Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use

from the oh-really-now? dept

We had just been discussing a lawsuit in South Korea that appeared to be quite similar to the infamous Lenz case, in the US. If you don’t recall, that case involved Universal Music issuing a DMCA takedown after a mother posted a 29-second video of her toddler dancing to the radio where a Prince song was playing. While Universal Music did not contest the counternotice of the woman, the woman (with the help of the EFF) sued Universal, claiming that it violated the DMCA in issuing a takedown on a video that was obviously fair use.

Universal claimed that since fair use is “just a defense” under the law, and not (technically) a “right,” that it had no obligation to consider fair use before issuing a takedown. Thankfully, the judge disagreed. That wasn’t everything, though, as this case has dragged on and on for years since then, as the EFF and Lenz sought to make Universal actually liable for damages for filing a bogus DMCA takedown. Earlier this year, the court ruled that damages were available, but quite limited.

The latest part of the case is that both sides have filed for summary judgment, with Lenz arguing that the takedown violated the law, since Universal did not believe in good faith that the video was infringing (as required by the law). Universal’s motion, on the other hand, makes the argument that the 29-second video is not an obvious case of fair use. It still argues that there’s no requirement to check for fair use first, but says that even if it’s supposed to, this video was not obviously fair use.

Now, before we get into the reasons that Universal gives, it’s worth looking at the video itself, so here you go:

Yeah, that’s the video that Universal claims is not obviously fair use of that music you can barely hear in the background. Seriously. So, let’s take a look at Universal Music’s argument. You can read the full filing here, if you’d like (well, not the full filing, as parts are redacted):
Basically, the argument is that (a) Universal Music really did consider whether or not it was fair use, because they had some poor schlub working for them watch the video twice and decide that it wasn’t fair use because the music is in most of the video and (b) that Lenz and her friends and lawyers did not initially consider it a fair use issue — so if they didn’t think it was a fair use case, then how could Universal Music? Specifically, it mocks the EFF, since the EFF is such a strong believer in fair use for apparently not immediately telling Lenz it was a fair use case. Admittedly, Lenz’s suggestion that the EFF told her it wasn’t fair use certainly doesn’t look good for the “obvious fair use” claim.

From there, though, Universal goes on to make the argument that it did consider it, and it still doesn’t seem to think the video is fair use. But its analysis here is really weak. It claims that this was a “commercial use,” because it was posted on YouTube, a commercial site. But that’s blaming the wrong party. It was not a commercial use for the person actually uploading the video, Ms. Lenz. Universal then argues that the video is not transformative, but again that doesn’t make much sense to me. It’s not as if this video’s purpose is anything like the purpose of the original song. In terms of “the nature of the work,” Universal says that because it’s music, it’s protected — but that’s only a part of the analysis. The video has the song in it, but it’s not “the song.” So it should be the nature of video that’s analyzed, not the nature of the song. And the nature of the video is that it was a silly home video, obviously for personal, non-commercial use. As for “the amount of the work,” again, Universal shifts what it looks at. It says since the song appears in the whole video, then it weighs against fair use. But, again, it’s looking at the wrong thing. Here, the question is the amount of the original work, and in this case it’s 29 seconds of a much longer song (something Universal ignores). Finally, the big one: the commercial impact of the video, much of Universal’s reasoning is redacted, but it appears its argument is that Universal/Prince could sell the right to use the song in videos. That seems pretty weak. No one is going to pay for a song in a video like this.

Just the fact that we need to have a big legal fight over whether or not the video above is fair use is really sad. Any copyright law that doesn’t immediately consider that kind of use fair use is broken. In the meantime, I’m curious if someone at Universal Music could enlighten us to what would be considered fair use in its mind?

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Companies: eff, universal music

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Comments on “Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use”

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57 Comments
The Devil's Coachman (profile) says:

Re: Fair Use

Dear Universal,

As you will become painfully aware in the not too distant future, there is such a thing as fair use, and you will then gain a true appreciation of what the word “painfully” can actually mean. You know nothing of pain now, but you will learn a very deep and lasting lesson soon.

Regards,

The General Public

Rikuo (profile) says:

It was just noise

I’ve known of this case for ages, but never actually took the time to watch the video.
I can barely hear the music. Oh I can hear noise, but the sound quality is so abysmally low, that it doesn’t register in my brain that what I’m hearing is music, much less that my brain can process that it’s a Prince song. So, someone tell me, is the only indicator that it’s a Prince song somewhere in the video description e.g. “Here’s my baby dancing to a Prince song”
So again, someone tell me, is it copyright infringement if the “copy” is of abysmal quality, so bad that you can’t tell its supposed to be the same as the source material?
Did Universel just read the video description? What if the description said “Hot Incest banned porn video”? Neither of the two descriptions “Dancing to Prince” or “Hot Incest” show what I’m seeing. I see a baby walking around, but I can’t tell about the sound I’m hearing.

