The recent passing of Prince Rodgers Nelson leaves a legacy that extends beyond music, movies, and popular culture. Important copyright law decisions and a serious discussion of artists’ rights also form part of that legacy.
In copyright, Prince has been at the center of a dispute involving Digital Millennium Copyright Act (DMCA) takedown practices and fair use. A 29 second YouTube video posted in 2007 by Stephanie Lenz of her two children included 20 seconds with portions of Prince’s “Let’s Go Crazy” recognizable in the background. The video went viral based on the younger child’s shrieking and animated (apparent) dancing to the music. Universal Music Corporation, the copyright owner, issued a DMCA takedown notice to YouTube based on alleged copyright infringement, and YouTube complied. Ms. Lenz responded by first sending a counter-notification claiming fair use, prompting YouTube to restore the video, and then suing Universal for misrepresentation under the DMCA, seeking a declaration of fair use and damages for the misrepresentation.
The lawsuit prompted Prince to publicly announce his intent to “reclaim his art on the internet,” with Universal concurrently promising to work with Prince in seeking removal of ALL user-generated content involving Prince’s music from the internet, “as a matter of principle.”
In seeking to avoid liability under the DMCA for misrepresentation, Universal argued to the trial court that imposing any substantial requirement on a copyright owner to consider fair use before sending a takedown notice imposed too great a burden. Universal argued that mere good faith consideration of fair use – in essence, a “check the box” approach – without any investigation or analysis should be sufficient to avoid liability for misrepresentation under the DMCA.
Last September, the 9th Circuit Court of Appeals considered cross-appeals from Universal’s motion for summary judgment seeking dismissal of the Lenz DMCA misrepresentation claim, which the trial court had denied. Holding that fair use arises both procedurally as an affirmative defense, validly excusing otherwise infringing conduct, and substantively as a legal requirement that the accused work be considered non-infringing, the Court of Appeal ruled that because the copyright statute “created a type of non-infringing use, fair use is 'authorized by the law' and a copyright holder must consider the existence of fair use before sending a takedown notification.” The case, which will reach its ninth anniversary this September, is still pending.
Prince was also a fervent advocate of artists’ rights as superseding the typical terms of music contracts used by record labels. During a mid-1990s legal battle with Warner Brothers, which “owned” Prince’s music, name and publicity rights, Prince frequently appeared in public with the word “slave” written on his face to call attention to industry standard contract terms that he believed contravened an artist’s intrinsic and unassignable right to creative control. Although losing the initial legal battle, Prince later won the war when Warner Brother returned ownership of his catalog to him.
While nothing can overshadow his decades of musical artistry, Prince also leaves behind a significant impact on both historical forms of intellectual property and the framework under which legal protections for artists’ creative rights are viewed.
