Universal Defends 'Dancing Baby' Takedown Demand

In June of 2007, Universal Music demanded that YouTube remove a 29-second clip of a toddler dancing while Prince's “Let's Go Crazy” played in the background.

Universal said at the time that the clip infringed copyright. The dancing baby's mother, Stephanie Lenz, who uploaded the video, said it was protected by fair use principles. Google eventually agreed and restored the item.

Those events, which played out over a six-week period, have resulted in an epic legal battle between Lenz, who is represented by digital rights advocates, and Universal. Lenz and her supporters say that the takedown notice was obviously bogus, and that she is now entitled to damages. That's because the Digital Millennium Copyright Act imposes liability on anyone who knowingly sends a Web site an improper takedown notice.

But Universal says it didn't knowingly send a false takedown request. The company adds that it need not make decisions about fair use before complaining about clips.

This week, the entertainment company publicly filed a new round of papers with the 9th Circuit Court of Appeals, which is considering the issue. “Lenz paints her case as one of flagrant abuse of the DMCA's notice-and-takedown procedures. It is anything but that,” Universal argues.

The company asserts that the sequence of events -- takedown notice, followed by Lenz's complaint and the clip's restoration -- “worked precisely as intended.”

Universal adds: “Lenz had her posting restored expeditiously and without incurring any damages.”

The music company also argues that copyright holders such as itself aren't in a position to determine whether clips are protected by fair use, given that they don't have all the information about the “purpose and character of the use” -- which is key to fair use determinations. “If copyright owners are required to analyze others’ incorporation of their works and make the determination as to whether that use is fair, the users who are not a part of that judgment process will almost always have relevant information about the intent underlying the use that the copyright owner lacks,” the company argues.

The dispute has drawn the attention of a wide array of organizations. Google, Twitter, Tumblr and Automattic (which owns WordPress.com) recently filed a friend-of-the-court brief backing Lenz, while the Motion Picture Association of America and Recording Industry Association of America are urging the court to side with Universal.

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3 comments about "Universal Defends 'Dancing Baby' Takedown Demand".
  1. Grant Bergman from SurveyConcierge.com • GrantBergman.com , February 7, 2014 at 7:44 p.m.
    No matter what technical legal arguments Universal may spew, they come across here as bullies who hate their consumer audience in the process. I don't think it's either good or wise legal practice, but I'm SURE it's bad marketing and public relations.
  2. Pete Austin from Triggered Messaging , February 9, 2014 at 6:58 a.m.
    I agree that this case has been a big marketing loss for Universal. Hopefully, next time they would settle any similar situation at the very beginning by backing off, apologizing and offering some free merchandise? But now that this case has gone all the way to appeal, it's going to keep being mentioned for years. Here's more: http://www.copyhype.com/2013/12/on-dancing-babies-lenz-v-universal-music-goes-to-the-9th-circuit/
  3. Paul Robinson from Viridian Development Corporation , March 12, 2014 at 9:11 p.m.
    In view of its last loss in the Betamax case (Sony v. Universal Studios) which created the entire home entertainment industry of prerecorded tapes and later DVDs, Universal's claim it didn't know or doesn't know when something is fair use is specious. A mere short clip (of less than 30 seconds) accidentally in a non-profit video (the mother was not making money) is clearly fair use and they should have known this. They deserve to be assessed damages because of the "chilling effect" that bogus takedown notices can inspire. This would serve to punish them and warn other content providers that you can't just make perjured claims and get away Scott free. (A claim of infringement in a takedown notice has to be under penalty of perjury under the DMCA.) If there's no penalty for doing this, it encourages copyright holders to engage in reckless behavior.