FAIR USE AND DANCING BABIES: THE U.S. DISTRICT COURT WEIGHS IN

A dancing baby has laid the groundwork for further examination of "Fair Use."

Today The U.S. Court of Appeals for the 9th Circuit handed down a decision in Lenz v. Universal Music, a case that has been going on since 2007, originating from a takedown notice issued to YouTube user Stephanie Lenz by UMG. Lenz had posted a 29-second video of her toddler dancing to Prince's "Let's Go Crazy," but when she got the notice, issued a counter-suit that argued the music was fair use and got her video back on YouTube. Then, after acquiring pro bono counsel from the Electronic Frontier Foundation—Lenz sued Universal for issuing a frivolous takedown.

The case didn't hinge on whether the Prince video counted as fair use, but what role fair use plays in copyright law. The three-judge panel ruled today that copyright holders "must consider the existence of fair use before sending a takedown notification." Further, "Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses."

You'll find the entire text of the ruling here.

To win at trial, Universal doesn't have to prove that the video wasn't fair use. It just has to show that it considered fair use before sending the notice.

Whether the video could now be a Tidal exclusive remains uncertain.