Rights Holders Must Consider Fair Use for DMCA Takedown

The “good faith belief” standard for issuing a DMCA takedown notice requires copyright holders to consider whether the use of a copyrighted work falls within fair use exceptions to the Copyright Act (Lenz v. Universal Music Corp., N.D. Cal., No. 07-3783).


In a matter of first impression, Judge Jeremy Fogel held that, though an extensive investigation is not required, a copyright holder must have a subjective belief that a use of a copyrighted work is infringing and does not fall within fair use exceptions in order to issue a DMCA takedown notice in good faith. He also stated that “Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that ‘the fair use of a copyrighted work… is not an infringement of copyright[,]’ ” at 17 U.S.C. § 107.  The plaintiff, Stephanie Lenz, videotaped her young children dancing in her family’s kitchen. The song “Let’s Go Crazy” by the artist known as Prince played in the background. The video is twenty-nine seconds in length.


The record company failed to consider fair use, and issued a takedown notice solely to appease an artist whose song played in the background of a video clip uploaded to YouTube.  These allegations were sufficient to state a DMCA misrepresentation claim against the label, the court held.



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