Landmark Fair Use Decision: LA Times, Variety and Daily Journal Turn to Spokesperson Michael Donaldson to Discuss its Impact

On Sept. 14, 2015, the 9th Circuit Court of Appeals in San Francisco ruled that copyright holders must consider fair use prior to issuing a Digital Millennium Copyright Act (DMCA) takedown notice. The case stemmed from a 2007 incident, when Universal Music Group issued a takedown notice for a YouTube video that featured 29 seconds of the Prince song, “Let’s Go Crazy,” in the background. The woman who uploaded the video sued Universal and the court ruled that the video fell under fair use, maintaining that the law clearly allows for the fair use of copyrighted material.

Partner Michael Donaldson spoke with reporters from the Los Angeles Times, Variety and Daily Journal regarding this landmark decision.

“Procedurally, the person claiming [fair use] has to prove it, but it is not an affirmative defense, as in ‘I did something wrong and this is my way of getting out of it,’” Mr. Donaldson said in an interview for the Variety article, “‘Fair Use’ Should be Considered in Case of Homemade Prince Video, Says Appeals Court”.

In the Daily Journal article, “Fair use ruled a right, not a defense,” Mr. Donaldson explained that, “Presumably, these holdings will apply to cease and desist letters that some attorneys like to churn out without considering whether a use is a fair use or not. Unfortunately, such letters often work when they are aimed at cash-strapped filmmakers.”

When asked by the Los Angeles Times what the likely result of this decision will be, Mr. Donaldson said he expects fewer takedown notices of “mom-and-pop postings that happen to include a song in the background and do not make money.”