Copyright Owners should consider Fair Use before YouTube Takedowns

Photo Credit: Michael Ochs Archives

Photo Credit: Michael Ochs Archives

By Scott Kennedy

Spend enough time following YouTube links, and you will know disappointment: “This video is no longer available due to a copyright claim by . . . .” Copyright owners, especially big ones, routinely monitor online media exchange platforms for their intellectual property. When they find a video or recording posted without permission, they can demand the website remove it. But some web users think enforcement efforts are going too far. Sometimes copyright owners demand removal even of original content incorporating only a small amount of copyrighted material.  A pending lawsuit, Lenz v. Universal Music Corp., has become a focal point of this controversy. After a summary judgment ruling this week by the U.S. District Court for the District of Northern California, the case seems likely to go to trial.

Several years ago Stephanie Lenz uploaded a 29 second video of her small child dancing to a video of Prince’s “Let’s Go Crazy” playing in the background. One of Universal’s employees found the video and sent a notice to YouTube demanding its removal, and YouTube complied. Lenz, however, believes that her copy of the Prince video constitutes an obvious fair use of the copyrighted material.

Fair use is an exception to copyright protection. It permits third parties to reproduce copyrighted material without permission under certain circumstances including news reporting, criticism, education, or research. 17 U.S.C. § 107 describes four factors that should guide a fair use analysis: one must consider the character of the use (especially whether or not it was commercial), the nature of the work copied, the amount used relative to the substantiality of the new content, and possible effects on market value of the copyrighted material. Under this analysis, someone who copies only a small amount of protected material by incorporating it into a new work that adds significant meaning, and who does so for a non-commercial purpose that is unlikely to harm the copyright owner’s interests, may qualify for the fair use exception.

Lenz sued Universal on the theory that their takedown request was meritless and had not be undertaken in an informed, good faith belief that the copyright had been infringed. In its motion for summary judgment, Universal argued that, although its employee did not explicitly consider a fair use analysis before requesting the takedown, he did happen to consider things that could be relevant to a fair use analysis. For instance, he noted that the clip used the name of the Prince recording as part of its title. The court was not persuaded: it clarified that the copyright owner needs to explicitly consider the appropriate factors in the context of a fair use analysis. Neither was the court persuaded by Lenz’s cross-motion for summary judgment, however Lenz had not yet shown enough evidence to demonstrate that Universal had blinded itself to a reasonably obvious fair use. But it concluded that she was free to pursue that argument at trial.

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