Baby Steps Toward Clarity on Fair Use

Baby Steps Toward Clarity on Fair Use

In 2007, when a mother uploaded a 29-second video of her daughter dancing as Prince’s “Let’s Go Crazy” blared in the background, she had no idea that eight years later she would represent the case for fair use. Dig if you will the details …

According to The New York Times, Prince’s publishers, Universal, objected to Stephanie Lenz’s use of the song in the video, and Ms. Lenz responded with a lawsuit, arguing that her use of Prince’s copyrighted material was protected by fair use.

Last month, the United States Court of Appeals for the Ninth Circuit, in San Francisco, allowed the “dancing baby” case to go to trial, and “set a guideline that may change the way media companies police their holdings online.” The three-judge panel ruled that “copyright holders must consider fair use before asking services like YouTube to remove videos that include material they control.”

The Electronic Frontier Foundation, the advocacy group that represents Ms. Lenz, hailed the judges’ decision and called it “strong message that copyright law does not authorize thoughtless censorship of lawful speech.”

Universal, supported by the Motion Picture Association of America and the Recording Industry Association of America, contended that “fair use should be considered an ‘affirmative defense’ only when part of an infringement suit.

According to the three judges, however, fair use was “uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.”

Bottom line per The Times, before issuing takedown notices, copyright holders must consider fair use.

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