by : Featured Articles, Music Law, October 2015

The Fair Use Check

The Fair Use Check

Unless you have been following the case of Lenz v. Universal Music Publishing Group1, you would probably never imagine using the words “dancing baby” and “Prince” in the same sentence. Not unless you were perhaps commenting on some home videos of Great Britain’s Prince George. The case, which could just have easily involved a cat video that used a Madonna recording, is actually about fair use and its relation to a provision of the Digital Millennium Copyright Act (DMCA) regarding takedown notices. On September 14, 2015, the Ninth Circuit Court of Appeals rendered its decision in the case.

The Potentially Infringing Event

In February of 2007, Stephanie Lenz uploaded a 29 second video to YouTube, which featured her young children dancing to an audio recording of Prince’s “Let’s Go Crazy.” The “Let’s Go Crazy” audio recording embodied a musical work by the same title, which was written by Prince, and administered by Universal Music Publishing, neither of whom granted Lenz a license to use the work.

The Detection and Evaluation

Around the same time, an assistant in the legal department at Universal Music Publishing Group (UMPG) was diligently searching YouTube, on the lookout for potentially infringing uses of musical works administered or owned by UMPG, within the site’s user generated content. He found Lenz’s video, which was presumably not that difficult since she titled it “‘Let’s Go Crazy’ #1.” What happened after the assistant identified the video is what this case is all about. Despite popular belief among non-lawyers, this case is not about whether the use was actually an infringement or not. It is not about whether or not Prince has the right to prevent people from using his music in user generated content. Rather, it is about the process that unfolds after a potentially infringing use on a digital service platform has been identified.

After identifying the video on YouTube, the legal assistant evaluated the use, considering several factors. Those factors were whether or not there was a significant use of the musical work, specifically, if it was recognizable, as opposed to being distorted, and if it was in a significant portion of the video, or was the center of focus in the video, as opposed to only being heard for a second or two, or playing in the background behind lots of other noise. After performing the evaluation, the assistant determined that indeed the musical work was significantly used in the video.2

The Takedown and Put Back

Based on the evaluation, UMPG sent YouTube a takedown notification regarding the Lenz video. The takedown notification also listed more than 200 other videos that they believed were infringing on Prince’s musical works.3 Such takedown notices are par for the course for copyright owners who seek to protect their works in the online world. Takedown notices and procedures are a key part of the safe harbor from copyright infringement liability that the DMCA established for digital service providers, like YouTube.4 While a copyright owner can always decide to sue a party who directly infringes on their copyright, such as Lenz, the DMCA process is what many copyright owners follow initially when seeking to have what they consider infringing uses of their work taken down from a service. The activity of sending takedown notices is unfortunately, yet accurately, often analogized to the carnival game Whack-A-Mole in that as soon as one infringing use is taken down, another one pops up.

The DMCA process, which can be found in section 512 of the US copyright law (formally cited as 17 U.S.C. §512), has very specific requirements. One requirement is that takedown notices include six specific pieces of information, including “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.”5 The UMPG takedown notice contained such a statement.6

Once YouTube received the takedown notice from UMPG, they removed the video from the service and notified Lenz, in accordance with §512(c)(1)(C), and §512(g)(2)(B). Lenz then exercised her right under §512(g)(3) to file a counter notice, claiming that her video did not infringe on UMPG’s rights because it constituted fair use, and demanding the video be re-posted. YouTube then reposted the video back onto its service, in accordance with the DMCA put-back procedures described in §512(g)(2)(C).7

The Lawsuit

About a month later, in July 2007, Lenz brought suit against UMPG. She made three claims in her lawsuit at the outset. One of the claims was a request for the court to decide (called a declaratory judgement) if her use of “Let’s Go Crazy” in her video was a fair use or not. The court declined to make a declaratory judgement because UMPG had not brought a copyright infringement suit against Lenz and expressed that it had no intention of suing her for direct copyright infringement.8 Another claim was that UMPG intentionally interfered with her contractual use of YouTube’s hosting service, although Lenz later chose to abandon this claim. The only claim of the initial three that remained as the claim in the case was that UMPG misused the DMCA takedown process by knowingly misrepresenting that Lenz’s use of the musical work “Let’s Go Crazy” was infringing, which is prohibited under section 512(f), and therefore, is liable for damages incurred by Lenz as a result of the misrepresentation.9