R. Miles (profile) says:

Objection!

“claiming that it violated the DMCA in issuing a takedown on a video that was obviously fair use.”
Obviously?

What part of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” did Universal miss when ordering the take down notice?

While I’m not in favor of Universal’s action, I’m at a loss why people believe Fair Use is so broad as to cover this video.

The last thing I heard, from a copyright lawyer, was that no use is fair until a judge orders it so.

No statement has even been more true when related to copyright.

Even with the “4 factors” as outlined by Section 107, it is not “obvious”.

ChurchHatesTucker (profile) says:

Re: Objection!

You are correct, sir! I was going to purchase this song, but after hearing this pristine recording of a portion of the song with the attendant baby dancing (how much is he compensated?) I was convinced not to.

Clearly the commercial interests of the plaintiff have been sabotaged by a rouge soccer… er, stroller Mom.

Hulser (profile) says:

Re: Objection!

As I understand it, the “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” line are examples of fair use, not an exclusive list. Here are the four factors…

“The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes”
The dancing baby video is not of a commercial nature. Applicable? Check.

“The nature of the copyrighted work”
The copyrighted work is a song. The dancing baby video is a video which only contains a very garbled version of the song. Applicable? Check.

“The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
Only 29 seconds of the song is used in the video and for most of it, you can’t even really tell what song it is. Applicable? Check.

“The effect of the use upon the potential market for, or value of, the copyrighted work”
If anything, this would increase the market for the song. Applicable? Check.

Also, just to clarify, are you saying that you don’t think it legally satisfies the requirement for fair use or that you don’t think it should?

R. Miles (profile) says:

Re: Re: Objection!

Husler, the checks only apply after the content meets the “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” definition.

No, I don’t believe the video meets the legal definition of fair use and neither did the copyright lawyers of Universal, hence the take down notice.

This young lady may be opening up a can of worms she’s not prepared to deal with.

As for your other post, I most certainly see a problem with this, and that’s the issue.

Fair use is not “obvious” in this regard, and this article stated it was. That’s simply not true and no amount of word-twisting is going to change this.

I hope the young woman wins, just for the record. 😉 If she does, maybe the judge will state why it’s fair use.

Though even is s/he does, it still doesn’t set a precedence in copyright disputes.

Hulser (profile) says:

Re: Re: Re: Objection!

I read a case recently where it was argued that since the defendant was able to circumvent the protection, it wasn’t “effective.”

Of course you’re under no obligation to do so, but can you link to a citation of this? I’ve done some searches and can’t find anything that makes this particular point.

Fair use is not “obvious” in this regard, and this article stated it was. That’s simply not true and no amount of word-twisting is going to change this.

Well, to be fair, I think that the label of “obvious” has a lot to do with whether the four factors are meant to be applied independently of the “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” line or as additional qualifiers thereof.

Perhaps a better question would be is this a fair use rather than does it qualify legally as “fair use”? One of the problems with this situation is that, in my estimation, a huge majority of people would say it is a fair use.

Anonymous Coward says:

Re: Re: Re: Objection!

I disagree. You left off a couple words there at the beginning:

“such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —’

The words “such as” leave it wide open for other fair uses that are not explicity stated.

R. Miles (profile) says:

Re: Re: Re:2 Objection!

I disagree. You left off a couple words there at the beginning:
The “Such as” actually defends my point in that the use is not obvious and, as we can see, will now take a judge to decide.

I’m not trying to be a troll here, but offer my opinion on the matter in regard to copyright.

If anyone here feels the use of another’s works is “fair use”, by all means, knock yourself out.

However, don’t be too surprised if you find yourself in this same situation.

The bottom line here is: make your own stuff. Don’t use anyone else’s because it’s just not worth it anymore, even if the “owners” say it’s okay.

You’d be foolish not to anymore.

Hulser (profile) says:

Re: Re: Re:3 Objection!

The “Such as” actually defends my point in that the use is not obvious and, as we can see, will now take a judge to decide.

Hold on a second. Regardless of the overall point you’re trying to make, you appear to be backtracking after being caught out in a contradiction. My original post started off like this…

As I understand it, the “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” line are examples of fair use, not an exclusive list.

You replied with this…

Husler, the checks only apply after the content meets the “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” definition.

What you’re basically saying in the above reply is “Yes, I know that I was wrong in saying that the ‘criticism…’ line only refers to examples and that the four criteria really are independent of the four criteria, but that’s not important because my overall point is…”

I should have looked up the actual wording myself at the time of my post because if I did, I would have seen that your post was indeed not acccurate.

Hulser (profile) says:

Re: Objection!

The last thing I heard, from a copyright lawyer, was that no use is fair until a judge orders it so.

