Thursday 9 July 2015

Prince and the Toddler - a universal case of forgotten fair use?

Prince: the 1988 Lovesexy Album
Cast your minds back to 2007 and you might remember that Prince (or even 'The Artist Formerly Known as Prince')(or 'Squiggle' being more unkind)(or Prince Roger Nelson, the 58 year old rock star) persuaded his publisher, Univeral Music, to take down a slighly blurry user generated video on YouTube of a toddler dancing to a snippet from his song (and recording) "Let's Go Crazy". The mum who uploaded the video, Stephanie Lenz, was not amused. 

In fact Prince had publicly said in a September 2007 statement that he intended to "reclaim his art on the internet".

Lenz was put on notice that her use of Prince's music violated the U.S. Digital Millennium Copyright Act, and that if she violated it again, she could lose her YouTube account and any videos she'd uploaded to it.

Now the case has reached the Ninth Circuit Court of Appeals in a case that has all the trappings of the a PR fiasco for the Purple One: "The video bears all the hallmarks of a family home movie," court documents said. "[I]t is somewhat blurry, the sound quality is poor, it was filmed with an ordinary digital video camera, and it focuses on documenting [Lenz's son] Holden's 'dance moves' against a background of normal household activity, commotion and laughter." The entire "performance" lasted 29 seconds, with "Let's Go Crazy" heard for about 20 of them, the documents state. Lenz posted the video on YouTube to share it with family and friends, particularly her mother (Holden's grand mother)  in California.

Following the procedures set out in the DMCA, Lenz requested that YouTube repost the video, which was called "Let's Go Crazy #1," and she sued Universal Music, arguing that entertainment company misrepresented the basis for its takedown request, saying the Universal had clearly not considered fair use, suggesting that her "use of the Prince song 'Let's Go Crazy' is a self-evident non-infringing fair use" and "(T)he Holden Dance Video non-commercially transforms the song into partially obscured background music for a family video about a toddler just learning to dance, uses only a small, nonsubstantial portion of the original work, and does not substitute for the work or harm any market for the work". Coincidentially the use of the word 'transforms' brings to mind yet another Prince - Richard Prince - the 'appropriation artist' who has been on the recieving end of a number of lawsuits for his 'transformative art - and a fascinating look at fair use by the U.S. Court of Appeals for the Second Circuit  (see Cariou v Prince).

In 2012 in the San Jose Federal Court, U.S. District Judge Jeremy Fogel refused to dismiss the case - or hand Lenz a victory - without a trial and considered that Lenz might persuade a jury in her claims that Universal showed willful blindness to the possibility of fair use, and that fair use was self-evident. The Judge also considered Universal's position,saying that equally they could explain their position to a jury and explain that there was no bad faith - and Universal "lacked the subjective intent to misrepresent the reasons it asked YouTube to take down the video."

Universal appealed and Lenz cross appealed to the Ninth Circuit. In brief, it's not been a great case for Universal and the Purple One so far - but it's not over yet.  U.S. Circuit Judge Milan Smith said the concept of fair use is an integral part of the language of the DMCA, roundly criticising the music company saying: "I struggle with how anyone looking at this from Universal's perspective would doubt that little children playing and dancing around to music by the artist formerly known as Prince could view it as anything other than a fair use." U.S. Circuit Judge Richard Tallman looked at the arguments put forward by Lenz's lawyer (Corynne McSherry, of the Electronic Frontier Foundation) who had suggested that under the DMCA, Universal needed to come to a legal conclusion about fair use before it issued a takedown notice. Judge Tallman said the court was struggling with whether the video was fair use - although McSherry's point was that whether or not the use was fair use - Universal hadnt even considered this before issuing a takedown notice.
The case continues: Judge Tallman adjourned with a warning that a ruling may take a while, and that the court would "puzzle" over the issues.

Cariou v Prince  11-1197-cv (2d Cir. April 25, 2013)

Lenz v. Universal Music Corp

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