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Lenz v. Universal Music Corp.

United States Court of Appeals for the Ninth Circuit

July 7, 2015, Argued and Submitted, San Francisco, California; March 17, 2016, Amended; September 14, 2015, Filed

Nos. 13-16106, 13-16107

Opinion

 [***1159]   [*1148]  AMENDED OPINION

OPINION

TALLMAN, Circuit Judge:

Stephanie Lenz filed suit under 17 U.S.C. § 512(f)—part of the Digital Millennium Copyright Act ("DMCA")—against Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group (collectively "Universal"). She alleges Universal misrepresented in a takedown notification that her 29-second home video (the "video") constituted an infringing use of a portion of a composition by the Artist known as Prince, which Universal insists was unauthorized by the law. Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial [**5]  takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that ] the statute requires copyright holders to consider fair use before sending a takedown notification, and that in this case, there is a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. We  [*1149]  affirm the denial of the parties' cross-motions for summary judgment.

Founded in May 2005, YouTube (now owned by Google) operates a website that hosts user-generated content. About YouTube, YouTube.com, https://www. youtube.com/yt/about/ (last visited September 4, 2015). Users upload videos directly to the website. Id. On February 7, 2007, Lenz uploaded to YouTube a 29-second home video of her two young children in the family kitchen dancing to the song Let's Go Crazy by Prince.2 Available at https://www.youtube.com/ watch?v=N1Kf JHFWlhQ (last visited September 4, 2015). She titled the video "'Let's Go Crazy' #1." About four seconds into the video, Lenz asks her thirteen month-old son "what do you think of the music?" after which he bobs up and down while holding a push toy.

At the time Lenz posted the video, Universal was Prince's publishing administrator responsible for enforcing his copyrights. To accomplish this objective with respect to YouTube, Robert Allen, Universal's head of business affairs, assigned Sean Johnson, an assistant in the legal department, to monitor YouTube on a daily basis. Johnson searched YouTube for Prince's songs and reviewed the video postings returned by his online search query. When reviewing such videos, he evaluated whether they "embodied a Prince composition" by making "significant use of . . . the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the video." According to Allen, "[t]he general guidelines are that . . . we review the video to ensure that the composition was the focus and if it was we then notify YouTube that the video should be removed."

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815 F.3d 1145 *; 2016 U.S. App. LEXIS 5026 **; 118 U.S.P.Q.2D (BNA) 1157 ***

STEPHANIE LENZ, Plaintiff-Appellee/Cross-Appellant, v. UNIVERSAL MUSIC CORP.; UNIVERSAL MUSIC PUBLISHING INC.; UNIVERSAL MUSIC PUBLISHING GROUP INC., Defendants-Appellants/Cross-Appellees.

Subsequent History: Later proceeding at Lenz v. Universal Music Corp., 137 S. Ct. 416, 196 L. Ed. 2d 290, 2016 U.S. LEXIS 6577 (U.S., Oct. 31, 2016)

US Supreme Court certiorari denied by Lenz v. Universal Music Corp., 137 S. Ct. 2263, 198 L. Ed. 2d 698, 2017 U.S. LEXIS 4035 (U.S., June 19, 2017)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 5:07-cv-03783-JF. Jeremy D. Fogel, District Judge, Presiding.

Lenz v. Universal Music Corp., 801 F.3d 1126, 2015 U.S. App. LEXIS 16308 (9th Cir. Cal., Sept. 14, 2015)Lenz v. Universal Music Corp., 2013 U.S. Dist. LEXIS 9799 (N.D. Cal., Jan. 24, 2013)

CORE TERMS

fair use, video, infringing, takedown, misrepresentation, holder, good faith belief, YouTube, notification, damages, affirmative defense, district court, summary judgment, song, nominal damages, copyrighted work, copyright owner, blindness, knowingly, sending, notice, copyright infringement, service provider, misrepresented, composition, factors, willful, user, good faith, counter-notification

Computer & Internet Law, Copyright Protection, Digital Millennium Copyright Act, Remedies, Copyright Law, Civil Infringement Actions, Online Infringement, Defenses, Copyright Infringement Actions, Defenses, Fair Use, Fair Use Determination, Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Summary Judgment, Motions for Summary Judgment, Cross Motions, Appellate Jurisdiction, Interlocutory Orders, Safe Harbor Provisions, Prohibited Conduct, Determinations, Governments, Legislation, Interpretation, Fair Use, Fair Use Determination, Factors, Responses, Defenses, Demurrers & Objections, Affirmative Defenses, Evidence, Burdens of Proof, Allocation, Courts, Judicial Precedent, Dicta, Judicial Precedent, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Torts, Defamation, Remedies, Damages, Damages, Types of Damages, Nominal Damages, Types of Damages

Computer & Internet Law, Copyright Protection, Digital Millennium Copyright Act, Remedies, Copyright Law, Civil Infringement Actions, Online Infringement, Defenses, Copyright Infringement Actions, Defenses, Fair Use, Fair Use Determination, Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Summary Judgment, Motions for Summary Judgment, Cross Motions, Appellate Jurisdiction, Interlocutory Orders, Safe Harbor Provisions, Prohibited Conduct, Determinations, Governments, Legislation, Interpretation, Fair Use, Fair Use Determination, Factors, Responses, Defenses, Demurrers & Objections, Affirmative Defenses, Evidence, Burdens of Proof, Allocation, Courts, Judicial Precedent, Dicta, Judicial Precedent, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Torts, Defamation, Remedies, Damages, Damages, Types of Damages, Nominal Damages, Types of Damages