When a YouTube video featuring Holden Lenz first became the subject of a copyright tug-of-war court case, he couldn’t even talk and could barely walk. Now, at 9 1/2, he’s nearly old enough to read about the court ruling earlier this week settling the case for the time being.*
The saga of this video and the lengthy court fight over it dates to early 2007, when Holden was just a little over a year old. That was when his mother, Stephanie Lenz, posted a 30-second video of him dancing around behind a push-toy in his red onesie, while the Prince song “Let’s Go Crazy” plays in the background. Citing copyright concerns, Universal Music issued a take-down order.
But Stephanie Lenz, with help from the Electronic Frontier Foundation, decided to push back, saying that she should not be forced to remove the clip from YouTube because even though the song is copyrighted, its use in the video constitutes fair use.
Fair use is a legal principle that says portions of copyrighted works may be used without violating their copyrights if the segment is a relatively small piece of the whole work and is used for purposes that don’t undermine the commercial value of the original. Lenz and the EFF argued that was the situation with her video, and the “dancing baby” case has bounced around in different court venues for the past 8+ years.
But this week the 9th U.S. Circuit Court of Appeals in San Francisco ruled that copyright holders must consider whether a something was being presented as a fair use before issuing a take-down notice.
(I have been teaching about this case, despite its lack of a resolution, for years in my Media Law course. Ironically, this is the first fall semester in about 5 years I am not teaching the course.)
This is an important decision that will help stem the tide of large corporations using copyright as a bludgeon to “lock up the raw materials of culture” (as Charles Mann put it in a 1998 Atlantic magazine article).
More to the point, the decision introduces some sanity and common sense to considerations of copyright and fair use. Who in their right minds at Universal Music even thought that having 30 seconds of Prince’s song playing totally incidentally in the background of a video that had something completely different at its focus — Holden’s dancing — could possibly have been anything but fair use?
Were they concerned about damage to the song’s economic value? Yeah, hordes of Prince fans were about to bookmark this video and use it to satisfy their need to hear his music rather than buying his next release. That’s literally the only rationale to be used for saying this video had to be taken down to enforce copyright, and of course it defies common sense and logic to think that would happen.
So dance on, Holden, and thank you Stephanie and the EFF for showing the tenacity to make this important legal point.
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*Hypothetically, it could be appealed to the Supreme Court, but there is no indication I have seen that the losing party intends to do this.