Mom Sues Music Company Over Baby Video Removal

penguin_dance writes "A Pennsylvania mom is fighting back, suing Universal Music Publishing Group for having a home movie taken down off of YouTube. The movie, featuring her 18-month old bouncing to Prince's song, 'Let's Go Crazy,' was cited for removal by the Group for copyright infringement. Mom Stephanie Lenz was first afraid they'd come after her — then she got angry. She got YouTube to put the video back up, she's enlisted the help of the Electronic Frontier Foundation, and she's filed a civil lawsuit (pdf). 'I thought even though I didn't do anything wrong that they might want to file some kind of suit against me, take my house, come after me. And I didn't like feeling afraid ... I didn't like feeling that I could get in trouble for something as simple as posting a home video for my friends and family to see.'"

Comments

Tag goodforher !

[ynososiduts]

Nothing is better than seeing the average person stand up to the injustice of big corporation.

Re:Tag goodforher !

[Anonymous Coward]

She's not average. It's been my experience that moms are the toughest f*$king people on the planet, not to be trifled with.

This music group, may FSM have mercy on them... because she won't.

Re:Tag goodforher !

[king-manic]

There's some truth to that, but how exactly are the music moguls harming her child by not allowing her to publish copyright music without a license? Because copyright doesn't extend that far. A baby video with music would qualify as fair use/ derivative work.

Re:Tag goodforher !

[bev_tech_rob]

I found it funny in the video attached to the article that the ABC commentators mentioned that before this dust-up, only about 20-30 people saw the video (mainly family members). After this story broke, it has received THOUSANDS of hits (i.e Streisand effect).....so once again, big music shot itself in the foot....

Re:Tag goodforher !

[BinaryOpty]

Yes, the reason companies have to license work is because they're making money off of them in effect by having them inside their movie. The mom wasn't making money off of the video and the video wasn't going to steal sales away from people who would want to buy the song, so she was within fair use rights to use the song.

Re:Tag goodforher !

[orgelspieler]

I'll never understand the persistence of the myth that you must get clearance for every little sound in your film. The intarweb is full of pretty smart people warning that any image or sound in your films is a copyright violation unless you get permission from the copyright holder. One even said if somebody was wearing an identifiable t-shirt, you had to blur it if you couldn't get "clearance." This is all nonsense. People perpetuating this myth are eroding our fair use rights. IANAL, but I am a copyright holder, and I have talked to a few lawyers about it.

That being said, I'm not sure this ladies video is fair use. The music is effectively a soundtrack and comprises a large portion of the video's content. If I heard my (CC-BY-SA) music in the background of a video like this, I would at least expect a "music by orgelspieler" somewhere in the video description.

Let's recap fair use and how it applies to this case:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Obviously, the only item this might fail on is the amount. 29 seconds is about 10% of the song. You have to meet all four requirements to count as fair use. This is a great case for the courts to help explain what is and isn't allowed. Or better yet, maybe it will serve as a touchstone for those jerks in Washington to get off their asses and do something about this vast gray area that is diminishing the creative output of the nation. Copyright is supposed encourage creativity, not stifle it.

Re:Tag goodforher !

[BinaryOpty]

A slightly analogous argument is to say "well someone could use a knife to kill someone, we can't allow people to have knives then." Just because she could abuse fair use to make 8 movies each using 30 different seconds of a 4 minute song with the intent of people piecing them together into the original song doesn't mean fair use should be illegal, it means abusing fair use to make 8 movies each using 30 different seconds of a 4 minute song with the intent of people piecing them together into the original song should be illegal, which it is. A big portion of that is intent: in the presented case the person is intending for the music to be a replacement of the purchased version, just like someone buying a knife to cut veggies is different from someone buying a knife to murder someone with.

Re:Tag goodforher !

[autophile]

The intarweb is full of pretty smart people warning that any image or sound in your films is a copyright violation unless you get permission from the copyright holder. One even said if somebody was wearing an identifiable t-shirt, you had to blur it if you couldn't get "clearance." This is all nonsense. People perpetuating this myth are eroding our fair use rights. IANAL, but I am a copyright holder, and I have talked to a few lawyers about it.

