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Intellectual Property, Media & Entertainment

Court clears way for trial in copyright suit over dancing baby video

Canadian Press THE CANADIAN PRESS

SAN FRANCISCO — A federal appeals court Monday cleared the way for a trial in a copyright lawsuit over a YouTube video showing a baby dancing to the Prince song "Let's Go Crazy.''

The lawsuit was filed by the baby's mother, Stephanie Lenz, after Universal Music sent a notice to YouTube demanding the video be taken down for violating the song's copyright.

The 9th U.S. Circuit Court of Appeals said copyright holders can't demand videos and other content that uses their material be taken down without determining whether they constitute "fair use.''

Fair use allows segments of copyrighted works to be used for purposes of criticism, comment, research or in other limited circumstances without a license from the copyright holder.

Lenz said the video is fair use, and Universal had failed to consider that before ordering the video taken down.

Universal said it considered fair use and still determined the use of Prince's song in the video was unauthorized.

The 9th Circuit said a jury would have to decide whether Universal had done enough to form a good faith belief that the video violated fair use. The court agreed with a lower court that rejected Universal's and Lenz's motions to grant pre-trial judgments in their favour.

The Electronic Frontier Foundation (EFF) represented Lenz and said Monday's ruling had ramifications beyond her case.

"Today's ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,'' EFF Legal Director Corynne McSherry said in a statement.

Toronto intellectual property and entertainment lawyer Bill Northcote tells AdvocateDaily.com this case is not surprising given U.S. law, and adds that the Canadian Copyright Act includes parody and satire within the definition of fair use.

Northcote, partner with Shibley Righton LLP, tells the online legal publication this case would play out differently in Canada.

“In Canada, we have an exception to copyright infringement where an individual uses an existing work (in this case the song ‘Let’s go Crazy’), which has been made available to the public if: (a) the use of the new work is solely for non-commercial purposes; (b) the source of the original work is mentioned if reasonable in the circumstances; (c) the individual had reasonable grounds to believe that the existing work was not infringing copyright; and (d) the use of the new work does not have a substantial adverse effect, financial or otherwise on the exploitation of the existing work (i.e. the song).”

He notes the EFF’s interpretation is a reflection of the U.S. approach to free speech that is typically not a significant legal issue in Canada.

Universal Music did not immediately have any comment.

© 2015 The Canadian Press

— With files from AdvocateDaily.com

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