EFF Sues Universal Music Over Yanked Baby Dancing Video

The Electronic Frontier Foundation is defending a Pennsylvania mother whose YouTube video of her daughter dancing in her kitchen to a Prince song during the last Super Bowl halftime show, was yanked in response to a fair use complaint. Ms. Stephanie Lenz is suing Universal Music Group, with EFF's assistance, demanding reparations.

The basis of Lenz' suit, filed yesterday in US District Court for Northern California, is that her 29-second portrayal of her daughter dancing to Prince's "Let's Go Crazy" constituted "a self-evident non-infringing fair use under 17 U.S.C. [section] 107."

At stake are the potentially thousands of videos showing any number or manner of family members, large and small, including pets, who happen to be dancing to music that's been copyrighted. Last June 4, UMG protested to YouTube that the video's content infringed upon its copyright. As per its policy, it removed the video without question, and then informed Lenz it did so on June 6.

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As the suit claims, Lenz then sent YouTube a counter-notification insisting the video be reinstated, though has yet to receive a response.

As US law explains, "fair use" constitutes those exceptions to copyright law where copying, in whole or in part, is permissible. Many scholars know the following language by heart: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include...the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."

That's one of four factors, the second of which is the nature of the copyrighted work itself, the third being the extent to which the work was excerpted (in this instance, less than half a minute), and the fourth the impact the excerpt would have on the market - in this case, whether seeing a little girl dancing to Prince would provoke people not to buy Prince music.

But that first factor is a significant test, because while Ms. Lenz evidently had no interest in profiting from her family video, she may not have intended it to be educational or academic - for teaching little girls to dance.

Although UMG has not issued a statement about this affair, it's foreseeable that it could actually use this "first factor test" in its defense. In which case, the academic or educational value of freely shared videos may need to be considered -- if UMG prevails -- in determining whether excerpts of copyrighted content they happen to contain can be considered "fair use."

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