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The Dancing Baby Won’t Have a Performance at the Supreme Court

The dancing baby is closer to being a dancing teenager at this point, but his mom’s ongoing lawsuit against Prince’s record label has, at least temporarily, stopped movin’ and groovin’.

On Monday, in addition to ruling in favour of The Slants in their First Amendment case against the US Patent and Trademark Office, the US Supreme Court declined to hear arguments in the decade-old “dancing baby” case.

Way back in 2007, Pennsylvania mom Stephanie Lenz took a cute video of her toddler giggling and bopping up and down while hanging on to a wheeled toy. The whole video lasts less than 30 seconds. In the background, nowhere near the focal point of the happy family video, is playing Prince’s “Let’s Go Crazy.”

Some would say that’s the most appropriate song for this case.

A month or so after Lenz posted the video, she received a takedown notice from Universal Music Group ordering her to remove the video. It was pulled by YouTube but restored a few weeks later. Lenz didn’t feel she had done anything in violation of Prince’s copyright or royalty protections and filed suit against the record label, claiming the video was incorrectly taken down. The official documents say the suit was filed for “mistaken or wrongful denial of access to a posting or publication.”

And so, for the past 10 years, Lenz and Universal have met in court, each securing a few wins along the way.

Lenz’s case was supported by the Electronic Frontier Foundation as a way to protect the ability of people to post videos online under the protection of fair use and free speech.

“Copyright abuse can shut down online artists, political analysts or—as in this case—ordinary families who simply want to share snippets of their day-to-day lives,” says Marcia Hofmann, a staff attorney for EFF. “Universal must stop making groundless infringement claims that trample on fair use and free speech.”

EFF is working with Stanford University’s Fair Use Project to come up with a set of best practices for takedown notices issued under the Digital Millennium Copyright Act, a law passed by the US Congress in 1996 but which many believe needs to be re-examined and updated to reflect current uses laws.

The last significant ruling in this case was in 2015 when the 9th Circuit Court of Appeals, in California, determined that if Universal and others similar situated had to consider “fair use” before a takedown notice could be issued. At the same time, if Universal (or any other label or copyright holder) has a “subjective good faith belief” the video or other content was not an example of fair use, it would not be held liable in court for sending a takedown notice. Questions about the propriety of Universal’s original takedown notice from 2007 would have been examined by the Supreme Court.

Now the EFF and Lenz need to determine what will happen next. In a statement provided to Ars Technica, the organization’s legal director, Corynne McSherry, said she’s disappointed that the case won’t be heard at the Supreme Court but is remanded to a lower court for consideration if EFF chooses to move forward.

“Sadly, the 9th Circuit’s ruling in this case did not go far enough to ensure that copyright holders will be held accountable if they force content to be taken down based on unreasonable charges of infringement, and we had hoped the Court would remedy that. However, the strong precedent that copyright holder must consider fair use before sending DMCA takedown notices stands.”

The court did not release any comment with its denial of the case.

Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

Amber Healy has 521 posts and counting. See all posts by Amber Healy

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