Intellectual Property Law Blog

Prince vs. the ‘Dancing Baby’: the Evolution of ‘Fair Use’

November 12th, 2015

By Bridget H. Labutta, Esq.Prince vs. the 'Dancing Baby': the Evolution of 'Fair Use'

Your IP attorneys have discovered a video on YouTube of a baby dancing while your – copyrighted – music plays in the background. The legal team quickly dispatches a takedown notice, claiming infringement.

That’s a common practice under the 1998 Digital Millennium Copyright Act (DMCA), as artists, writers, photographers, and other content creators attempt to protect the valuable works they have taken the time, energy and talent to create. A new court ruling involving the musical artist Prince and a dancing baby from Pennsylvania, however, gives copyright holders good reason to hit the pause button before taking that step.

Copyright protection gives a copyright holder control over the protected works, but that control is not absolute. The “fair use” doctrine gives other parties the ability to use copyrighted work without obtaining a license or even permission from the copyright holder, for such applications as criticism or commentary, parody, education, and journalism.

Standards Change as Digital World Grows

What comprises a legitimate fair use exception has evolved along with copyright law, particularly in today’s digital age. Digital sharing of content is fast and easy, as anyone who has shared a photo on Facebook or posted a video to YouTube knows.

As the use of social media, blogs, and other Internet-based applications has grown, such easy sharing has led to many situations that have tested the boundaries of fair use. Courts adjudicating these matters have issued rulings with various, sometimes contradictory, interpretations.

One recent case that has drawn the notice of photographers and artists is that of Cariou v. Prince, in which an artist, Richard Prince, used cut out images from a book published by photographer Patrick Cariou as elements in his own artistic works. After Prince profited handsomely from that work, Cariou successfully sued him for copyright infringement. Prince appealed, however, and a higher court agreed with his contention that he had “transformed” Cariou’s original works into something new. That “transformative” property, the higher court ruled, placed Prince’s use of Cariou’s photographs under fair use protection.

The ‘Dancing Baby’ Takes on Prince

Perhaps the most infamous fair use case, though, pitted a different Prince – the musical artist – against a dancing baby from Pennsylvania, and the recent decision in that case has serious implications for all copyright holders.

In 2007, mother Stephanie Lenz, of Gallitzin, Pennsylvania, did what lots of moms and dads do – recorded a video of her child “dancing” and posted it to YouTube. The grainy, 29-second clip shows the toddler bouncing in time as Prince’s “Let’s Go Crazy” plays in the background.

Prince’s publishers, Universal Music Group, which holds the copyright to that song, took issue. Universal sent a DMCA takedown notice to YouTube, which then removed the video. Backed by the Electronic Frontier Foundation and supported by such giants as Google, Twitter and Tumblr, Lenz sued, and the case quickly became emblematic of the challenge of enforcing the copyrights that provide financial protection for artists in today’s digital sharing economy.

In September 2015, a decision by a three-judge panel raised the stakes for copyright holders. The U.S. Court of Appeals for the Ninth Circuit ruled that Universal Music Group could be liable for damages after it ordered the takedown of the video without properly considering whether the video’s use of copyrighted content was permitted under fair use.

The lesson for copyright holders: If someone is using your copyrighted works without permission, consider the other party’s potential fair use arguments – and document your attempts to do so – before you move against them.

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