Dancing Baby Shakes Up Internet Fair Use

In a case that has major ramifications for generators and distributors of online content, the Ninth Circuit has ruled in Lenz v. Universal Music Corp. that copyright holders must consider whether an apparently infringing work qualifies as “fair use” before sending a takedown notice under the Digital Millennium Copyright Act. The failure to do so exposes the copyright owner to possible liability for damages. However, the court found that the fair use assessment does not need to be correct, merely indicative that the copyright holder had subjective good-faith belief that the use was infringing. Lance Koonce, Marshall J. Nelson, and Nicolas A. Jampol with Davis Wright Tremaine LLP break down the case, which focuses on a video of a baby dancing to Prince’s “Let’s Go Crazy” that went viral in 2007. “[U]sers who file lawsuits for improper takedowns will face a heavy evidentiary burden to actually prove a takedown was wrongfully issued,” they write.