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ARTICLE · 22 SEPTEMBER 2015

Ninth Circuit Rules That Copyright Owners Must Consider Fair Use Before Sending DMCA Takedown Notifications

Finnegan, Henderson, Farabow, Garrett & Dunner LLP
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On September 14, 2015, in what has become known as the "dancing baby case," the Ninth Circuit held that copyright holders must consider fair use before sending a DMCA takedown notification.

United StatesIntellectual Property
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
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On September 14, 2015, in what has become known as the "dancing baby case," the Ninth Circuit held that copyright holders must consider fair use before sending a DMCA takedown notification.  If they do not, they can be liable for at least nominal damages under 17 U.S.C. §512(f), which states: "[a]ny person who knowingly materially misrepresents under this section . . . that material or activity is infringing . . . shall be liable for damages . . . ."

Plaintiff Stephanie Lenz sued Universal Music and related defendants after they sent a DMCA takedown notice to YouTube requesting the removal of a 29-second home video that Ms. Lenz posted of her two young children dancing to Prince's Let's Go Crazy.   Section 512(c)(3)(A) of the Copyright Act requires a takedown notification to state that the complaining party has "a good faith belief that the use of the material . . . is not authorized by . . . the law."  When Universal reviewed the video to determine if it infringed L

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