record showed that its employee was able to clearly identify the song in the video (which was titled “Let’s Go Crazy #1”), suggesting that Lenz’s work would not have had the same visibility or appeal without the Prince song.  Universal also noted that Lenz played the song loudly throughout the video and asked the toddler whether he liked the song.

Lenz’s attorneys argued that Universal made no real analysis of whether the video was fair use of the song, issuing its takedown notice simply because it considered the use excessive.  Neither side won the judge’s heart completely.  The court commented that a fair use evaluation does not require a full-blown, detailed analysis but does, however, require that the copyright owner show some evidence that it had applied doctrine of Fair Use to all the facts and circumstances prior to issuing a takedown notice.

The Court also offered a mixed bag of conclusions on the issue of damages.  It reasoned that Lenz suffered no harm by being YouTube’s ban (it being a free service), or that Universal violated her first amendment rights (secondary damages argument) by issuing the takedown notice.  The Court left open the possibility, however, that Lenz could recover for expense of resources (electricity, phone and internet bills, etc.), her time, and attorney fees in fighting to get her video up on YouTube again.  The case is now set for trial, as the judge was not willing to settle these matters without a full exploration of the facts.

If you were sitting on the bench, how would you decide the case?  Was Lenz’s use of “Let’s Go Crazy” fair use?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.