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Toddler Dances into Copyright Battle

Almost everyone with a smartphone posts online videos these days.

And, whether it's cute kittens chasing a laser pointer in unison or obnoxious fraternity brothers pranking one another with shaving cream, every amateur videographer knows that online videos are always better when they're posted with an accompanying song or music. But, when a young mother sees her toddler getting his groove on to a song playing on the radio and she grabs a quick clip of the spontaneous dancing she should probably think twice before posting the video to her Twitter feed or Instagram account for fear of incurring the wrath of the mythical "Copyright Police." Over the past eight years, Pennsylvania mom Stephanie Lenz has learned the hard way that online video posts can be serious business.

In what has been dubbed the "dancing baby" case, a panel of judges sitting on the Ninth Circuit Court of Appeals recently heard oral argument from attorneys for Ms. Lenz and for Universal Music Publishing Group ("UMPG"), the company that owned the rights to the song in Ms. Lenz's video, "Let's Go Crazy." The popular song with the upbeat tempo was originally released by singer Prince in 1984, but it didn't inspire Ms. Lenz's children to break out their dance moves until 2007. That's also the year when Ms. Lenz posted the video of her kids dancing in the kitchen, a video that has surpassed a million views on YouTube.

The YouTube video is only 29 seconds long, but Ms. Lenz did not own the rights to the song. UMPG owned them. And, when UMPG realized the copyright for "Let's Go Crazy" had been infringed, it sent a "takedown" notice to YouTube under the Digital Millennium Copyright Act (the "DMCA"). Under the DMCA and federal copyright law a mere allegation of copyright infringement can result in the removal of content from the Internet upon receipt of a written takedown notice. In compliance with the notice, YouTube removed the video from its Website.

Not surprisingly, Ms. Lenz was upset by what she considered a gross overreaction by UMPG to her video and she filed a counter-notice under the DMCA. YouTube then reposted the video.

UMPG was content to let things lie, but Ms. Lenz was not. With the help of the Electronic Frontier Foundation ("EFF"), an organization with the stated purpose of "Defending your rights in the digital world," Ms. Lenz filed a lawsuit against UMPG seeking a determination that UMPG had violated the DMCA's "good faith" requirements for issuing takedown notices as well as unspecified monetary damages. Both sides filed competing motions for summary judgement, which were denied by U.S. District Court Judge Jeremy Fogel, who also ordered the case to trial, but Lenz and UMPG filed appeals.

Now, it will be up to the Ninth District to decide whether or not the DMCA (specifically Section 512(f)) places an affirmative burden on copyright owners to analyze and consider whether or not the "fair use" doctrine protects a specific post by a third party before they send a takedown notice to the service provider hosting the post. If such is the case, failure to do so may expose offending copyright owners to substantial monetary damages, including attorneys' fees and costs. Ironically, depending upon the outcome of the appeal, even posts that infringe established copyrights could result in a substantial award against the copyright owner and in favor of the infringer.

Why It Matters.

Even though the Ninth Circuit is unlikely to issue a ruling in the case for at least several months, the case serves as a reminder of important considerations when posting content to a Website or social media account:

  1. If you don't have the right to post it, don't post it.

Everyone, whether they admit it or not, secretly hopes the next video they post is not only popular with their friends and family but attains a "trending" status and so there is often an added pressure to enhance video content by using music, images, or other video clips to make the video more interesting. And with the popularity of video content in driving Internet traffic to Web sites and social media accounts, many businesses get caught up in the hype. They encourage their employees to continually post fresh content without anyone, especially the company's legal counsel, reviewing it first.

Unfortunately, the pressure to produce new content often leads to shortcuts, such as using third party content without obtaining permission or determining that it is in the "public domain." And, of course, the problem is that most content on the Internet is protected by copyright, the use of copyrighted material without permission constitutes infringement, and infringement, especially intentional infringement, can lead to substantial monetary penalties.

  1. Don't expect "fair use" to be an adequate defense for infringement.

"Fair use" can be an elusive concept for many people who mistakenly believe it gives them certain rights to use copyrighted material owned by someone else. In fact, it is a narrowly-defined legal concept that is used as a defense to a claim of copyright infringement under certain select circumstances. Courts have construed "fair use" very narrowly while the general population has perpetuated the myth that it provides very broad protection. In its most general sense, fair use is any copying of copyrighted material done for a limited and "transformative" purpose, such as to comment upon, criticize, or parody a copyrighted work without permission from the copyright owner. Such use is not unlawful or actionable. However, the analysis is subjective and there is literally no way in advance to know for certain that the defense of "fair use" will protect any specific unauthorized use of copyrighted material.

  1. Be careful to know what "else" is depicted in the video.

When shooting impromptu videos, most people pay little attention to the folks in the background or the inclusion of easily recognizable consumer products and trademarks inadvertently included in the video even though the video may portray them in an unflattering manner. The problem with including people in a posted video is that they may claim a violation of their "right of publicity" (the right to profit from the use of their own image) or their "right of privacy" (the right to be left alone). And, if it makes them look foolish, they even may claim defamation.

Similarly, no business wants its good name to be associated with ill-advised skate board maneuvers or the antics of the neighborhood automobile daredevil. When videos depict products or companies in a poor light those companies are likely to turn to their corporate attorneys to take action against whoever posted the video in the first place.

  1. Businesses should make use of the DMCA's "safe harbor" provisions.

As YouTube, Facebook, Instagram and other Internet sites have learned the hard way, people will post just about anything they can record with their cell phone, even if it exposes someone to claims of copyright infringement. Luckily for them, the Digital Millennium Copyright Act (or "DMCA") provides protection from liability for the owners of Web sites and applications if they comply with certain DMCA requirements. Known as DMCA "safe harbors," compliance with certain provisions of the law can protect service providers from monetary liability based on the allegedly infringing activities of third parties. In order to benefit from such protection, service providers must comply with conditions such as "notice and takedown" procedures that give copyright holders a quick and easy way to disable access to allegedly infringing content. The DMCA also provides protection for the people who posted the videos by allowing them to challenge improper takedowns.

Without the DMCA protections the risk of potential copyright liability likely would prevent many online companies from providing services such as hosting and transmitting user-generated content. By virtue of the use of the safe harbors the Internet has been able to serve as a breeding ground for innovation, free expression, and entertainment, even when that entertainment consists of a couple of kids dancing in a kitchen to a song recorded decades before they were born.

  1. Businesses must understand their DMCA obligations.

Online businesses that allow users to post content should carefully consider their obligations under the DMCA and establish procedures for handling takedown notices that are consistent with the DMCA and with the Court's upcoming ruling in the "dancing baby" case. Failing to follow the DMCA requirements, whether as the party posting the content, the party owing the underlying copyright(s), or the party hosting the posted content, can result in significant financial exposure and create unexpected headaches and protracted legal battles.

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