It's not just "on teh Intarweb" that people are saying this. This idea is taught in courses on film production, and the reasons are very simple:

1. You can sue anyone for anything, at any time.

2. Copyright is a big stinking swamp filled with alligators and corpses. Nobody knows which way a judge will jump.

Because of these, copyright holders feel free to sue the heck out of anyone using their copyrighted material in any way, even if that way is technically legal -- because who knows? The judge might just side with you and you might get some money. Large corporate holders have plenty of money to burn, so there's no downside to suing for them.

Conversely, users of copyrighted material have a great deal to lose, even if they win. Fighting cases in court costs money, and successfully defending yourself can be Pyrrhic. I suppose if you're a large corporate user, you wouldn't care monetarily if you lose, but it could cause PR issues, I guess.

In any case, the reason people are told to get clearance for everything is that doing so avoids the whole issue. Going back to the stinking swamp analogy, it's clearly best to just go around it. That's why the "myth" of requiring clearance for everything is perpetuated. It's a Pascal's wager.

No, I don't like it either.

--Rob

I know Prince is a scary guy, but this ....

[trolltalk.com]

FTFA:

A well-placed source directly involved in the situation confirmed to ABC News that Prince was directly involved in seeking the takedown of Lenz's video.

"This guy scours the Internet,'' the source said of the legendary artist, who once changed his name to an unpronounceable symbol and wrote the word "Slave'" on his cheek until he won back the rights to his music from another publishing company.

"He's really intense about this stuff," the source said, adding that Lenz's video "happened to be one of many'' that artist apparently located online and demanded be taken down.

Doesn't the guy have better things to do with his time than to send takedown notices for 29-second video clips?

Hey, maybe he'll have to change his name again to avoid being known as the Bozo formerly known as Prince ...

Re:I know Prince is a scary guy, but this ....

[deesine]

>Doesn't the guy have better things to do with his time than to send takedown notices for 29-second video clips?

I doubt it was Prince himself doing the searching. Prince is plenty rich enough that he is probably paying someone to do the searching.

Having worked for an online kids entertainment company, I can tell you that part of the job responsibility of the 2 full time lawyers was to scour the net looking for any and all references to their company name and images. Also, no surprise this company was owned by a Scientologist, with all upper management being part of the cult too.

Re:I know Prince is a scary guy, but this ....

[RobertM1968]

It seems far more likely that BMI/Universal actually found the video and are using this tactic to create bad publicity for Prince (without him having done or said anything).

He wouldn't be the first artist/band who had a clause in their contract stating that his publisher could, without contacting him, send takedown requests or enter suit on his behalf, in his name, using his name for those purposes, and attributing the action initiation to him personally. There are actually numerous legal situations where, legally, one person sends letters, does some act, or whatever in the name of another person. Much like numerous business or legal letters never written or signed by the person who's "signature" appears at the bottom (yet still written as if that person personally wrote that letter) and in many cases, that person never reads the letter (which is instead read by their marketing and/or legal staff - and then signed in their name by that same staff or secretary).

It just seems really odd that after all this time, Prince is suddenly interested in tracking down his music online PERSONALLY for music that is "owned" by a record label he despises. I think from all he has said, he'd be thrilled with any of the stuff that the label still controls being out there wherever.

dated copyrights

[Robocoastie]

". I didn't like feeling that I could get in trouble for something as simple as posting a home video for my friends and family to see.'"

It's an example of how outdated our copyright and patent system is in the digital age. They need to be modified to accept that people are going to make fan stuff with them and see it as free advertising for that matter.

Prince?

[kihjin]

Printable version: http://abcnews.go.com/print?id=3777651

A well-placed source directly involved in the situation confirmed to ABC News that Prince was directly involved in seeking the takedown of Lenz's video.

Anyone know how true is this? It seems like he might have better things to do... such as serving us pancakes.

Inspiring...

[PottedMeat]

An American acting like one. You go girl!

Re:Offense is the best defence?

[trolltalk.com]

> "Talk to a lawyer before going head-over-heels suing someone like the *AA for taking your video off a site that doesn't even belong to you, ma-am"

If you had bothered to read the article, or even the SUMMARY, you would have known that she did talk to a lawyer. > "Unlike the *AA, you do not have the money, expertise, or political connections to be able to pull something like that."

The EFF is doing the suing for her, because of the principles at stake. Not everything is about money.

If people held the **AAFIA's feet to the fire more often, maybe we would have fewer frivolous takedown notices, and a bit more respect all around.

