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Business News Digital Labels & Publishers Legal
US Supreme Court seeks government viewpoint on dancing baby case
By Chris Cooke | Published on Tuesday 1 November 2016
Prince may be dead, but the dancing baby case that features his 1984 hit ‘Let’s Go Crazy’ continues to rumble on. The US Supreme Court is currently considering whether to review the case, which centres on the obligations of rights owners when issuing takedown notices against sites like YouTube. And this week the court asked the US Solicitor General for his opinion on the whole matter, which possibly suggests they might take the case on.
As previously reported, this is the famous case where a woman called Stephanie Lenz posted a video of her child dancing to the Prince track onto YouTube in 2007, which Universal Music Publishing then subsequently had taken down on copyright grounds using the Digital Millennium Copyright Act’s takedown provisions. But Lenz argued that the video was ‘fair use’ under US law, and then – with support from the Electronic Frontier Foundation – sued Universal for abuse of the DMCA.
The case asked the question of whether or not rights owners should consider if an unlicensed used of their music is covered by the ‘fair use’ principle under American copyright law before issuing a DMCA takedown.
The dispute spent years going through the motions, before the Ninth Circuit Court Of Appeals ruled last year. It said that yes, rights owners must indeed consider fair use rules before issuing a takedown notice. So, success for Lenz. Except the appeal judges then said that this consideration need not be too rigorous, and providing that the label genuinely doesn’t think fair use applies, well, that’s alright then. So, success for Universal, sort of.
Though the major was less happy on the appeal court’s judgement that if Lenz pushed for damages over this whole matter, she didn’t first have to prove “actual monetary loss”, something the music publisher wanted judges to insist on in order to reduce the chances of it ever having to pay the dancing baby’s mother any money.
Both sides subsequently referred the matter to the Supreme Court. On the potential damages front, the top court has now said it won’t review Universal’s ongoing arguments. But on the matter of quite how much consideration a rights owner must actually give on the fair use point before issuing a takedown, Supreme Court judges might yet review the Ninth Circuit’s judgement.
To that end, it yesterday invited the aforementioned Solicitor General in the US Department Of Justice for his opinion on this particular element of the whole safe harbour and takedown procedure set out in the Digital Millennium Copyright Act. Although the Supreme Court could as yet refuse to consider the entire case, Billboard reckons the fact it is consulting the DoJ makes it a little more likely that it might take on the dispute.
