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.