As typically happens in a case like this, both parties ask the trial court to dismiss the case, arguing that, even if the court assumed every fact the other party alleges is true, once the law is applied to the facts, the other party does not have a case to pursue (called a cause of action). The trial court denied both parties motions to dismiss, and the court’s decision was appealed to the Ninth Circuit Court of Appeals.10

The Appellate Court Ruling

The Ninth Circuit Court judges decided several questions. The main question was whether a party can have good faith belief, as stated in a takedown notice pursuant to §512(c)(3)(A)(v), that the use of their material is not authorized by the copyright owner, its agent, or the law, if they have not considered whether or not the use may be a fair use. The court said no, based on how it decided to view fair use, which is a key part of the decision. UMPG argued, unsuccessfully, that fair use is not a use authorized by law, but rather a defense to an unauthorized use. The court disagreed and found that fair use is a use authorized by the law, even if, procedurally in an infringement lawsuit, it must be proven by the alleged infringer. It is to be regarded as a use authorized by law, in much the same way that a compulsory license would be regarded. Therefore, in order to have a good faith belief that a use of material is not authorized by law, fair use must be considered.11 The court said that whether or not the specific evaluation that UMPG undertook was a consideration of fair use, even if not labeled as such, was a question of fact that should be left to a jury to determine.12 The court also acknowledged that computer algorithms are often used today to detect potentially infringing use due to the volume of content to be analyzed, and made clear that a copyright owner need not have a human evaluate each use, nor perform an extensive legal evaluation of each use to determine with a high degree of certainty if it is a fair use.13 However, in order to avoid violating §512(f) by misrepresenting that it has a good faith belief that a use is not authorized by law, a copyright owner must consider fair use in its analysis.14

The court also addressed whether or not a concept called willful blindness, which is where a party subjectively believes that there is a high likelihood that a fact exists, and then takes deliberate actions to avoid learning about the fact, could be applied when determining if UMPG violated §512(f). The court said no because there was no evidence that UMPG believed there was a high likelihood that the video was a fair use, even though Lenz argued that her video was “self-evident” fair use.15 While of far less interest to the non-lawyer music business professional, the court also addressed what sort of damages a plaintiff can seek for a violation of §512(f), and confirmed that a plaintiff need not have incurred actual monetary loss, but can seek nominal damages due to an “unquantifiable harm.”16

The Takeaway

The court in this case determined that fair use must be considered before a copyright owner can make a good faith representation, in a takedown notice, that a use he is claiming is infringing on his work is not authorized by law. Further, it confirmed that fair use is a use authorized by law, rather than merely a defense to an unauthorized use, even if the burden to prove fair use falls on a defendant in a case. It does not decide whether or not the use of Prince’s musical work “Let’s Go Crazy” in Lenz’s video is a fair use, or whether or not the specific procedures followed by UMPG in evaluating Lenz’s use of the musical work amounted to a fair use analysis, even if not labeled as such. Therefore, while this case does not give creators of user generated content free reign to use copyrighted works under the guise of fair use, this case is important to those who champion fair use, those who toil away at protecting their copyrights in the online world, and perhaps to Prince fanatics everywhere, including your writer.

Professor Serona Elton is Director of the Music Business and Entertainment Industries Program at the University of Miami and a MEIEA Past President.


1. Lenz v. Universal Music Corp, Nos. 13-16106, 13-16107, 2015 WL 5315388 (9th Cir. 2015).

2. Lenz, 2015 WL 5315388, at *2.

3. Id.

4. The Digital Millennium Copyright Act safe harbor provision is codified in section 17 U.S. Code §512 – Limitations on liability relating to material online.

5. 17 U.S.C. § 512(c)(3)(A)(v).

6. Lenz, 2015 WL 5315388, at *2.

7. Id.

8. Lenz v. Universal Music Corp, No. 5:07-cv-03783-JF, docket entry, Order Granting Defendant’s Motion to Dismiss With Leave to Amend As to Claims 1 and 2 and Without Leave to Amend As to Claim 3; Denying Special Motion to Strike Without Prejudice, at 8 (N.D. Cal. April 8, 2008).

9. Lenz v. Universal Music Corp, No. 5:07-cv-03783-JF, 2010 WL 702466, at *1 (N.D. Cal. February 25, 2010).

10. Lenz v. Universal Music Corp, 572 F.Supp.2d 1150 (N.D. Cal. August 20, 2008).

11. Lenz, 2015 WL 5315388, at *2.

12. Id. at *7.

13. Id. at *8.

14. Id. at *7.

15. Id. at *9.

16. Id. at *10.

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