Monday, September 14, 2015

DMCA - Prince and a dancing baby

   On September 14th, the Court of Appeals for the Ninth Circuit issued a ruling concerning copyright law, the Digital Millennium Copyright Act (DMCA), Prince the musician, and a dancing baby.  See Stephanie Lenz v. Universal Music Corp., et al. (I am hosting this document on

   The underlying case centers around a 29-second home video of Stephanie Lenz's baby dancing to Prince's song "Let's Go Crazy." See Opinion pages 5-7.  Ms. Lenz posted the video to YouTube, and Universal Music Publishing Group (Universal) sent a DMCA takedown notice. The video was removed. Ms. Lenz sent a counter-notification, and eventually the video was reinstated.

   The issues in this appeal concerned Ms. Lenz's claim that, under DMCA Section 512(f), Universal misrepresented that her video infringed a Universal copyright. In relevant part, Section 512(f) imposes liability upon copyright holders "who knowingly materially misrepresents under this section -- (1) that material or activity is infringing ... shall be liable for damages".  17 U.S.C. § 512(f).  The Court held that fair use must be considered by a copyright holder before it sends a DMCA takedown notice under Section 512(c) because "fair use is 'authorized by law'" and therefore is not an infringing use. See Opinion page 15.  To satisfy that requirement, a copyright holder need only form a subjective good faith belief that the use is not authorized.  See Opinion pages 15-16.

   Furthermore, the Court held that a plaintiff may seek recovery of nominal damages, which could include cost of the lawsuit and attorneys' fees, for an injury incurred as a result of a Section 512(f) misrepresentation. See Opinion pages 22-25.

   Thus, if you are a copyright holder, you should modify your DMCA takedown notice procedures to include a fair use analysis.

- Henry Park

updated on 9/22 to add last paragraph; 10/17 to identify document hosting on third-party server

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