Copyright “Fair Use” and Enforcing Your Rights

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In Lenz v. Universal, the U.S. Court of Appeals for the Ninth Circuit held that copyright owners must consider whether a potentially infringing use of copyrighted material online constitutes “fair use” before sending a takedown notice. This case, known as the “Dancing Baby” case, would appear to set some precedence with regard to steps that a copyright owner should take before proceeding with a takedown notice, and provides repercussions for those copyright owners who do not do so.

The allegedly infringing use involved a video posted on YouTube, of a baby dancing to the song “Let’s Go Crazy” by a favorite Minnesota pop star, Prince. The copyright aspect relates to the song and its use. Importantly, the clip was only 28 seconds long and the use was not commercial in nature. Other aspects pertaining to fair use, such as that relating to transformation and the effect of the clip on any potential market for the song may at least arguably have been given a nod in the direction of fair use.

The court held that the requirement, under the Digital Millennium Copyright Act, that an owner must have a good faith belief that a use is infringing would need to involve an evaluation as to whether the use would be protected as “fair use.” The court also paved the path for seeking damages when a copyright owner does not carry out such a fair use analysis. While it is unclear as to “how much” of a good faith effort must be put into a fair use analysis, carrying out the analysis in view of the various fair use criteria and making note of the outcome may be prudent.

We invite you to contact us for more information and other assistance in addressing issues relating to fair use, copyright infringement and copyrights in general. For contact information and other informative articles, we invite you to visit us on the web at

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