The Cost of Defending a Dancing Baby Video

SAN FRANCISCO (CN) - After six years of legal wrangling, a jury will hear claims against Universal Music over its actions against a video of a baby dancing to a Prince song.

After Universal claimed to have identified a copyright violation in a video of a toddler dancing to Prince's "Let's Go Crazy," YouTube told the todder's mother, Stephanie Lenz, to remove the post.

U.S. District Judge Jeremy Fogel ruled Thursday that Stephanie Lenz can seek $1,275 for the 4.25 hours her attorney, Marcia Hoffman with the Electronic Frontier Foundation, spent drafting a response to a takedown notice.

"The court concludes that Universal has not established that Lenz is precluded from recovering any damages for her DMCA claim," Fogel wrote, abbreviating the Digital Millennium Copyright Act.

Though Hoffman's fees were pro bono, "it is not clear that they cannot form the basis of a damages claim here," Fogel added. "It may be that Lenz may recover the pro bono fees as an element of damages if she prevails on her DMCA claim."

Lenz also claims that, before filing suit, she spent at least 10 hours in 2007 trying to obtain counsel, "figuring out how to send - and sending - the first counternotice to YouTube, sending the second counternotice to YouTube, and ensuring that my video was restored to YouTube."

Lenz added that she completed the work on her personal computer, and that she should be compensated for her time, even though, as Fogel pointed out, "she admittedly did not lose any actual wages."

"Apparently there is no reported case that indicates definitively whether Lenz may recover for the time and resources that she herself expended in attempting to have her video reinstated under the DMCA's counter-notice procedures," Fogel wrote. "Lenz must have incurred at least minimal expenses for electricity to power her computer, internet and telephone bills, and the like, that potentially could be recoverable."

Allowing Lenz to try to recover such damages would follow a previous finding that the damages statute of the DMCA makes recovery available even if the economic damages incurred are not substantial, according to the ruling.

The video Lenz posted in February 2007 shows her children dancing in the kitchen. Though the sound quality of the 29-second video is poor, Prince's "Let's Go Crazy" can be discerned as a smiling toddler bounces with a Fisher-Price toy.

After Lenz claimed fair use, the website reposted her video. To date, the video has attracted more than a million views.

In 2010, U.S. District Judge Jeremy Fogel tossed several defenses that Universal had filed. The music label claims that Lenz filed suit for publicity.

Follow @MariaDinzeo

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