And you don’t see a problem with this? I think I know what your lawyer friend would say, but are you really suggesting that it’s a good thing that we need to involve copyright lawyers in something that almost every non-lawyer on the planet would say is a fair use of copyrighted material?

Richard (profile) says:

Re: Objection!

Well this seems to be one case where the UK fair dealing provisions are more sensible – this is covered by
“incidental inclusion”
“# Typical free uses of work include:

* Inclusion for the purpose of news reporting.
* Incidental inclusion.
* National laws typically allow limited private and educational use.

# What is incidental inclusion?

This is where part of a work is unintentionally included. A typical examples of this would be a case where holiday movie inadvertently captured part of a copyright work, such as some background music, or a poster that just happened to on a wall in the background.”

Richard (profile) says:

Re: Objection!

The last thing I heard, from a copyright lawyer, was that no use is fair until a judge orders it so.

No statement has even been more true when related to copyright.

Warning – Lawyer disconnect with real world ALERT!

Once something goes to court of course even obvious things go on hold until the court decides – BUT – in order for the rest of us to even function most of the time we have to make reasonable assumptions about such things.

The Infamous Joe (profile) says:

Re: Objection!

The last thing I heard, from a copyright lawyer, was that no use is fair until a judge orders it so.

I have heard the same thing, hence why they say it is a defense and not a right. My question (open to everyone) is thus:

If it takes a judge to determine if a use is “fair use”, then doesn’t that mean it takes a judge to determine that it’s *not* fair use? Before I know if my action carries a $750,000 penalty I have to carry out that action? How does *anyone* support this law?

Why isn’t there a stronger punishment for something being taken down when it was found to be fair use? As it is, under the law, this woman can be fined $750,000 for this. If it is determined to be fair use, is Universal fined for being wrong, too?

The Devil's Coachman (profile) says:

Re: Re: Re: Objection!

These companies will never, ever be fined for anything they do. They own the government at all levels, and all court judgements will be bought and paid for. What is needed here are massive fires at the next board meetings of all of them, making sure that nobody survives, and if they persist in their idiocy, then more fires are called for. A couple gallons of gasoline and a cigarette lighter are the only costs. That might slow them down. Then again, they are morons, so probably not. But still, they all need to die in a fire.

Anonymous Coward says:

Over three years later, Universal Music’s neverending struggle to keep one woman from uploading a video of her toddler to YouTube continues. Every once in a while, the people involved look at themselves in the mirror and ask, “Wait, what the heck? Why are we even doing this?”, but they quickly shrug it off. The fight must go on!

The Devil's Coachman (profile) says:

Re: Actually, they can't see themselves in the mirror at all.

How is this possible? Simple, they are actually vampires, looking to suck the last drop of blood out of every last human being on the planet. Thus, human beings have no choice but to kill them all, by driving wooden stakes through their coal black hearts. Or shooting them with silver bullets. Or cutting off their heads with silver swords. Lots of ways to deal with them, but all of them involve killing them, or they will return, and it will never end.

Andrew F (profile) says:

Nature of the Copyrighted Work

Your “nature of the copyrighted work” is a little off Mike. That factor actually is about the original, not how its used in the allegedly infringing work. Courts are supposed to examine how that work is used under the “purpose and character” factor.

The “nature of the copyrighted work” factor has come into play in at least two circumstances:

(1) When the copyrighted work is mostly factual in nature, this weighs in favor of fair use. The idea is that you can’t copyright facts, so any “creative” presentation of those facts gets a “thin” copyright at best.

(2) When the copyrighted work is unpublished, this weighs against fair use. The idea here is that there’s some special harm when something is published before the author deems it ready for publication. I could see circumstances where there is reversed though (e.g. the author has no intention of ever publishing, or is dead).

That said, this factor isn’t a huge deal these days. If the other three go one way, most courts would probably say its fair use. Not sure if it’s “obvious”, but it’s at least highly likely.

average_joe says:

Re: Nature of the Copyrighted Work

Good point. And “commercial” doesn’t necessarily mean that the person makes money off of it.

I think people need to read up on how courts apply the four factors before they go trying to apply them. It’s a little more complicated than people are making it.

As far as this use of Prince’s song goes… I’m inclined to agree it’s fair use, but I don’t think it’s obviously so.

Hulser (profile) says:

Re: Re: Nature of the Copyrighted Work

And “commercial” doesn’t necessarily mean that the person makes money off of it.

So, are you splitting hairs and saying that the intent of the use has to be to make money, not that any money is actually made? Because I’m not sure how else you could define commercial use but in one of these two ways. The woman who took this video did not do so with the intent to make money. Nor do I think that she uploaded the video to YouTube with the intent to make money. And I certainly don’t think that she actually made any money from this video. So, how is this not obviously non-commercial?

average_joe says:

Re: Re: Re: Nature of the Copyrighted Work

Not exactly. Commercial use can mean more than trying to make money off of it. For example, in the Henley v. Devore case, the candidate’s use of Henley’s song was commercial even though he wasn’t trying to make any money off of it. He was trying to gain the support of voters, and that made it commercial.

