The Dancing Baby's Rule: Lenz v. Universal and the § 512(f) Duty to Consider Fair Use

The Ninth Circuit held that a copyright owner must consider fair use in good faith before sending a DMCA takedown notice — and that failing to do so can expose the sender to liability for misrepresentation under § 512(f).

In Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sept. 14, 2015), the U.S. Court of Appeals for the Ninth Circuit confronted the other side of the DMCA’s notice-and-takedown machinery: not the platform’s safe harbor, but the sender’s responsibilities. Writing for the panel, Judge Richard C. Tallman held that a copyright holder must consider whether a use is fair before sending a takedown notice under § 512(c), and that the failure to do so can support liability under § 512(f) for knowing material misrepresentation. The case famously began with a 29-second home video — Stephanie Lenz’s toddler bouncing in a kitchen while Prince’s “Let’s Go Crazy” played faintly in the background — uploaded to YouTube in February 2007 and targeted by a Universal takedown notice.

At a glance

Court and date: Ninth Circuit Court of Appeals, opinion filed September 14, 2015, Nos. 13-16106 and 13-16107.
Core holding: Fair use is “authorized by the law” under 17 U.S.C. § 107, not merely an affirmative defense to be raised later. A copyright owner must therefore consider fair use in good faith before forming the § 512(c)(3)(A)(v) belief that a use is unauthorized.
§ 512(f) standard: Liability for misrepresentation turns on a subjective good-faith standard — a sender is liable only if it did not subjectively believe the targeted material was infringing (i.e., that it was not a fair use).
Willful blindness: A plaintiff can show the requisite knowledge by proving the sender was willfully blind to the high probability that the use was fair.
Damages: A § 512(f) plaintiff may recover nominal damages and need not prove actual monetary loss to proceed.

Fair use as a “use authorized by law”

The statutory hook is § 512(c)(3)(A)(v), which requires that a takedown notice include a statement of “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Universal argued that fair use is an affirmative defense — a justification for otherwise-infringing conduct — and therefore not a “use authorized by law” that a sender must weigh before complaining.

The Ninth Circuit disagreed, drawing a careful doctrinal distinction. Although fair use is procedurally labeled an affirmative defense, § 107 declares that a fair use “is not an infringement of copyright.” That, the court held, makes fair use a use authorized by the law in the relevant sense: it is conduct the Copyright Act expressly permits. Because the statute requires the sender to attest to a good-faith belief that the use is unauthorized by law, the sender must actually have formed a view about fair use before it can honestly make that representation. A notice sent without any consideration of fair use cannot rest on the good-faith belief § 512(c)(3)(A)(v) demands.

The court was careful to keep the bar realistic. A copyright owner need not conduct an exhaustive, litigation-grade fair-use analysis. It must form a subjective good-faith belief, and the court suggested that even automated or algorithmic screening systems could, in principle, satisfy the obligation so long as they are designed to account for the most common fair-use considerations. What a sender may not do is ignore fair use entirely.

The subjective standard — and its sharp edge

Having imposed the duty, the court calibrated the consequences with a defendant-friendly standard. Section 512(f) imposes liability on anyone who “knowingly materially misrepresents” that material is infringing. The court held this requires subjective bad faith: a sender is liable only if it actually lacked a good-faith belief that the use was infringing. An honest but unreasonable belief — even a careless one — does not trigger liability, so long as it was genuinely held.

This is a meaningful limitation on § 512(f) and explains why the provision has produced so few successful claims. A copyright owner who genuinely (if mistakenly) believes a use is infringing has not “knowingly” misrepresented anything. The duty to consider fair use is real, but the failure becomes actionable only when the sender either did not form the belief at all or did not honestly hold it.

Willful blindness closes part of the gap

To prevent the subjective standard from becoming a license for studied ignorance, the court imported the willful blindness doctrine. A § 512(f) plaintiff may establish the necessary knowledge by showing the sender (1) subjectively believed there was a high probability that the use was a fair use, and (2) took deliberate actions to avoid confirming that probability. A sender cannot insulate itself by consciously refusing to evaluate an obvious fair use and then claiming it never formed a contrary belief. On the record before it, the court found a triable question as to whether Universal had formed the requisite good-faith belief, and remanded.

Nominal damages and standing

Universal also argued that Lenz had suffered no compensable harm and therefore could not sue. The court rejected this on two grounds. First, § 512(f) provides for the recovery of “any damages” — language broad enough to encompass even modest costs incurred in responding to a wrongful takedown, including expenses tied to vindicating one’s rights. Second, the court held that a plaintiff may recover nominal damages for a § 512(f) injury, so a claim does not fail merely because actual monetary loss is hard to quantify. This kept the courthouse doors open to ordinary users who are wrongly silenced but cannot show out-of-pocket losses.

What happened next

Both sides petitioned the Supreme Court, which denied certiorari in 2017, leaving the Ninth Circuit’s framework intact. The case returned to the district court and ultimately settled in 2018, more than a decade after Lenz first posted the clip. The 2015 opinion endures as the leading authority on the pre-takedown fair-use obligation.

Open questions

How much consideration is “enough”? The court blessed good-faith consideration without prescribing its depth, and floated automated screening as potentially adequate. Exactly what an algorithm must evaluate to satisfy the duty remains unsettled.
Can § 512(f) ever have real teeth? The subjective standard makes recovery difficult. Whether willful blindness and nominal damages meaningfully deter abusive takedowns, or merely formalize a duty rarely enforced, is debated.
How does the rule scale to mass, automated enforcement? Rights holders now send takedowns by the millions through bots. Whether wholesale automated notice programs can form a genuine, use-specific good-faith belief about fair use is a live and growing concern.

Implications

For copyright owners: Build fair-use consideration into your takedown process. A notice sent with no thought to fair use risks a § 512(f) claim and undercuts the good-faith representation the statute requires.
For platforms and users: Wrongful takedowns now carry at least the possibility of liability, and a user need not prove monetary loss to bring a § 512(f) claim.
For automated enforcement: Bulk takedown systems should be designed to flag obvious fair-use scenarios; deliberately blinding a system to fair use invites willful-blindness exposure.
For litigators: Section 512(f) remains hard to win because of the subjective standard, but Lenz supplies the two openings — failure to consider fair use at all, and willful blindness to an obvious fair use.

Frequently asked questions

What does Lenz require copyright owners to do? Form a subjective, good-faith belief about whether a use is a fair use before sending a DMCA takedown notice. They need not perform a full legal analysis, but they cannot ignore fair use entirely.

Why is it so hard to win a § 512(f) case? Because the standard is subjective. A sender is liable only if it did not genuinely believe the material was infringing. An honest but mistaken — even unreasonable — belief is not enough for liability.

Did Stephanie Lenz win damages? The Ninth Circuit confirmed she could pursue her § 512(f) claim and recover at least nominal damages without proving monetary loss. The case settled in 2018 before a final damages determination at trial.