Universal: Background Music In Home Videos Constitutes Copyright Infringement

Look at this kid dance and smile as he revels in his mother’s blatant copyright infringement. The song fueling his happiness, Prince’s “Let’s Go Crazy,” is owned by Universal Music Group, whose lawyers are not dancing, smiling, or happy. They sent a curmudgeonly DMCA takedown notice to YouTube, riling the Electronic Frontier Foundation to sue Universal in retaliation.

From Ars Technica:

The video of Stephanie Lenz’s 18-month old son Holden was uploaded to YouTube back in February; Universal filed a DMCA claim against the clip in early June. Lenz responded with a counter-notification of her own at the end of the month, but the clip was never reinstated. Now, she has joined forces with the EFF to recover damages after she “has been injured substantially and irreparably,” according to the court filing. Lenz wants money to cover her legal expenses and wants an affirmative judgment that her clip is not infringing.

So on one side, a music conglomerate that thinks the background music in home videos constitutes copyright infringement; and on the other, a woman who thinks the removal of her YouTube video constitutes substantial and irreparable harm. Legal assertions regularly skew towards the absurd, but this is fire v fire at its best. The battle of utterly inane arguments will be waged before a U.S. District Court in California.

Universal demands takedown of homemade dancing toddler clip; EFF sues [Ars Technica]

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  1. Falconfire says:

    they did this to Youtube a while back as well. A number of very well known youtubers got their stuff taken down when the RIAA blanketed the site with takedown notices. In order to get their videos back, those who could had to remove the songs used and put something else in its place, usually indie music or music made by other youtubers.

  2. mopar_man says:

    So if there happens to be music playing softly in the background of my home movies and I show it to other people, that’s copyright infringement too? The RIAA needs a old fashioned curb stomping.

  3. B says:

    @mopar_man: Only if you post them on the internet. Playing the video at home is fair use, posting on youtube isn’t.

  4. cde says:

    If this is being heard in Cali, 10 to 1 the lady will win, if not on appeal to the 9th circuit :D

  5. cde says:

    @B: Playing it at home, for yourself and MAYBE your immediate family is fair use, showing it to a friend isn’t, even at home.

  6. Toof_75_75 says:

    My question is, who’s got the lame ass job of sitting and watching infinite YouTube videos and listening for copyrighted material? What a waste of time…

  7. The baby is too cute for legal battles!

    This isn’t even a fan vid, the music was playing while the video was being shot and it’s hard to distinguish at that.

    Maybe it’s infringment but it seems awfully petty.

  8. Karmakin says:

    This is a good example on why we as a society need to punish the IP mafia.

  9. banned says:

    Another reason why copyright laws are BULLSHIT! Technically this is breach of copyright, just like copying old cassette tapes was. The difference is in the old days, they didn’t waste their time on these petty laws. This lady did not profit in any way. On the other hand, she was not damaged either. YouTube can take down any post, any time, for any reason, period

  10. jeff303 says:

    @Toof_75_75:
    Watch Youtube all day, get paid? Doesn’t sound half bad to me.

  11. kittikin says:

    Is it considered copyright infringement if you (the poster) are not receiving monies from subsequent viewings?

  12. beyond says:

    Maybe fighting stupidity with stupidity is a good idea.

  13. zsouthboy says:

    BY CDE AT 03:39 PM

    @B: Playing it at home, for yourself and MAYBE your immediate family is fair use, showing it to a friend isn’t, even at home.

    Uh. Wrong.

    Fair use covers all of that.

  14. supra606 says:

    This post is an exhibit of two problems we have in this country: frivolous lawsuits (on both sides in this case imo) and the intellectual property cartels. Someone needs to do something about both but as long as our government is controlled by the highest bidder…

  15. consumeristlegs says:

    The funny thing is that they are shooting themselves in the foot: they should be making it ehe music that is in the videos so that people can buy it; these videos are free advertising.

  16. macinjosh says:

    Unfortunately, the kid’s name isn’t Holden Copyright. :)

  17. hustler says:

    It should be illegal to listen to music, period. Every time you listen to a song, it should constitute sending money to a record company executive, because that’s what this is about it. If record companies can limit music play to this extreme, then if we want music it must come from MTV and the daily top 10 songs.

  18. gbeck says:

    I don’t think that this mother’s decision to take a principled stand on an issue even though she has no monetary interest in it makes her lawsuit inane or frivolous.

  19. yahonza says:

    Outrageous. The music wasn’t even dubbed in. They were just recording an event as it happened. Definitely fair use.

