In a case of first impression and a victory for “dancing babies” everywhere, the U.S. Court of Appeals for the Ninth Circuit recently held in Lenz v. Universal Music Corp.¹ that in order to comply with the “notice and takedown” provisions of the Digital Millennium Copyright Act (DMCA), the claimant must consider the issue of fair use before serving a notice of alleged infringement.

In 2007, Stephanie Lenz, created a 29-second home video featuring her infant son “dancing” to “Let's Go Crazy,” a hit song by the recording artist known as Prince, and uploaded it to YouTube. Eight years later, after a roller coaster ride of notices and counter-notices under the DMCA, a declaratory judgment action filed by Lenz, and appeals and cross appeals, Baby Lenz dances on. Universal, on the other hand, no doubt regrets having stirred the Lenz family nest by claiming infringement in the context of a spontaneous and fleeting family video comparable to many millions of videotaped activities conducted in hearth and home throughout the United States.

Notice and Takedown

In 1998, Congress enacted the DMCA to address a number of issues arising from the use of copyrighted works on the Internet.² Title II of the DMCA, named the Online Copyright Infringement Liability Limitation Act (OCILLA), amended the Copyright Act by adding a new section (§512) establishing procedures for copyright holders to notify service providers, such as YouTube or Google, of a claim that particular material posted online infringes their copyrights. The heart of the OCILLA is contained in §512(c), titled “Information Residing on Systems or Networks at Direction of Users.”