Recent News - 9th Circuit: Dancing Baby Can Continue Dancing, For Now

Today the Ninth Circuit ruled in favor of Stephanie Lenz, a mother who has been fighting in court with Universal Music Group about a 29-second YouTube video of her children dancing to a Prince (or is it the artist formally known, but now known again, as Prince?) song.

In 2007 Lenz uploaded the video to You Tube for her friends and family to enjoy. Shortly after, Universal Music Group (the song’s publisher) sent a “takedown notice” to You Tube to have the video removed. You Tube, under the Digital Millennium Copyright Act (DMCA), obliged and the video came down. Lenz petitioned to have the video reinstated and now alleges that the take down notice was unnecessary as Lenz’s use of the song (which was playing in the background) was fair use.

The DMCA requires that a person sending a “takedown notice” certify that he or she believes, in good faith, that the questioned content is in fact infringing on the copyright holder’s rights. When a court is faced with this issue, it weighs four factors to determine if the content violates copyright law. A person sending a “takedown notice” does not have to do a detailed analysis, but the good faith standard requires some evaluation.

In the case of the dancing baby, Universal asserted that the Prince song was the focus of the video because Lenz specifically asked her children if they liked the song and she used the song name in the title of the video. While the answer to this assertion was not before the court, the Ninth Circuit did find that there is enough of an issue about whether the video was fair use for it to proceed to trial.

The trial court will have to determine whether Universal “knowingly misrepresented” the good faith belief that the video was unauthorized. It is now up to a jury to decide the fate of the dancing baby, but for now, Lenz’s kids can still be seen doing what kids do best - having fun dancing in the kitchen.