  20. Jaysyn was banned for: http://consumerist.com/5032912/the-subprime-meltdown-will-be-nothing-compared-to-the-prime-meltdown#c7042646 says:

    I’m probably preaching to the choir here, but people: STOP BUYING RIAA MUSIC!

    These guys aren’t going to let up until they are dead. Not buying their product is the only way we can let these leeches know that they aren’t wanted or needed in this day & age. There is so much great music out there that is produced by an indie label or not on a label at all that it’s not funny.

    You can find some really great stuff here: |www.riaaradar.com |

    & here |www.archive.org|

    & Just today a co-worker turned me onto these guys |www.woodbelly.com|

  21. B says:

    @zsouthboy: Right, cause otherwise having music at a party would be a copyright violation. Hmmm, I hope the RIAA isn’t reading this.

  22. overbysara says:

    that’s just ridiculous. they can’t even be taken seriously at this point.

  23. UnStatusTheQuo says:

    You know, before RIAA, that would have possibly been seen as a free commercial….

  24. TheSeeker says:

    Wait a minute…I thought it was common practice for teens and college kids to bootleg music by watching youtube and recording the background music that little kids dance to. Isn’t that what all that sharing is about?

    “hey lenny, I heard this cool song on youtube..heh heh..wanna here it?”

    “Kool…dude…burn me a copy”

    What about all those videos sent in to Funniest Home Videos? Plenty of them have background music…did ABC pay royalties?

    Perhaps someone might hear a song on YouTube they forgot about and may actually go out and buy it. Kind of free advertising, isn’t it?

    And I’m sure Prince doesn’t care…he gave away his last CD for free in UK newspapers.

  25. Edidid says:

    Sigh…well the only way the DMCA will be made reasonable is when it pushes so many average people to insanity that the general population refuses to follow it in protest.

    IPs need protecting but this is getting ridiculous. There is even a music publisher who is trying to get royalties for “broadcasting” streamed audio from a home computer to an xbox or other such interface.

    It the big guys hadn’t driven out every independant music store in the area maybe I would have some options, but if Pandora and other services die off then most of the US will not have any choice in what music is available.

  26. supra606 says:

    @TheSeeker: From what I’ve read, most of the artists don’t care because they make their money from concerts and very little from album sales. I wonder where that money is going then…

  27. mopar_man says:

    @overbysara:

    Once they started suing dead people and the elderly, that’s when it stopped for me. And that was a long time ago.

  28. Xerloq says:

    So RIAA actually thinks that this lo-fi, compressed, truncated, talked-over song would replace the actual song by Prince? How exactly does this clip diminish the value of the original work? Do they really think someone would take this clip, rip it to MP3 and play it on their iPod?

    I know this is about control of distribution of a work, but this is ridiculous!
    Cute clip, though.

  29. infinite8s says:

    Now IANAL (I am not a lawyer), and I haven’t read anything but the above summary, but this seems like a pretty clearcut case of copyright infringement (as copyright law now stands), since youtube is definitely profiting off the video (in the form of advertisements and site visits). And to answer a question above, copyright violations are illegal even if there is no monetary gain by the violator.

    But this example just demonstrates how ridiculously outdated copyright law is in its current form. Instead of attacking the music studios, everyone should go to the source and encourage sensible copyright reform in Congress (which has the real power to effect change). Unfortunately members of Congress often only hear one side of the copyright debate (OMG! We must stop all these pirates!) and lose sight of the original tradeoff that was codified as Copyright (to promote the progress of science and the arts by securing a limited-time monopoly on distribution).

  30. Youthier says:

    @gbeck: Agreed. Under the circumstances, her countersuit seems perfectly appropriate.

    If RIAA artists ever made a CD worth listening to, I would be afraid to buy it at this point.

    Also, seriously? How many people saw this video? I don’t give a damn about how cute some lady thinks her kid is.

  31. Kurtz says:

    I wonder if ASCAP and BMI will come her if she beats the RIAA.

  32. Ironically, Prince just gave his latest album away for free. Universal must be pissed about that, don’t you think?

  33. Kurtz says:

    @Kurtz: That is, come after her if she beats the RIAA.

  34. Steel_Pelican says:

    I honestly love it that nobody can defend this kind of bullshit anymore. When P2P first blew up, there was a real debate about it – there were lots of people defending artists and defending the industry.

    In the intervening years, however, the RIAA et al. have made bitter enemies of their one-time customers. And no one remains to say “You know what, I kind of agree with Lars on this one.”

    We should react to this the way the online world reacted to the AACS Key Takedown notices- flood the tubes. Take up your cameras and record as much fair use as you can. They’ve got the guns, but we’ve got the numbers.

