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‘Fair Use’ Should be Considered in Case of Homemade Prince Video, Says Appeals Court

Universal Music Corp. should have considered whether a woman’s 29-second video of her two kids dancing to Prince’s “Let’s Go Crazy” was a fair use before issuing a takedown notice to YouTube, an appellate court panel concluded in a ruling issued on Monday.

The woman, Stephanie Lenz, sued Universal Music Corp. and Universal Music Publishing in 2007, after the label sent a takedown notification to YouTube. Universal Music claimed that the video was infringing because there was no record that either she or YouTube obtained a license. Lenz sent a counter notification, and YouTube eventually reinstated the video that year.

A three-judge panel of the 9th Circuit Court of Appeals concluded that “the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”

At the time, Universal Music was Prince’s publishing administrator, and the video was discovered by an assistant in the legal department who monitored YouTube on a daily basis. The assistant had concluded that because “Let’s Go Crazy” was “very much the focus of the video,” a takedown notice should be sent. Yet “none of the video evaluation guidelines explicitly include consideration of the fair use doctrine,” the appellate court noted.

Michael Donaldson, partner at Donaldson & Callif, which specializes in representing independent filmmakers, said a significant part of the ruling is that the judges said “categorically that fair use is a right, not an affirmative defense.”

“Procedurally, the person claiming [fair use] has to prove it,” Donaldson said. “But it is not an affirmative defense, as in ‘I did something wrong and this is my way of getting out of it.'”

The judges wrote that “fair use is not just excused by law, it is wholly authorized by the law.” They called Universal Music’s argument “incorrect” — that fair use was not authorized by the law because it is an affirmative defense that excuses otherwise infringing conduct.

Donaldson added, “It is not the first time a court said that, but this case really shined a spotlight on that.”

The judges wrote that Lenz may recover nominal damages “due to an unquantifiable harm” from the Universal Music takedown, although those damages cannot be collected on claims of impairment of free speech rights. The total of the damages, including the recovery of expenses and attorneys’ fees, would be determined at a trial.

A spokeswoman for Universal Music Publishing did not immediately return a request for comment.

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