Do rightsholders have to consider fair use before a DMCA takedown?

Yes. The Ninth Circuit held that fair use must be considered to support a good-faith belief in infringement.

What happens if fair use is ignored?

Ignoring fair use can show lack of good faith and expose the sender to liability under §512(f).

Does background music in a home video automatically infringe?

No. It depends on the §107 factors. Short, incidental, noncommercial uses may be fair.

What should rightsholders keep as proof?

Keep a brief record showing you weighed purpose, nature, amount, and market effect before sending the notice.

What is the exam takeaway?

Rule: Fair use review is required pre-takedown. Reason: Good-faith belief under the DMCA includes considering §107.

Lenz v. Universal

Quick Summary

The Ninth Circuit said that copyright owners must think about fair use before sending a DMCA takedown notice. If they ignore it, they risk liability under §512(f).

CASE_TITLE: Lenz v. Universal, 815 F.3d 1145 (9th Cir. 2015)
PRIMARY_KEYWORDS: fair use, DMCA takedown, §512(f)
SECONDARY_KEYWORDS: rightsholder duty, good faith, online video

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Issues

Must a copyright holder consider fair use before sending a DMCA takedown notice?

Rules

DMCA §512(c) & §512(f): Takedown notices require a good-faith belief that use is unauthorized. Ignoring fair use can defeat that good faith and create §512(f) exposure.
Fair Use (§107): A lawful use can be non-infringing even when copyrighted content appears. The four factors must be weighed before notice is sent.

Facts (Timeline)

Stephanie Lenz posted a short home video that briefly captured a Prince song in the background.

Universal sent a DMCA takedown request to the platform to remove the video.

Lenz argued Universal did not evaluate fair use before sending the notice.

The dispute reached the Ninth Circuit on whether fair use must be considered first.

Arguments

Appellant (Lenz)

The video was fair use; it was a brief, noncommercial, home recording.
Universal acted without weighing §107 factors.
Sending a notice without fair-use review is not “good faith” and triggers §512(f).

Respondent (Universal)

Believed the music use was central and not fair.
Claimed a good-faith view that the clip infringed.
Argued the statute did not require a separate fair-use analysis before notice.

Judgment

Gavel representing the Ninth Circuit decision

The Ninth Circuit held that copyright owners must consider fair use before sending DMCA takedown notices. A failure to do so can show lack of good faith and support a claim under §512(f).

Ratio

Because fair use is a lawful, non-infringing use under §107, a rightsholder must account for it before declaring a use “unauthorized” in a DMCA notice.

Why It Matters

Protects lawful speech and small creators from wrongful takedowns.
Sets a compliance step for rightsholders: document fair-use review before notice.
Clarifies “good faith” under §512—careless notices can mean liability.

Key Takeaways

Fair use is not a defense after the fact only; it’s part of the pre-notice check.
Rightsholders should keep a written fair-use checklist/log.
Bad notices can expose senders to damages under §512(f).

Mnemonic + 3-Step Hook

Mnemonic: “Think Before You Takedown.”

Think: Weigh §107 factors.
Decide: Is use arguably fair?
Act: Only then send notice—document your review.

IRAC Outline

Issue

Do rightsholders need to assess fair use before a DMCA takedown?

Rule

Yes. Fair use must be considered to form a good-faith belief of infringement; ignoring it risks §512(f) liability.

Application

Universal’s notice, sent without a fair-use review of a short home video, could lack good faith under the statute.

Conclusion

Fair-use review is a required step before takedown. Skipping it can be actionable.

Glossary

Fair Use: A lawful use of copyrighted material under §107 after weighing four factors.
DMCA Takedown: A notice asking a platform to remove allegedly infringing content.
§512(f) Liability: Damages for knowingly making false claims in a DMCA notice.