US Ninth Circuit Rules in Favour of the “Dancing Baby”

On September 14, 2015, the US Ninth Circuit ruled in favour of the ‘“Dancing Baby” in the case of Lenz v Universal Music. The case revolved around whether the owner of a copyright, Universal Music, should have first considered whether or not the use of their copyright was “fair use” before sending the unauthorized user, Lenz, a takedown notice.

Eight years ago, Lenz had posted a viral video on YouTube of her baby dancing to Prince’s “Let’s Go Crazy”. Universal Music, the copyright holder, subsequently sent YouTube a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA) citing copyright infringement. To avoid liability, YouTube notified the user, Lenz, who then responded with a counter-notification, thus leading to the ensuing legal battle. In its ruling, the Ninth Circuit stated that “copyright holders cannot shirk their duty to consider - in good faith and prior to sending a takedown notification - whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law”.

With this decision, copyright holders in the United States will have to first consider fair use before sending takedown notices.  This decision will affect copyright holders who rely on automated means to enforce their copyrights.