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March 18th, 2016
Ruling Maintains That Fair Use Must Be Considered Before Issuing Copyright Takedown Notices
The Ninth Circuit declined to review its earlier opinion in Lenz v. Universal Music Corp. that copyright holders must consider fair use before seeking to remove allegedly infringing content from websites such as YouTube and Facebook. The law in California and other Ninth Circuit states remains that, prior to issuing a DMCA takedown notice, a copyright holder must have a subjective, good faith belief that allegedly infringing content is not making fair use of the copyrighted work. Our prior discussion of that important decision is here.
The original September 14, 2015 opinion offered some guidance on what would satisfy the good faith belief requirement — including the use of computer algorithms that automatically identify when nearly the entirety of a copyrighted work is used. The amended March 17, 2016 decision, however, has stripped most of that guidance away. In particular, the court removed the discussion of computer algorithms and the notion that a copyright holder's consideration of fair use "need not be searching or intensive" to satisfy the good faith belief requirement. What remains instead are foreboding statements such as "a copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to . . . liability." The amended decision has thus made it more difficult for a copyright holder to know whether they have undertaken a proper fair use analysis. As a result, many media companies and other holders of copyright portfolios may need to change the way they deal with infringing content on the Internet, particularly if they are not performing a fair use analysis prior to issuing a takedown notice.
If you have any questions about fair use under the Copyright Act, please contact Craig Whitney at (212) 826 5583 or firstname.lastname@example.org, Jeremy Goldman at (212) 705 4843 or email@example.com, or any other member of the Frankfurt Kurnit Litigation Group.
Other Entertainment Law Alerts
Major Studios and Guilds Forge New COVID-19 Production Safety Agreement
As production begins to restart in an ever changing COVID-19 landscape, The Alliance of Motion Picture and Television Producers (AMPTP) and other major studios announced an important deal with the DGA, IATSE, Teamsters, Basic Crafts, and SAG-AFTRA -- meant to ensure the safety and security of their members during the upcoming months. Read more.
September 22 2020
New York City Reopens for Film and Television Production
On July 17, 2020 NYC Mayor Bill de Blasio announced that, with the City entering Phase Four of Reopening on Monday July 20th, 2020, film and television production in the City can restart again in earnest. Read more.
July 21 2020
Los Angeles County Authorizes Television, Film, and Music Production Resume on June 12, 2020 With Strict Regulations
On June 11, Los Angeles County approved a staged resumption of film and TV production beginning June 12, 2020. However, it comes with extensive regulations. Read more.
June 16 2020