Dorsey & Whitney – It’s not every day that SCOTUS is asked to review a case involving a video of a dancing baby.
But that’s what happened late last week when the lawyers for Stephanie Lenz asked the Court to review the 9th Circuit’s decision in Lenz v. Universal Music Corp. In case you’ve been sleeping like a baby (and haven’t had the opportunity to read our prior posts on the case here and here) this dispute centers on the DMCA “take down” notice provisions.
Back in 2007, Ms. Lenz posted a YouTube video of her young toddler dancing to Prince’s “Let’s Go Crazy.” The copyright holder, Universal Music Corp., demanded that YouTube take the video down. Ms. Lenz fired back and ultimately filed suit against Universal, claiming that it lacked a “good faith belief” that the video was infringing as required under the DMCA.
“It might also be a bit of an overstatement to say this has “nationwide” implications at this point given that this is one circuit’s decision.
Last fall the 9th Circuit held, as a matter of first impression, that before sending a DMCA notice, the copyright holder must first assess whether the party who posted the video has a viable “fair use” defense. The Court later modified the ruling, but still made it clear that before a takedown notice is sent, the rights holder must have a “subjective” good faith belief that the use at issue is not a fair one.
Lenz has now asked SCOTUS to cut in, arguing that the 9th Circuit’s ruling raises “a question of national importance.” Why? Because Lenz believes that the “subjective good faith belief” standard insulates a copyright holder from liability no matter how “specious and bizarre” that belief may be. According to Lenz’s petition, “a belief that copyright has been infringed based on information provided by a fortune teller—could pass muster, as long as that belief is sincerely held.”
Is this foreboding just a Dark Fantasy, or should a stop at the Supreme Court be The Last Dance for Lenz? My good faith prediction is that the 9th Circuit’s decision probably still needs a bit of time before the Supreme Court will step into the breach. No other circuit court has decided the issue so there is no “circuit conflict.”
It might also be a bit of an overstatement to say this has “nationwide” implications at this point given that this is one circuit’s decision. Finally, it is not clear how lower courts will interpret this decision as a practical matter. It’s theoretically possible that a lower court could find a copyright holder had a good faith belief that a particular use was infringing, even if the good faith belief was acquired through consultations with the famed selfie-taking monkey, Naruto. But that scenario seems unlikely.
Regardless, we will be watching this case to see to see if Lenz’s lawyers can two-step their way to one last dance.
J. Michael Keyes is an intellectual property attorney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. He has tried several cases in federal courts across the United States.