  35. Tengaport says:

    This is utter BS! Seriously, does the RIAA have families let alone hearts. Are their stone faces even capable of a smile? How can anyone look at that video and see copyright infringement instead of a cute, dancing baby.

    This is beyond a joke, beyond fair use and beyond good taste, this is just total and absolute bullshit.

    I’ve run an indie record label for over ten years now – we used to encourage people to check out our bands on Napster back in the day with the hopes that if people liked what they heard they’d support our bands on the road. Any exposure was absolutely fantastic for us as it only lead to… well, more exposure.

    These major labels are nothing more than greedy, slimy penny pinches. More actions like this will only insure that I never EVER contribute a single dollar to their bottom line for as long as I live.

    Keep up the good work RIAA – I’m off to go download music I don’t even want just to spite you. Thats right, I said DOWNLOAD! Suck that fascists!

  36. Coder4Life says:

    I say everyone cut down on their cd buying.

    Only 1 person buy it and then send it all your friends that might want it.

    Also start buying music online rather than in stores, they make less money that way.

    I wanna see the RIAA go down…

  37. Paul D says:

    Kee-riste!

    If you hadn’t told us what the background song was, I never would have figured it out. It’s nearly impossible to hear.

    Yarbles! Great bolshy yarblockos to Universal.

    Geez…

  38. Falconfire says:

    @infinite8s: NOOOOOOOT EXAAACLTY. See the problem is length. if its under something like 30-35 seconds, its considered fair use regardless, even if its a comercial on broadcast TV (which is why SciFi is able to use the old 80′s Flash Gordon theme despite not licensing it).

    Thus since the song in the clip clocks in at like 28 seconds, its fair use.

  39. DojiStar says:

    Wow, it’s not like people are viewing that video just to hear the song, make a pirated copy of that song, and nothing else. They are there to watch a baby.

    The music in the background is if such poor quality, how could the RIAA even think that was somesort of violation.

    You can’t even sing happy birthday in a public place anymore without violating some copyright law.

    The RIAA keeps biting the hand that feeds them then blame pirates for slumping music sales.

    You think maybe they are alienating their customer base to the point that they don’t buy music anymore??

  40. kingoman says:

    OF COURSE it’s copyright infringement. I find it absolutely stunning that this surprises anyone, let alone that so many people advocate ignoring it.

    (Yes, the copyright laws should be redesigned, they’re completely inadequate in the face of modern technology (modern defined as “since the 1970s!”). But until this happens, we have to deal with what we have.)

    ANY use of copyrighted material without permission is copyright infringement. If you aren’t making money from it, then it’s usually overlooked (unless there’s some PR impact or something). Home movies and such usually fall into that category. But when it’s posted on youtube, even if you don’t make money, youtube does, so yeah, the copyright owner is going to want a piece of that action.

    I do free-lance writing and if somebody took something I wrote without my permission and used it to somehow generate income (heh, I wish), you’re damn right I’d want a piece of it! But typically I sign over the ownership to the publisher anyway, so in reality, it’s the publisher who is wronged in that example and who would go after the people misusing it (not unlike the RIAA example). In that case, my publisher then gives me a cut of what they get since that’s already covered by our existing royalty contract, so I’m still in the chain.

    Yes, the RIAA is big and evil and greedy and vile. But that does not justify ignoring existing law because some results seem unfair. We need to fix the system, not become anarchists. The RIAA *should* be a useful tool for artists to collect and distribute their royalties for their work. It’s turned into something else. THAT is what needs to be fixed.

  41. Lazlo Nibble says:

    @Tengaport: By any chance, do you have a complete list of the laws that are null and void in the presence of a cute, dancing baby?

    I don’t have a cute, dancing baby, but this seems like a good reason to get one.

  42. Televiper says:

    @Coder4Life:
    Actually, what people should do is go out and buy music that’s not represented by the RIAA.

    What you’re advocating is pseudo boycott through piracy. It basically demonstrates that they have the correct strategy. Which means they will continue attempting to remove major piracy sources, and setting a legal precedent for enforcing their copyright.

    The best thing you can do the kill the RIAA is demonstrate that you are happy to go elsewhere. As more people get up and go elsewhere the options will become unlimited.

    As far as I’m concerned (as a guy who owns a couple thousand CDs) the major labels are the last place you go for good music.

  43. LTS! says:

    The truth is in these comments, we need to weed it out.

    Copyright law is not flawed. It is there to be used as needed. This is an instance where it should NOT be needed. However, if the RIAA wants to continue doing this the proper response is not to blatantly download music illegally just to spite them, it is to support musicians who do not align themselves with the ideals of the RIAA. I realize it takes a little bit more work on your part to do this, but think about the sheer stupidity of your actions. You want the RIAA to find, promote, and get the music you want to listen to on the market, but you don’t want to pay for it. What? Granted the RIAA has a lot of flaws, but be standing up and just promoting illegal acts you are simply adding fuel to the arguments the RIAA needs to sway the government into passing more restrictive and ridiculous laws.

