"Dancing Baby" decision on fair use considerations may help and hurt journalists

Jennevieve Fong | Content Regulation | News | September 30, 2015

The recent decision by the U.S. Court of Appeals (9th Cir.) to require copyright owners to consider "fair uses" of their work before requesting takedowns may be a double-edged sword for journalists and bloggers who work with online content.

In the eight-year-long case of Lenz v. Universal Music Corp, Universal filed a takedown notice under the Digital Millennium Copyright Act of 200 YouTube videos, including Lenz’s 29-second long home video of her two sons dancing to Prince’s hit song, "Let's Go Crazy." Universal stated they had “good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.”

Under representation of the Electric Frontier Foundation, Stephanie Lenz filed a lawsuit in 2007 against Universal, musical artist Prince’s copyright administrator had knowingly “misrepresenting Lenz’s ‘Let’s Go Crazy #1’ posting as infringing.”

“[The recent] ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” EFF Legal Director Corynne McSherry stated in a press release. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

Journalists were always able to incorporate copyrighted work in their publications under “fair use,” but this ruling secures journalists’ rights to use copyrighted content without the threat of copyright holders abusing their abilities to take down their work.

Kathleen Lu, an associate from Fenwick and West LLP who has written on this topic, said journalists are often targeted with fraudulent takedown notices in order to censor any negative press. This is “a clear abuse of copyright law and the DMCA notice and takedown system.”

Under Copyright Law § 107, the use of copyrighted works for “criticism, comment, news reporting, teaching…, scholarship, or research is not an infringement of copyright.”

“Fair use is protected by federal law,” Paul Fletcher, President of the Society of Professional Journalists, said. “Congress in 1976 laid out the requirements that have been used to protect journalists, whether online, print or broadcast, from any copyright claims.”

Fletcher said journalists who stay within traditional and very broad outlines for using others’ material should be fine.

“Since reporters engage in fair use all the time, I think it’s a very important case for them,” McSherry said. This is “very important for reporters because if Universal Music Group’s version of the world had won today, then it would’ve be possible for copyright owners to send takedown notices for even stories or reviews ... that were engaging in very fair uses like quoting texts in a review.”

However, this ruling makes it harder for journalists to protect their own copyrighted work. It creates another hurdle for writers or artists to remove unauthorized versions of their content.

Under Copyright Law § 107, copyright holders must use judgement on the following factors to measure fair use: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

Lu said journalists can validate their deliberation of fair use by noting what factors are considered before sending a takedown notice. These relevant factors may include if new use by a competitor selling the piece, if the piece was editorial or factual and if a short quote or whole article is used.

“Thus, like all copyright holders, journalists should avoid knowing material misrepresentations when sending any takedown notices,” Lu said. “In other words, senders of takedown notices should not behave irresponsibly or maliciously.”

If the copyright holder cannot show their legal determination of “fair use,” they may be liable for damages. Universal will face trial to demonstrate their consideration of “fair use” and decide if they are liable to pay Lenz.

Related Reporters Committee resources:

· The First Amendment Handbook: 10. Copyright