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After More than 10 Years in Court, UMPG Agrees to Change Its Take Down Terms — Chicago and Naperville Intellectual Property Attorneys

Not all companies are sure how to apply their business practices to the Digital Age. Since most people running some of the larger, more established companies came of age in a pre-internet era, many of them are understandably stumped by what laws and rules apply to which online situations (although admittedly a lot of younger viewers aren’t sure about the rules of social media either).

The situation has improved over the years as everyone has adjusted to the new technologies, but the early part of the new century was an especially trying time for companies and individuals alike.

Take Stephanie Lenz for example. She took a video of her infant son dancing to the song, “Let’s Go Crazy,” by Prince, and then uploaded it to the internet where anyone could see it – without asking permission or paying for the use of a song to which she did not own the rights. That seemingly harmless act resulted in a copyright lawsuit that dragged on for more than ten years.

Universal Musical Publishing Group (UMPG), which owns the rights to the recordings of Prince’s songs, issued an order under the Digital Millennium Copyright Act for Lenz to take down the video.

Lenz initially complied with the order, but then she contacted the Electronic Frontier Foundation, an international non-profit group that works to protect people’s rights online. The company is based in San Francisco and argued that UMPG had ignored the fair-use exception to the copyright law when it ordered Lenz to take down the video.

The fair-use exception is an aspect of copyright law that allows individuals to use copyrighted content in certain situations. It is specifically meant to protect those criticizing or parodying the copyright material in question, although there are other, additional factors judges tend to consider when determining whether something qualifies for the fair-use exception. Those factors include: how and why the content was used; the nature of the copyrighted work in question; how much of the copyrighted work was used and how substantial it was to the ultimate content produced/distributed; and the effect of the use of the copyrighted material on the potential market.

While a 29-second video of a baby dancing to a copyrighted song constitutes neither criticism nor parody, it likely would have fit other requirements for the fair-use exception if it had made it to trial.

The case reached the U.S. Court of Appeals for the 9th Circuit, which outlined some basic steps copyright holders could take to determine fair use (including the use of algorithms) before implementing a takedown. The court then sent the case back for the trial court to further examine whether UMPG had knowingly and intentionally broken good faith by pursuing a takedown of Lenz’s video before fully considering whether it might fall under the fair-use exception. The dissenting judge’s opinion stated that UMPG’s actions were a clear violation of good faith and that the appellate court should have been able to rule it as such without sending the case back to the trial court.

The UMPG appealed the 9th Circuit Court’s decision to the U.S. Supreme Court, which declined to hear the case, but before it could go back to trail, Lenz and the UMPG reached a settlement agreement, which includes a clause stating that UMPG will implement a new and more “fair” process of determining what kinds of content require takedown orders.Super Lawyers named Illinois commercial law trial attorney Peter Lubin a Super Lawyer and Illinois business dispute attorneys Patrick Austermuehle and Andrew Murphy Rising Stars in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. DiTommaso Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex class action, copyright, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes.  Our Arlington Hts. and Elmhurst business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0000 or our toll-free number (877) 990-4990.  You can also contact us online here.