    Simply put.. demand a change. Find your local artists, look at places that have been posted on here, and seek out others. Encourage internet radio stations to seek out artists not aligned with the RIAA and play that music. If you want to put an effort into promoting something, promote that. Don’t just go download the latest CDs from artists who have sold out to the RIAA ideals, regardless of what they say, they like the promotion and money that comes along with that power.

    Bottom line: Find local artists, support non-RIAA aligned resources. If you don’t know what those are, then do a little research. Beg Consumerist to start an anti-RIAA movement where it benefits the consumer to find these havens of music and stop the RIAA from doing what it will.

    For the record, I am a musician, and I have absolutely no intention of ever supporting the RIAA. However, I do like some compensation for my efforts and it really pisses me off when so many people just up and say, I’ll download it for free even when it’s not offered for free.

  44. stanfrombrooklyn says:

    I guess I’d be a little more shocked if the background music was “Darling Nikki”

  45. Catalyst says:

    We are on the verge of a complete change in how the recording industry operates. Don’t be surprised if we see big time artists start to enter new legal relationships to sell their work. There is less and less a need for this type of artist-publisher relationship in music anymore. Why let the industry take all the money when you can hire someone to promote your music, release digitally, and make the money yourself?

  46. Havok154 says:

    The RIAA reminds me of those WAMU commercials with the pen of uppity execs. I could totally see the record execs having their own pen.

  47. crankymediaguy says:

    “I do free-lance writing and if somebody took something I wrote without my permission and used it to somehow generate income (heh, I wish), you’re damn right I’d want a piece of it!”

    So, if anyone ever reviews something you write and includes a quote from your work in the review, you intend to go after them for “damages?”

    Hey, those reviewers get paid, you know! Go get ‘em, Perry Mason!

  48. ihatemylife says:

    I say that everyone who listens to/owns cds should immediatly file a civil action in small claims court against the RIAA.

    It doesn’t matter what the reason is… just file, have them travel all over the country to fight thousands of small claims cases… It’ll cost them a bundle!!!!!

    $15 dollars to hassle the RIAA.. its dirt cheap…

    (Boy am I going to get slammed on this one)

  49. gbeck says:

    @kingoman: “ANY use of copyrighted material without permission is copyright infringement.” Not so. In fact, a significant amount of copying is permitted, even encouraged, by the law. That’s the doctrine of fair use. And one of the most important factors in fair use analysis is whether the copy cuts into the market for the original, i.e., whether the author is losing sales because the public is using the copy instead. I don’t think anybody would take this video as a substitute for purchasing the original CD. There are other fair use factors to consider, but in this context I think that’s enough to win this case for the mom.

  50. olegna says:

    >> OF COURSE it’s copyright infringement. <<

    There’s never been an absolute in the Law of Mass Communication. In fact, there is Fair Use. Fair Use is why you are allowed to photocopy a certain amount of a textbook at your college bookstore — unless you work there and illegally photocopy all of your textbooks, then return them for a full refund, saving you a lot of money :)

    Fair Use is a case-by-case basis having to do with how it’s used and how much of it is used. If this video is indeed a 28-second clip of a Prince song playing in the background of a home movie, it’s clearly fair use.

    However, because this is case law, obviously winning or losing is at the whim of the judge, how good your lawyer is, who back down first, etc.

    Think about this hypothetical situation: you’re walking around lower Manhattan on 9-11 with a video camera, you stop at battery park to film some break dancers performing to some copyrighted hp hop music. Then, with the music in the background you catch incredible footage of the plane hitting the WTC and you sell the video for a million dollars to Maury Povich. Do you owe the RIAA money because some bystanders happen to be playing licensed music in a public place that you’re filming? I think not.

  51. kingoman says:

    @crankymediaguy: No, of course I don’t mean something small like a quote, that *is* fair use. I mean using a large portion or the whole thing.

  52. bnb614 says:

    I always enjoy reading comments from people who talk like experts that really are just giving an opinion that isn’t based in fact or law.

    I am no lawyer but before you say “of course it’s copyright infringement” considering reading up on FAIR USE.

    To try and educate myself on the issue, I joined the Electronic Frontier Foundation.

    I would encourage anyone who is tired of RIAA and other music interest groups bullying people, to join EFF. They are suing Warner Music on behalf of the woman above. Their article on that is here.

