In a case that has been going on since 2007, the US Court of Appeals for the 9th Circuit has finally given a ruling. The case involved a YouTube video where a toddler was recorded dancing to a song by Prince. Universal Music Group issued a copyright takedown notice because of the use of the song in the video. The mother of the young child in the video, Stephanie Lenz, began working with a pro bono counsel . The Electronic Frontier Foundation, on her behalf, sued Universal Music Group saying that the takedown practices were in violation of the Digital Millennium Copyright Act.
The opinion of the three-judge panel came to the conclusion that the Universal Music Group’s view of the fair use policy was flawed. In the ruling they pointed out that copyright holders, “must consider the existence of fair use before sending a takedown notice.” They went on to say, “Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.”
This case began because Universal had an employee whose job it was to monitor YouTube daily to see which videos included their artists music and issue takedown notices. The Electronic Frontier Foundation had been looking for a case to use to go against a major music company regarding the DMCA takedowns and this one was ideal.
It is important to note that this is not a complete victory for the EFF. They were hoping that the court would rule that the music company would be held liable for damages over bad-faith takedown notices. The ruling, however, only says that Universal has to face a trial over whether or not it knowingly misrepresented the situation when issuing the notice.
That being said, however, this is clearly a victory for anyone who wants to use copyrighted music. It seems very clear that having music in the background of dancing children, or many other situations, is going to be protected from takedown notices.
Impact on Marketers
While this case is not on a marketing video, we can still learn a lot from the results. First, this will cause entertainment companies to think twice before issuing takedown notices. This is important because there are currently millions of takedown notices sent to Google (YouTube) each year. If companies are hesitant to send these notices it could effectively make it possible for marketers to use music in a variety of ways with little to no risk.
Of course, it is still to early on to see exactly how it is going to all play out. Whenever dealing with these types of legal situations it is expected to have slow movement but this is definitely a victory for those who support being able to have popular music in their videos of any type.
If interested, you can read the full ruling HERE.