The Dancing Baby Wins: Copyright Owners Must First Consider Fair Use before Sending DMCA Takedown Notice

Millennium Copyright Act (DMCA) allows them to issue a takedown notice to a website, essentially forcing the website to remove allegedly infringing material from the site. To be effective, however, the takedown notice must comply with the requirements set forth in the DMCA, one of which is the inclusion of "[a] statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." 17 U.S.C. § 512(c)(3)(A). A federal court recently interpreted this requirement and held that to validly claim a good faith belief that use of material is not authorized by law, a copyright holder must consider whether use of the material constitutes fair use. See Lenz v. Universal Music Corporation, 572 F.Supp. 2d 1150, 1154-55 (N.D. Cal. 2008).

Lenz arose after the plaintiff, Stephanie Lenz, posted a video on YouTube of her baby dancing to the Prince song "Let's Go Crazy." After Lenz posted the video, Universal sent YouTube a takedown notice pursuant to Section 512(c) of the DMCA. YouTube promptly removed the video and sent Lenz an email notifying her that it had done so in response to Universal's accusation that the video infringed Universal's copyright in the Prince song. Lenz then sent YouTube a DMCA counter-notification demanding that the video be re-posted because she claimed that the video constituted fair use of the song and, thus, did not infringe Universal's copyright. Lenz also brought suit against Universal claiming, among other things, that Universal's takedown notice constituted a misrepresentation under Section 512(f) because it was "obvious" that the video constituted a fair use of "Let's Go Crazy." Therefore, Universal did not have a good faith belief that use of the song in Lenz's video was not authorized by law. See 17 U.S.C. § 512(c)(3)(A).

The court agreed with Lenz and her dancing baby. The court interpreted "authorized by law" to mean an activity that is "permitted by law or not contrary to law." Id. Based on this definition, even if the fair use doctrine only excuses copyright infringement, as Universal contended, it was still a lawful use of a copyright (see 17 U.S.C. § 107) and, therefore, authorized by law. Id. According to the Lenz court, this means that fair use must be considered in order to validly claim a good faith belief that use of material was not authorized by law. Id. As a result, Lenz's allegation that Universal acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine stated a valid claim, and Universal's motion to dismiss was therefore denied. Id. at 1155.

What Lenz Means For Copyright Holders

The Lenz decision probably has less impact on copyright holders than one might first suspect. To be sure, in light of Lenz, copyright holders should consider fair use before sending a DMCA takedown notice. Copyright holders may want to reconsider policies or procedures that call for the issuance of takedown notices merely because unauthorized copyrighted material is found on a website. In other words, automatic takedown notice policies that don't allow for fair use consideration present some risk of liability under Section 512(f) – at least in light of the Lenz decision.

Lenz does not, however, imply that copyright owners must come to the correct decision about whether use of material constitutes fair use or even that they must carefully consider the fair use issue. In fact, the Lenz court noted that "there are likely to be few [instances] in which a copyright owner's determination that a particular use is not fair use will meet the requisite subjective bad faith required to prevail in an action for misrepresentation under 17 U.S.C. § 512(f)." Id. at 1155 (citations omitted). Thus, copyright owners should make a determination that use of material is not fair use, but such a determination may not necessarily have to be correct.