Uncorroborated claims newsworthy

[LoadWB]

FTA:

"File-sharing and illegally downloading of music has devastated a once-booming music industry. Some observers say the industry is just trying to protect itself."

Correct me if I am wrong, but I am of the opinion that this has never been proven conclusively and that what "has devastated a once-booming music industry" is the industry itself.

Also, for the grammar pedantic, should that be "illegal downloading of music"?

Re:Offense is the best defence?

[Wavicle]

To knee jerk reaction guy who didn't read the links:

1. She talked to a lawyer.
2. That lawyer is the EFF.
3. They're pretty experienced in this matter, and they intend to collect when she does.
4. Seeking a declaratory judgment is a pretty reasonable thing to do.
5. Universal doesn't get to trample over fair use just because they're a big company.
6. A company that knowingly tramples your rights should pay a fine.

that sure is the way to earn some goodwill...

[TheWart]

I have to wonder who thought sending Youtube a take-down notice over this video would be a good idea. There are only a few things that almost all online viewers can find amusing or endearing, and one of them is babies doing cute things. The whole idea behind this is so ludicrous that you almost have to think someone sent it to expose the idiocy behind the methods used by the music labels...The only way this could have been a more boneheaded move from a PR standpoint would to have been asking someone to remove a video of a baby playing with a puppy and kitten while creating lolcat pictures while listening to music in the background.

Now, if someone wants to sue the mother for letting her young child dance to Prince, then I am all for that :)

How to get permission

[Charles Dodgeson]

My nine year old daughter made a video of our dogs playing and wanted to add bits of the song "Dog Walk" by Scott Henderson to it. So being the obnoxious person I am and a great believer in "Civil Obedience" (strict compliance with stupid laws to help highly their stupidity), I said we need permission from the music publishers even if she just wanted to send the video to a few friends and relatives, much less put it on youtube. So I sent off the following email

My nine year old daughter wishes to add parts of

Song: Dog Walk
Artist: Scott Henderson

from the album "Dog Party" (Mesa records 1994)

in a short (two minute) home video of our dogs playing.

It is one of my daughter's favorite songs.

The video, probably as a Quick Time movie, will be distributed to maybe a dozen friends and family.

We would like to know whether we can get permission to use about 1 minute of the song this way, and how you would like to be credited if permission is granted.

Additionally, she may wish to upload the video to youtube. Please keep in mind that this is a first video made by a nine year old. It is far from professional. Would you grant permission for that as well? And if so, what additional conditions may apply.

I can send you a copy of the current draft of the video if you wish.

I am trying to teach my daughter to respect copyrights, and I hope that we can find a way to use the song in the home video in an reasonably convenient way while respecting your copyright.

If you have some established procedure for individuals making these kinds of requests, please let me know. I couldn't find anything on your website. Thank you.

This was sent by email on October 8, and I have received no reply. Next I will send a snail mail query.

All the while I am keeping my daughter informed of progress on this, so that when she grows to the point where she will be making choices regarding intellectual property, she will develop an appropriate respect for how the music publishers handle these things.

Re:How to get permission

[interiot]

Brilliant. One thing you should add, however, is a willingness to pay a small fee for the permission. Surely that's reasonable.

Of course, if they decide they don't want to take your money because you're small potatoes, it's obviously ironic if they decide to pay a ton of money to lawyers, to sue people over equally small potatoes. But it'd be nice if there were a way to codify that irony into law. That is... unless there's a reasonable means for people to request and receive permission to use copyrighted works, then the RIAA can't sue those small potatoes either. Of course, current copyright law says that it's well within a copyright holder's right to withhold their work for any reason. However, copyright is hopefully shifting towards somewhat more permissive rules these days. And if it does shift that way, hopefully one of the first things to shift would be that if a copyright holder distributes tens of millions of copies of a work, that they can hardly expect the teeming masses to not want to at least minimally interact with that work, and that such a proposal might be reasonable for widely-distributed works.

Re:Offense is the best defence?

[sharkb8]

You can have a suit filed against you anytime, it doesn't matter if you filed first. You can have a first suit filed against you without doing anything, or have a second suit or a counterclaim filed if you file first. Prince didn't sue her because she's got no money. What would be the point? In fact, you generally want to file suit first, you get to pick the venue. Is 9th circuit (CA) or 2nd Circuit (NY) is friendlier to fair use?

