September 2008
The Artist Formerly Known as Baby Prince
In one of the most bizarre cases this year, a US mother and writer, Stephanie Lenz, is taking Prince’s lawyers to court after they obtained a take-down notice removing a video posting from YouTube of her young son singing to ‘Let’s Go Crazy’, 29-seconds in length. The clip was so popular it was viewed over 593,000 times.
Although the quality of the recording was poor, and Ms Lenz stated she had only posted the clip for her friends and family to see the child dancing. Ms Lenz applied to court to have the video reinstated, taking Warner Music, who own the rights in the recording, and Universal Music, who have the publishing rights to the song, to court. Universal argued that the use of the material was ‘not authorised by the copyright owner’. Ms Lenz did not post any further copies of the video.
A digital rights lobby group is assisting Ms Lenz and arguing that the use of the song is ‘fair use’, which in US copyright law allows a portion of a copyright work to be used so long as its use does not substantially infringe upon the rights of the rights owner and generally covers news reports, commentaries, educational materials, parodies etc. Whether something is fair use is difficult to say and has been defined through Court cases. Last month a US Judge rejected an Application by Universal to dismiss the case, stating that Ms Lenz had incurred legal costs in the case and should be compensated. Ms Lenz argued that Universal in the case of Prince, acted ‘solely to satisfy Prince’ rather than in good faith. The outcome of the case remains to be decided.
Prince is known to have a reputation for testing music industry practices and protection of his intellectual property. In the past year he has given away an album in a Sunday newspaper as a promotion, as well as hiring a firm to trawl YouTube for mobile phone images of his live performances. A London dentist, Paul Bain, who obtained a recording contract with Sony based on an operatic version of Prince’s ‘Purple Rain’, was prevented from releasing the song.
This is not the first case where the US music industry giants have sought to enforce their intellectual property rights. In 2003 the Recording Industry of America sued 261 people for copyright infringement, the youngest of whom was just 12 years of age. That case was settled by way of a $2,000 payment by the child’s mother. More recently a UK action was brought by the video games industry against a woman who had enabled a video game to be copied several hundred times over via a filing sharing website.
Briffa CommentUnder UK law, the video posted on the internet by Ms Lenz is a separate copyright work in its own right. Universal and Prince’s lawyers would have to establish that a substantial part of Prince’s music had been taken, which in this case would not be difficult, however Ms Lenz could argue that it is not a dominant aspect of her copyright work, and that she has not ‘copied’ the work itself, rather produced her own version. Although US law is different, Ms Lenz may be successful in her fair use argument given the context of the video.
What is relevant here is damages, i.e. Has the use of the song in the video really damaged Prince’s reputation or affected sales of his music? It would seem unlikely. If it had, it would be difficult to establish loss of earnings or damages in financial terms.
The safest route for Ms Lenz would have been for her to obtain a licence from Universal in order for her to use the song in the video. However whether there was any hope of getting such a licence practically speaking is debatable.
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