There’s been a new development in the Troubling Tale of the Two-Steppin’ Toddler — or, as it is more commonly known in legal circles, the Lenz v .Universal case. Our regular readers are familiar with the facts: back in 2007, loving mom Stephanie Lenz posted a 29-second YouTube clip of her adorable tot dancing, with Prince’s “Let’s Go Crazy” blaring in the background (I actually think he’s just running around the kitchen pushing a Fisher Price walker, but I’m no Carrie Ann Inaba). A few months later, Universal Music had the video removed, claiming copyright infringement. Lenz fought back (Hell hath no fury like a mother scorned), claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. Since then, Mega-Mom has scored several victories, surviving a motion to dismiss in 2008 and knocking out certain of Universal’s affirmative defenses earlier this year.

Lenz fired off her latest shot on October 18, filing a motion for summary judgment in which she claimed that the takedown violated the law because Universal did not believe in good faith that the video was infringing. Refusing to go gentle into that good night, Universal filed its own summary judgment motion, arguing that the video was not an obvious case of fair use and that Lenz was delusional (okay, I added that part, but that’s basically the gist of the motion). In a nutshell, Universal contends that it didn’t just go off half cocked in sending the DMCA takedown notice; to the contrary, it had an employee watch the clip twice (twice!), and he concluded from this painstaking analysis that the usage did not in fact constitute fair use because Prince’s song was “prominent” in the clip and was thus a “central part” of the posting.

(Equally fascinating from the briefs, incidentally, is what’s missing — numerous lines ofredacted facts and argument in each brief, pursuant to a protective order in the case. While we have only the context of the briefs themselves to divine what’s missing, given the legal points surrounding the redactions and Prince’s widely-reported reputation for being extremely protective of his music, we suspect that Lenz is arguing that Universal couldn’t have been hurt in any event by her posting of the YouTube clip because Prince won’t let Universal license his music anyhow.)

Before we continue, let’s submit this to the court of public opinion. Take a look at the clip. Give Universal the benefit of the doubt — watch it twice:


Okay, survey says? Can you even tell that the distorted music you can barely hear in the background is “Let’s Go Crazy”? With my eyes closed, all I hear is commotion, laughter and the unintelligible background noise of a subway platform. For my two cents, the Prince song is far from “prominent.”

Universal obviously disagrees, and it argues vociferously that this was a “commercial use” simply by virtue of the fact that it was posted on YouTube, a “commercial site.” But what commercial purpose could the video possibly have served? Does Universal really fear that hordes of teenagers are going to download the clip, gloating over having bypassed the need to actually purchase Prince’s song? You can’t even hear it!

C’mon — Mom was only trying to share a cute video of Junior with her family and friends; she wasn’t engaging in any commercial use by uploading the video, was she? In fact, she was only doing something parents do all the time — memorializing and sharing a Kodak moment in her kid’s life. Lenz, I think, put it eloquently in her brief:

Every day, thousands of parents take pictures and make videos of their kids doing all sorts of things. Many of those pictures and videos incorporate copyrighted works in myriad ways — a child may be wearing a t-shirt with a copyrighted character on it, or she may be standing in front of a copyrighted sculpture, or there may be copyrighted music playing in the background. This activity doesn’t make the parents of America copyright scofflaws — even if the copyrighted work is, in some sense, the “focus” of the picture or video. For example, sending a picture of someone in a (copyrighted) Disney t-shirt with the note, “My son went to Disneyland and all I got was this Mickey Mouse t-shirt,” does not violate copyright law. And everyone versed in copyright law (such as a major music publisher) knows why: because these examples are fair uses.

I shudder to think how many suits would be filed against YouTube-loving wedding couples if Wagner’s “Bridal Chorus” weren’t in the public domain (“Here Comes the Bride?” You mean, “Here Comes the Judge“…). Can you believe this is the genesis of a 3-year long, hotly-contested lawsuit? I’m all for policing copyright interests. But I don’t think this use is going to open the proverbial piracy floodgates. “Let’s Go Crazy?” I think we already have.

Anyway, the cross-summary judgment motions are scheduled to be heard on December 10. So, for those of you chomping at the bit to upload that video of your two-year-old singing “Single Ladies” in the bathtub, tune in next month.