My point is that those factors may not mean what people think they mean. You should research and see how courts interpret and apply the factors before you try and do it yourself.

Richard (profile) says:

Re: Re: Re:4 Nature of the Copyrighted Work

Sorry – I don’t buy that – because on that definition everything you do is commercial – including eating, breathing, playing with your cat and writing comments on techdirt.

Commercial use means use in the course of a business or trade and democracy is not supposed to be about business.

The reason commercial use definitions are sometimes extended to include activities that don’t make a direct financial reward is to prevent sneaky lawyers and accountants like you from disguising commercial activity as something else.

To qualify as commercial use the gain must be either direct commercial gain or something that can be regarded as a direct substitute for it – not just anything that benefits you.

Elected office is supposed to be about serving the public – not enriching yourself. Had you forgotten that point?

I’m really surprised that you don’t see this as a problem.

vivaelamor (profile) says:

Re: Re: Re:6 Nature of the Copyrighted Work

“It’s not really a question of whether or not you buy it. I’m simply stating the fact of how these things are interpreted.”

I’d be interested in some evidence to back up such a broad interpretation. ‘something to gain’ does pretty much include every conceivable scenario. Of course, if you want to claim that there is no such thing as non commercial use then go ahead. Otherwise I would suggest clarifying your statement.

average_joe says:

Re: Re: Re:7 Nature of the Copyrighted Work

You can start with Henley v. DeVore: http://www.scribd.com/doc/33049984/Order-on-Motion-for-Summary-Judgment-in-Henley-v-DeVore

There is, of course, noncommercial use. My point is that the difference between commercial and noncommercial may not be what people think it is.

Before people go applying the four factors, they should learn how the factors are applied.

Richard (profile) says:

Re: Re: Re:8 Nature of the Copyrighted Work

My point is that the difference between commercial and noncommercial may not be what people think it is.

and my point is that the fact that political campaigning is regarded as commercial use says somethign about the current US attitude to democracy.

I’m not disagreeing with you about how the courts actually interpret commercial use. Rather I’m saying that the fact that the courts ome to such a conclusion is an indictment against current US legal and political culture.

Please raise you head from your legal books for a minute and look at the bigger picture.

vivaelamor (profile) says:

Re: Re: Re:8 Nature of the Copyrighted Work

“You can start with Henley v. DeVore”

It would seem the decision in that case was based on the notion that there did not have to be direct monetary gain, but all the examples in the case were about linking the infringement to monetary gain. You had stated that the requirement was for any gain, monetary or otherwise, which is not backed up by that case. Going by your statement, had someone directly gained votes for no purpose other than to have more votes then that would be considered commercial.

In this case the defendant quite clearly made no money but did possibly gain something on personal level, such as pride, which by your words would be commercial use. You can call me out for nitpicking but you do keep telling us how things supposedly are, so I expect you to at least make it plain what you mean.

Hulser (profile) says:

Re: Re: Re:2 Nature of the Copyrighted Work

Commercial use can mean more than trying to make money off of it.

As others have pointed out, this seems to indicate a fundamental disconnect between what the legal definition and reality. I have no reason to doubt that Henley v. Devore indicates that gaining the support of voters is commercial use. There’s just one small problem. It isn’t!

Anonymous Coward says:

Universal Music definition of 'Fair Use'

We take your stuff (artists, actors, public domain, etc and sell it, without paying you anything (or a very small % of what we actually make off it), that’s fair use…..

Someone tries to use something we made out of your stuff in their own product, that’s copyright infringement, not fair use…

Seems simple from their perspective. Typical, “Do as we say, not as we do” corporate attitude.

John Bickerton (profile) says:

YouTube's broadcasting of the video is the issue

The video itself is obviously fair use. Posting it to YouTube is what makes it an issue. Now it becomes an asset of YouTube. YouTube is a commercial enterprise, that makes money from streaming videos. Traditionally commercial broadcasters have had to pay royalties to use music aired on their channels. Everytime someone sang Happy Birthday on Johnny Carson, the owner of that copyright got paid. Was that fair use? It was probably a spontaneous thing however the argument would be that it contributed to the show which was a (highly successful) commercial endeavor.

Universal going after the creator of the video is perhaps unfair but on the other hand Google/YouTube have been absolutely hands-off regarding copyright infringement on their channels and have made it the responsibility of the copyright holder to police the usage of their copyrights. So the copyright holder really has so recourse except to issue a DMCA takedown to the poster. It’s not in YouTube’s interest to police copyright infringement so they don’t.

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