Michael Elkin Discusses Dancing Baby Copyright Case with Bloomberg Law

Partner Michael Elkin, who serves as chair of the firm’s Copyright, Entertainment & Digital Media Practice, was a guest on Bloomberg Radio’s daily Bloomberg Law brief with host June Grasso on September 29. Mr. Elkin discussed fair use as it relates to a recent Ninth Circuit Court of Appeals decision allowing a copyright case concerning a YouTube video of a dancing baby to go to trial.

Mr. Elkin described how a mother posted a video to YouTube of her two sons dancing to the Prince song “Let’s Go Crazy.” The video was discovered by Universal Music, which was monitoring YouTube videos on the artist’s behalf. Universal Music sent a notice to YouTube to take the video down, and YouTube in turn informed the user that she was unauthorized to post the video, but that she could choose to prove her right to use the video. The mother filed a lawsuit against Universal Music concerning the fair use of the song, leading to eight years of litigation.

“Fair use is an integral part of copyright law,” Mr. Elkin said. “The copyright law itself has certain factors that have to be taken into account in order to arrive at whether something is fair use. If it is fair use, there’s no copyright protection for the particular work itself.”

In the first ruling by an appeals court, the Ninth Circuit ruled that copyright holders have to consider whether a video constitutes fair use before deciding to send a notice to have the video taken down.

The 16-minute interview discusses the fair use implications of the case, the potential for the case to reach the United States Supreme Court, and also includes audio clips from the Ninth Circuit oral arguments.