    Oh, and also read Lawrence Lessig’s book “Free Culture” to understand the history of copyright.

  53. kingoman says:

    @olegna: “Do you owe the RIAA money because some bystanders happen to be playing licensed music in a public place that you’re filming? I think not.”

    You very well might, I wouldn’t want to take it to court.

    Why would you not just cut that part out before selling the video if that isn’t even the part that makes it valuable? Or dub over it to remove the audio if you need the images for authenticity. This is done all the time to protect unintentionally included copyrighted material.

    Would you not agree that if you had purposely videotaped the dance troupe and sold that tape, that would be a copyright infringement (both of the owner of the music AS WELL AS the dance troupe)? Then how is selling the same footage as part of something else any different? Intent and main subject is not what defines copyright infringment.

    Now in a case like this, you might not get sued because, hopefully, good sense would prevail and they’d realize you weren’t *trying* to use that, it was just part of what happened. But just because they don’t sue you doesn’t mean it wasn’t copyright infringement.

  54. Bye says:

    Whenever music is married to an image as in film or TV, you are required to get a synchronization license. (The Master license is another argument…)

    The law is a bit hazy when it comes to randomness – if you were to play an image without sound on a screen and then pressed play on an old-fashioned cassette deck, a sync license would not be required. But when the music always matches the action on the picture, it is required.

    This isn’t a problem for home movies, but it is a problem for home movies that are posted to a broadcast site like YouTube. I think the thing that most impresses me is the fact that Universal recognizes the power of YouTube and knows that videos can become sometimes as popular as TV shows.

    The sync license would not be required if it were within the parameters of “fair use” – showing it to family & friends and perhaps even posting it to your own website. But when you use YouTube, a site designed to broadcast filmed images to a large audience, those who hold the sync and master rights will take notice.

    I don’t think they’re being ridiculous. FOR ONCE. There can be very strict guidelines for getting approvals for using music in a film or TV show – I remember working on one film and we wanted a Moby song. (This was before he ended up licensing his entire _Play_ album.) He objected to the song usage because the accompanying imagery looked too violent to him so an alternate had to be found. If the licenseholders don’t draw the line with regard to YouTube content – which is comprised not of professional and amateur stuff – they might find themselves in a situation where their songs are used in inappropriate or offensive contexts and they can’t do anything about it. Including getting the money that’s coming to them.

    This is especially hard on musicians who by luck or planned negotiations are able to retain their publishing (sync) rights.

  55. veal says:

    If anyone here at Consumerist needs to replace the music on their Youtube videos with original music, drop me a line: brailleparty@hotmail.com

    I will do it for cheap.

  56. gbeck says:

    @Rey: While it may be safer to get a license in some cases, it is not required when the use is fair use. The industry practice in this area does not mirror or often even resemble copyright law because filmmakers often err far on the side of caution. There are no hard rules; it all depends on the particular circumstances. A bit of music caught incidentally in a home movie will be treated by the courts much differently than an intentional taping and display of an entire performance.

    Given that nobody is going to use this video as a replacement for the original album, I find it extremely unlikely that a court would consider this to be infringement.

  57. Bye says:

    GBECK: You are right in that under normal circumstances this would absolutely be fair use.

    But the tricky thing with sync licenses is not in the worry that the music will be pirated or recorded onto a CD instead of purchasing an album. Sync licenses must be obtained for all appearances of music within a film or broadcast where the music lasts usually around 5 seconds or is recognizable.

    That said, the home movie scenario is pretty safe, but when you start posting your videos – amateur or not – so that they are broadcast to a wide audience, the fact that the music is consistently linked to the accompanying image is enough the rights-holders need to make a case.

    It’s true, the filmed entertainment industry does err on the side of caution but that’s because they have seen first-hand what can happen when you don’t get clearances in advance – it can end up costing thousands of dollars more to license the track. In these cases, it’s much more expensive to ask for forgiveness than it is to ask for permission.

  58. AaronGNP says:

    I agree that RIAA was within it’s rights, no matter how douche-like it is.

    Also, some of you need to read up on what fair use is (with regards to American law):

    From [www.copyright.gov] :
    “The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

    It also makes note on whether or not the work is for a commercial venture or not. Asking youtube to remove it is within the copyright holder’s… rights.

    AGNP

  59. Sued for a song playing in the background? And I thought the industry could go no lower than trying to get blantant parodies taken down by means of the DMCA.

  60. jaewon223 says:

    they need to just ban music all together.

  61. HosannaAgenor says:

    I made a video slide show from some pics I shot, and dubbed a Tom Petty song behind it. Can it be used in any kind of public forum? Even if there is no money in it for anyone?