You can file a suit without even having a takedown notice. If you have reason to believe that someone will sue you for infringement, you can initiate a suit for declaratory judgment, where you get to pick the venue and circumstances.

She went to the EFF because they'll handle her case for free. Yeah, she's doing it to make a point, but the EFF can get legal fees out of the copyright holders if they win, and she may get damages. The RIAA may pay her off just to avoid setting a precedent that they'd have to live with for the next 50 years.

And yes, I am an IP/patent attorney.

Re:Offense is the best defence?

[trolltalk.com]

>"just to avoid setting a precedent that they'd have to live with for the next 50 years."

Maybe she should try to copyright the precedent so it will last her lifetime + 50 (or whatever it is nowadays)

(for the humor-impaired ... its a JOKE!!!)

To paraphrase....

[MrKevvy]

"How can u upload my music?
How can u pirate my song? (Yeah *my* song!)
Maybe I'm just 2 demanding,
Maybe the clip's only 30 seconds long,
Maybe u're just that kid's mother
He's never satisfied (Now he likes Nevermind)
Why do we takedown each other?
This is what it sounds like
When suits fly."

Hey Universal

[Nonillion]

My middle finger is waving at you. You got to be fucking kidding me. Don't you ass holes have something better to do? Like oh I don't know, publish better music? How many more company's am I NOT going to buy music CD's and DVD's from. But, just like normal you have to send bull shit take down notices for things that are clearly FAIR USE family videos. Get a FUCKING clue would you, because these 'take down notices' for irreverent things are getting way beyond old.

Go MOM!

[TechwoIf]

Go MOM!

Weather or not this is covered under fair use, at least someone, even if its just a few, are firing back at the MAFIAA.

Even though this case might not matter, the PR from it might just wake up a few congress critters that just taking the money from the MIFIAA might not be a good idea to stay elected if enough angrey moms vote then out.

Re:Offense is the best defence?

[Khaed]

Does that mean you can go right in and hold em up for cash?

Actually, as a matter of fact, it does. Else the EFF wouldn't have taken the case. The EFF may not be perfect, but they damn sure aren't going around wasting cash.

P.S.: Seriously, RTFA.

Re:Offense is the best defence?

[Gailin]

EFF Victories

With their pretty long list of cases listed here perhaps you could go through and point out out the hundreds listed, which ones they lost. If they have a track record of losing, I'm sure it won't take long to point out a few dozen cases the lost out of the hundred+ listed. I'd love to be more informed, but I suspect you probably have a couple headlines stuck in your head and are overgeneralizing.

I say,

[jon287]

She ought to write "slave" on one cheek and "owned by big biz" on the other until this is resolved. And maybe hang out around prince's multi-million dollar residence for a few days, collecting publicity photos. That should harsh his mellow a bit. Talk about hypocrisy!? WTF! This must be a new low.

bumper music and royalties

[Anonymous Coward]

There ain't any, none. Them harassing her is crap. Radio stations all over play 30 second and under bumper music clips for *free*. Been like that for a long long time. She got a 29 second clip, she can tell them to go pound sand. The judge will, too. I certainly hope they file notice with those bozo lawyer's bar association, she might have some serious damages coming and they could even be disbarred, because if IP law is their specialty, they will have known this in advance. She's gonna pwn them greedsters.

Re:Legal Precedence?

[pla]

could someone explain to me what right she had to use the song in the video?

I have to suspect you as a troll, but since you phrased it so politely...

The song played in the backround. In Real Life. The baby danced to it. The whole sickening glurge-factor aside (I agree, "for the kids" has no more meaning for "us" than it does for "them"), "documentary" falls well within the bounds of "fair use". And even if it didn't, the scene still happened. You can argue with the law, you can't argue with reality.

So, what right does she have to the song? The same right you or I or anyone has to their own lives, to our own culture, and to hell with the law if someone can twist it to say otherwise. I can tell you my day sucked, and Hoover can go pound sand.

Re:Offense is the best defence?

[timmarhy]

i just added you to the list of people i'm smarter than.

don't feel TOO bad, it's a pretty long list.

On the one hand, the EFF, on the other a idiot

[SmallFurryCreature]

Who do you think knows the law better, the people of the EFF who are handling the case OR some idiot with a slashdot account?

She didn't hire some ambulance chaser who is going to get his money anyway, she went to the EFF and they took on her case. That is smarts. The EFF doesn't exactly have a long history of losing. The content industry may be able to hire lots of lawyers but the EFF seems to get the smart ones.

Will she win? Wrong question, will the EFF win on HER behalve.

Also this will play extremely badly for Prince. I doubt he wishes to be known as the artists that sues moms. You can bet your ass that the press will have a field day because of his former name. THey LOVE pun headlines. If you have them a choice between a pun headline about a kitten or the outbreak of WW3, they choose the kitten.

No my friend, I will take the legal opinion of the EFF any time over yours. To many people on slashdot think they are lawyers. I listen to the ones who really are AND have a track record of being any good at it.

Have you actually watched the video?

[MacDork]

Here it is. UMG doesn't have a leg to stand on.

Amazing how many /.ers think they are lawyers

[SmallFurryCreature]

If you read the story then it seems as if this mother went to the EFF and they are representing her. The EFF ain't a commercial organization, this isn't a lawyer who is going to get his money wether he wins or loses.

Yet many will spout that she doesn't stand a chance. Yeah, because the EFF lawyers are NOT leaders in their field with a long history of winning.

This is a video with music playing in the background. Imagine if that was illegal, does the same go for images? BAM, you just destroyed all visual media taken in say Disney land. Disney owns the image rights to their park. Hell, simply picture on the street is likely to have lots of copyrighted advertising signs. Your clothes? Owned by the designer. Could you only make homemovies in a sterile white room with naked people? Might get a bit boring.

You could barely film/photograph anything without showing something that infringes on a copyright.

I am not going to watch a video of a baby, but the music was playing in the background, it was NOT a soundtrack added to the video. If we make it illegal to film normal live we have really bend over to far to the music industry.

But hey, don't take my word for it. Talk to a lawyer. A good one. Who does his work because he believes in a cause and does it without saying "win or lose, you own me". IANAL but the EFF is.

Re:She's going to lose.

[ren-n-stimpy]

uh, you are so sure of yourself, yet your argument is non-legal nonsense. Here are the tests of fair use:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

The four factors judges consider are:

      1. the purpose and character of your use
      2. the nature of the copyrighted work
      3. the amount and substantiality of the portion taken, and
      4. the effect of the use upon the potential market.

in this case:

1. clearly transformative, new work - she wins
2. not factual stuff, yet hugely public - a wash
3. it's a small fraction of the work, yet non-trivial - a wash
4. none, not for sale - clearly she wins this one

in short, whether you agree w/ *my* analysis or not, anyone can agree you made no fair use analysis AT ALL, instead tossing out pseudo-legal terms to confuse others, and prop yourself up. which makes it ridiculous to claim "she will lose."

no, not ridiculous:

TROLL.

No listen moron Re:Listen, lady

[greenbird]

You didn't make a video for your friends and family, you freaking put it on YOUTUBE for the WHOLE PLANET.

Give me a fucking break. She posted a video of her kid with something that I couldn't even distinguish playing in the background. Whatever she used the video for, any noise in the background is incidental. If you really think this in any way, shape or form is effecting {symbol}'s (the moron formally known as prince) ability to make money forever for a few days work he did who knows how long ago, you're a moron also. And while you're at it explain why the are there laws enforcing the fact that just because some asshole can make a little music their little bit of work should be preserved for the exclusive purpose of making money for both them and their relatives for 90 years after they are dead. Strangely enough there are no laws forcing people to keep paying me until 90 years after I'm dead for the work I do every day.

The RIAA's new moto

[EEPROMS]

All your culture are belong to us

Re:Normally...

[erroneus]

This isn't about "sue me first. sue you first" this is about the fact that due to RIAA's litigation-happy activities, she was essentially terrorized and intimidated. She was very. very afraid. Who is to blame for that fear and intimidation? The RIAA. Now, for that baseless fear and intimidation, she is going to sue for damages caused.

There are likely to be many precedents where unfounded fear and intimidation had resulted in damages being awarded by the courts. Her fears are not unwarranted and I believe the will be victorious in this case.

YouTube recommendations are -1, Offtopic

[whyde]

Now explain to me how it is possible that the first two recommended videos that show up after this is done playing are:

* BLONDE AMERICAN SLUT
* Sexy Blonde Shows Off Her Oral Talents.

And no, I'm not making this up.